                            NOT FOR PUBLICATION WITHOUT THE
                           APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
 internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                     SUPERIOR COURT OF NEW JERSEY
                                                     APPELLATE DIVISION
                                                     DOCKET NO. A-3074-16T4

IN THE MATTER OF THE APPROVAL
OF THE CHARTER AMENDMENT OF
CENTRAL JERSEY COLLEGE PREP
__________________________________

                Argued May 30, 2019 – Decided June 7, 2019

                Before Judges Haas, Sumners and Mitterhoff.

                On appeal from the New Jersey Department of
                Education.

                William C. Morlok argued the cause for appellant
                Franklin Township School District (Parker McCay, PA,
                attorneys; Brett E.J. Gorman, of counsel and on the
                briefs; Kayleen Egan, on the briefs).

                Brenda C. Liss argued the cause for respondent Central
                Jersey College Prep Charter School (Riker Danzig
                Scherer Hyland & Perretti, LLP, attorneys; Brenda C.
                Liss, of counsel and on the brief; Stephen M. Turner,
                on the brief).

                Geoffrey N. Stark, Deputy Attorney General, argued
                the cause for respondent Department of Education
                (Gurbir S. Grewal, Attorney General, attorney; Melissa
                Dutton Schaffer, Assistant Attorney General, of
                counsel; James M. Esposito, Deputy Attorney General,
                on the brief).
PER CURIAM

      Appellant Franklin Township Board of Education (Franklin) appeals from

the February 28, 2017 final decision of the Commissioner of Education

(Commissioner), approving an application by Central Jersey College Prep

Charter School (CJCP) to amend its charter to increase enrollment, add a

satellite campus, and move its main campus to a new facility. 1 We affirm.

                                        I.

      We begin by reciting the essential background facts and procedural history

of this matter. CJCP is a charter school located in Franklin Township, Somerset

County, with an approved "region of residence," 2 that includes Franklin



1
  Calendared back-to-back with this appeal, North Brunswick Township Board
of Education (North Brunswick), New Brunswick Board of Education (New
Brunswick) and Piscataway Township Board of Education (Piscataway)
separately appealed from this same decision. North Brunswick Twp. Bd. of
Educ. v. Harrington (North Brunswick), No. A-3415-16. Two other appeals
from decisions by the Commissioner regarding charter schools are also
calendared back-to-back with this case. Highland Park Bd. of Educ. v.
Harrington (Highland Park II), No. A-3455-16; Bd. of Educ. of the Twp. of
Piscataway v. N.J. Dep't of Educ. (Piscataway), No. A-5427-16. Because of this
overlap, the reader is encouraged to review all four of our opinions in these
cases, which are being released simultaneously.
2
  The term "region of residence" is defined as "contiguous school districts in
which a charter school operates and is the charter school's district of residence."
N.J.A.C. 6A:11-1.2.


                                                                           A-3074-16T4
                                        2
Township, New Brunswick, and North Brunswick. The school began operation

in 2006. It was approved under the Charter School Program Act of 1995,

N.J.S.A. 18A:36A-1 to -18 (the Charter School Act or CSPA), to serve students

in grades kindergarten through eighth, with a maximum enrollment of forty-

eight students per grade, and a projected total enrollment of 624 students for the

2019-2020 school year. Its mission is "to prepare its students for post-secondary

education and beyond with the necessary skills and knowledge they need to

intellectually and emotionally reach their maximum potential."

      CJCP is a high-performing, Tier 1 school, a ranking it received from the

New Jersey Department of Education's (Department or NJDOE) assessment of

its academic performance based on the metrics set forth in the State's Academic

Performance Framework governing charter schools. 3          It was awarded the

National Blue Ribbon Award in 2016, named a High Performing Title I Reward

School in 2015, featured as a Top Performing High School in U.S. News and

World Report in 2015 and 2016, and designated as a "Top Ten Middle School"

by JerseyCAN in 2013.



3
  The "Performance Framework" as referenced in N.J.A.C. 6A:11-2.3(b)(2), and
as defined in N.J.A.C. 6A:11-1.2, sets specific quantitative and qualitative
standards for academic, financial, and organizational performance.


                                                                          A-3074-16T4
                                        3
      Appellant Franklin Township Board of Education (Franklin) operates the

traditional Franklin Township Public Schools (FTPS).         For the 2016-2017

school year, approximately 7000 students from Franklin Township were

enrolled in FTPS. Two charter schools also operate within the district, CJCP

and Thomas Edison EnergySmart Charter School (TEECS). A third school,

Ailanthus Charter School, received approval to begin operation for the 2018-

2019 school year. In re Ailanthus Charter Sch., No. A-0945-16 (App. Div. May

11, 2018). As of April 2017, 330 students from Franklin were enrolled in CJCP,

311 students were enrolled in TEECS, and forty-eight students were enrolled in

out-of-district charter schools (Hatikvah International Charter School

(Hatikvah) and the Greater Brunswick Charter School).

      On December 1, 2016, CJCP submitted a charter amendment application

seeking to: 1) expand its maximum enrollment from 624 to 1320 students by

the 2019-2020 school year; 2) add a satellite campus in New Brunswick (within

its region of residence) by the 2019-2020 school year; and 3) relocate the current

facility to a new facility on Mettlers Road in Somerset. It proposed to enroll

960 students at the Somerset campus and 360 students at the New Brunswick

campus. In accord with N.J.A.C. 6A:11-2.6(a)(2), CJCP submitted a board

resolution authorizing the request to amend, a copy of the proposed revisions to


                                                                          A-3074-16T4
                                        4
the charter, and a rationale statement in support of the proposed amendment.

      CJCP stated that its need for expansion was "driven primarily by the heavy

demand from the community to be a part of the educational success that it had

instilled."   It represented that the number of applications had dramatically

increased over the past few years, totaling 465 for the 2014-2015 school year,

and 956 for the 2016-2017 school year. CJCP had, at the time of the application,

628 students on its waiting list and was only able to accept approximately 25%

of the application pool. Thus, it maintained that under the current maximum

capacity of forty-eight students per grade, it was "unable to service the vast

number of students who would benefit" from the education provided by the

school.

      CJCP anticipated that demand for admission would continue to increase

as a result of its awards, expansion, and proposed new facilities. It submitted

student achievement results showing that in the spring of 2016, its students had

significantly outperformed their peers attending FTPS in all PARCC

assessments. For the 2016-2017 school year: 65% of their high school students

were enrolled in at least one Advanced Placement (AP) class; 84% had taken

college-level courses; and for the fifth consecutive year, 100% of the students

had graduated high school and were accepted into a four-year college. Expanded


                                                                        A-3074-16T4
                                       5
enrollment would allow it to increase its AP and college-level courses and to

offer a wider range of extracurricular activities.

      If approved, CJCP planned to hire approximately twenty-eight new

teachers, together with additional administrative staff to meet their staffing

needs. Under the expansion, the school projected the following expenses for

teacher salaries:    $2,572,388 (2017-2018); $3,081,559 (2018-2019); and

$3,510,006 (2019-2020).

      CJCP also sought to amend its charter to add a satellite campus in New

Brunswick "to increase opportunities of education equity for all students in its

attendance zone." CJCP identified two facilities for consideration, but had not

finalized its selection pending the approval to operate a satellite campus.

      CJCP asserted that the addition of the New Brunswick satellite campus

would allow for the "accessibility and replication" of the school's "existing

model to service this high-need community and the increased number of students

attending [the] school," and would open the opportunities offered by CJCP to "a

much larger student base in need of a college education." CJCP would also "be

able to cut the costs within the schools by utilizing district-wide resources

between the New Brunswick and Somerset campuses."

      Although CJCP served New Brunswick students, as part of its "region of


                                                                          A-3074-16T4
                                         6
residence," it had received only ninety-three applications from families in New

Brunswick for the 2016-2017 school year, of which sixteen students were

enrolled through the lottery system, and seventy-seven students were placed on

the waiting list. The applications from New Brunswick students for the 2016-

2017 school year had doubled from the applications for the 2015-2016 school

year, but were still less than expected given that there were no charter schools

located in the city of New Brunswick. CJCP cited to studies that emphasized

"the importance of residential proximity for charter schools to be a real option

for parents," and expressed confidence that positioning the satellite campus in

New Brunswick will increase the awareness of the school within the community

and result in increased enrollment.

      If approved, CJCP represented that it would "run an enrollment campaign"

to reach out to the entire New Brunswick community. "Brochures and fliers

would be translated for non-English speakers and distributed to various

organizations, including but not limited to places of worship, community

centers, enrichment programs and service organizations." It would also hold

open houses at the school and at other locations accessible to members of the

community.

      CJCP projected that enrollment at the satellite campus would total:


                                                                        A-3074-16T4
                                       7
     Grade         2016-2017        2017-2018       2018-2019        2019-2020
    Grade 6            0                0               72               72
    Grade 7            0                0               72               72
    Grade 8            0                0               0                72
    Grade 9            0                0               72               72
    Grade 10           0                0               0                72
    Grade 11           0                0               0                0
    Grade 12           0                0               0                0
     Total             0                0              216              360

      Lastly, CJCP sought to relocate its main facility to an approximately

90,000 square foot building located on Mettlers Road in Somerset.           CJCP

acknowledged that part of the reason for the request to relocate was the fact that

the current "landlord's recent and unreasonable actions and legal challenges have

made it impossible to stay in [the current building] beyond this school year ." It

also sought to relocate because the current facility did not provide enough space

and amenities to accommodate its students. The new larger facility had fifty-

five classrooms, a media center, cafeteria, auditorium, and conference rooms

among other features. Further, although the rent for the new facility was higher,

CJCP determined that considering "all factors" including legal expenses and

maintenance costs, "the new facility will not significantly increase the

percentage of the school's general fund allocated for the building/land rent and

maintenance."

      CJCP projected that enrollment at the Somerset Campus would total:



                                                                          A-3074-16T4
                                        8
     Grade          2016-2017      2017-2018        2018-2019       2019-2020
  Kindergarten         48             72               96               96
    Grade 1            48             72               98               96
    Grade 2            48             72               96               96
    Grade 3                           48               72               96
    Grade 4                                            48               72
    Grade 5                                                             48
    Grade 6            48              72              96               96
    Grade 7            48              48              72               96
    Grade 8            48              48              48               72
    Grade 9            48              48              48               48
   Grade 10            48              48              48               48
   Grade 11            48              48              48               48
   Grade 12            48              48              48               48
     Total             480             624             816             960

      More than 100 individuals and organizations sent letters to the

Commissioner supporting CJCP's application, including the Latino Leadership

Alliance of New Jersey, which expressed its "strong support" for the application.

       On January 13, 2017, Franklin submitted a letter to the Commissioner

asking her to deny CJCP's application.         It claimed that CJCP had not

demonstrated that it could meet the challenges posed by its rapid expansion,

including tripling its current enrollment and opening two new facilities.

Franklin maintained that this "ill-advised amendment" threatened "the

educational viability of CJCP's students." It asked the Commissioner to deny

the application, or in the alternative, to reduce the "proposed increase in

enrollment and facilities."

      Franklin claimed that CJCP had not allocated sufficient funds to attract


                                                                         A-3074-16T4
                                       9
and adequately staff its schools with competent professionals, which would

result in "catastrophic consequences to the viability of the school and the

delivery of educational services." It calculated that the new teachers would

receive an average salary of $33,486.35 per year ($937,618 (budget increase for

teacher salaries) ÷ 28 (new teachers)). That annual salary for new teachers was

significantly less than CJCP's median staff salary of $49,200 for the 2015-2016

school year. As a result, Franklin asserted that CJCP would "struggle to find

qualified teachers to run a rigorous college preparatory curriculum." Franklin

also maintained that CJCP's staffing goal for its Somerset campus did not

comport with its stated goal of small class sizes and a low teacher-student ratio

because it would not be fully staffed for several years after the increased

enrollment.

      Moreover, Franklin alleged that there was insufficient community demand

for the expansion, because the lack of applications from New Brunswick

families for the Somerset campus did not necessarily mean that there was

community support for a satellite campus in New Brunswick. Further, CJCP

sought to "expand enrollment in Somerset despite the fact[] that only 87% of the

students enrolled at the CJCP Somerset campus reside in the district of

residence."   Franklin asserted that CJCP's "argument that more seats are


                                                                         A-3074-16T4
                                      10
necessary in Somerset to meet the demand seems illogical since 13% of the

students currently attending CJCP reside in a town outside the district of

residence."

      Next, Franklin asserted that CJCP had "a poor track record" with English

Language Learners (ELL). It argued that as of the 2014-2015 school year, CJCP

had not enrolled any ELL students, in contrast to the Franklin Township school

district, which had 600 ELL students.

      Lastly, Franklin had concerns relating to the suitability of the Mettlers

Road facility. According to Franklin, the facility was apparently located in a

ROL Zone (Research/Office/Laboratory Zone), where schools were not a

permitted use.    Although the Planning Board ultimately approved CJCP's

application for a use variance, it imposed "significant conditions" on the project,

which Franklin asserted "undermine[d] its viability as a school location."

Moreover, CJCP's proposed location for a gymnasium was "located within the

setback of a gas transmission pipeline, potentially exposing the students to a

dangerous condition."

      CJCP also only intended to use approximately one-half of the existing

Mettlers Road facility, leaving the remainder vacant and available for lease.

Thus, the property owner could lease the balance of the building to a commercial


                                                                           A-3074-16T4
                                        11
office or research laboratory, thereby potentially "creating a number of security

risks for the students, who would be forced to share a building." Franklin also

noted that CJCP's proposal to move its main facility had resulted in

"threatened/pending litigation" with its current landlord.

      On January 27, 2018, the Superintendents of Edison, Highland Park, New

Brunswick, Sayreville, South River, and Metuchen Township Public School

Districts submitted a letter to the Commissioner opposing the applications filed

by CJCP, Hatikvah, and TEECS, to expand their enrollments. They alleged that

Hatikvah and TEECS, but not CJCP, "enroll a significantly more segregated

student body than any of the resident or non-resident sending districts with

respect to race, socioeconomic status, and need for special education."

      Boards of Educations from ten other school districts, including the

appellants in the companion appeal, North Brunswick, No. A-3415-16, passed

almost identical resolutions calling for a general moratorium on new charter

school seats in Middlesex and Somerset Counties. The Boards also alleged that

Hatikvah and TEECS, but not CJCP, enrolled a "significantly more segregated

student body" than any of the resident or non-resident sending districts.

      By letter dated January 31, 2017, CJCP responded to each of Franklin's

claims. With regard to Franklin's argument that the "existing charter schools


                                                                            A-3074-16T4
                                      12
located in Middlesex and Somerset counties are already lacking in demand in

their own designated communities," CJCP stated that it had "been experiencing

an increase in demand for enrollment from students living within its sending

district." It asserted that the number of applicants from its region of residence

totaled: 302 (2014-2015); 684 (2015-2016); and 734 (2016-2017). For the

2017-2018 school year, CJCP had received 748 applications as of January 2017,

and anticipated receiving over 1200 applications by the 2017-2018 school year

deadline.

      With regard to Franklin's claim that only 87% of the students enrolled in

CJCP resided in the school's region of residence, CJCP explained that that

number was "a result of upperclassmen high school students from outside of the

attendance zone who started to attend CJCP when they were sixth graders. CJCP

pointed out that as these students graduated, the ratio of students from CJCP's

region of residence had increased," as follows: 71% (2014-2015); 80% (2015-

2016); 87% (2016-2017). As a result, CJCP anticipated that approximately 94%

of its students would reside in its region of residence in the 2017-2018 school

year, and 100% by the 2018-2019 school year.

      Lastly, CJCP stated that Franklin's claim that TEECS and Hatikvah

enrolled a more segregated student body was a tacit admission that CJCP's


                                                                         A-3074-16T4
                                      13
student body was representative of its sending districts. CJCP represented that

the demographics of its students were: 14% (White); 17% (Hispanic); 30%

(African American); 38% (Asian); and 1% (other).

      By letter dated February 10, 2017, the Latino Coalition of New Jersey, a

civil rights organization, and Franklin C.A.R.E.S., a group of parents of FTPS

students, informed the Commissioner that they had filed a federal civil rights

complaint against CJCP, alleging that CJCP engaged in segregative practices

relating to enrollment of students with disabilities and ELL students.4 CJCP

responded to the allegations the next day, and "vehemently" denied engaging in

any form of discrimination. CJCP stated it was an inclusive and diverse school

that, for the past ten years, had been "successfully educating students from

Franklin Township, North Brunswick and New Brunswick under the strict

regulatory oversight of the NJDOE," and was in "complete compliance with all

NJDOE regulations regarding enrollment policies."

      CJCP explained that it solicited and accepted applications from all

interested students. Students gained enrollment through a publicly held random

lottery process that blindly selected a certain number of students to fill available



4
  Franklin did not include the letter or the complaint in its appendices. It also
provided no information concerning the outcome, if any, of this litigation.
                                                                            A-3074-16T4
                                        14
seats. Importantly, CJCP did not collect any information at the time of the

application as to the students' socioeconomic and ethnic background, disability

status, or English language skills. Any disparity in demographics of its student

enrollment, as compared to FTPS, was "completely attributable to parent-

choice." Further, the request to open a satellite campus in New Brunswick was

"specifically designed to give more ethnically diverse, economically

disadvantaged, and ELL students access to a high quality, public education ."

      Lastly, CJCP claimed that it had "raised the bar of what should be

expected in public education in Franklin Township with a proven track record

of academic success." Its students had outperformed their peers in FTPS in

every subject, as represented by the 2016 PARCC test results:

      2016 PARCC Results – All Students
          100                                                              91.1
                                                        73.2                      77.3
          80
                 63.2                     60.6
                               51
          60                                                               44            47
                        42                                                                    CJCP
          40                                     26.4          30.3                           Franklin
                                    24
          20

           0
                Algebra I    Geometry    Algebra II     Math-MS       ELA-MS      ELA-HS




                                                                                                         A-3074-16T4
                                                        15
      2016 PARCC ELA Results - Free/Reduced Lunch Students
          100     83.4
                                 74.5             78.5



           50             30.9             33.2            32     CJCP
                                                                  Franklin


           0
                  ELA-MS         ELA-HS             All




      2016 PARCC Math Results - Free/Reduced Lunch Students
          100
                   61.1
                                 47.6             50.7
           50                                                     CJCP
                          20.3          20.8              20.5
                                                                  Franklin


            0
                  Math-MS        Math-HS           All




      On February 28, 2017, the Commissioner granted CJCP's application to

amend its charter based on the recommendations and her review of the record.

In a brief written decision, the Commissioner noted that the Department had

"completed a comprehensive review including, but not limited to, student

performance on statewide assessments, operational stability, fiscal viability,

public comment, fiscal impact on sending districts, and other information in

order to make a decision regarding the school's amendment request." The

Commissioner confirmed the school's maximum enrollment for the "approved

region of residence of Franklin, New Brunswick and North Brunswick," as


                                                                             A-3074-16T4
                                        16
follows:

               Grade       2017-2018        2018-2019       2019-2020
            Kindergarten      72               96               96
              Grade 1         72               96               96
              Grade 2         72               96               96
              Grade 3         48               72               96
              Grade 4                          48               72
              Grade 5                                           48
              Grade 6           72            168              168
              Grade 7           48            144              168
              Grade 8           48             48              144
              Grade 9           48            120              120
             Grade 10           48             48              120
             Grade 11           48             48               48
             Grade 12           48             48               48
               Total           624            1032            1320

      The Commissioner also confirmed the new site location at Mettlers Road,

and directed CJCP to "provide all facility related documents to the Office of

Charter and Renaissance Schools and the Somerset County Office of

Education." Further, the Commissioner directed that once CJCP had identified

the final site of the satellite campus, it should provide the Department with the

required amended documentation pursuant to N.J.A.C. 6A:11-2.6. This appeal

followed.

      On appeal, Franklin raises the following contentions:

              POINT I

              THE COMMISSIONER'S DECISION SHOULD BE
              REVERSED   BECAUSE   SHE   FAILED  TO
              CONSIDER THE SEGREGATIVE IMPACT CJCP'S


                                                                         A-3074-16T4
                                       17
             CHARTER AMENDMENT WOULD HAVE ON THE
             DISTRICT.

             POINT II

             THE   COMMISSIONER'S  DECISION                     WAS
             ARBITRARY,      CAPRICIOUS,                        AND
             UNREASONABLE.

                                        II.

      In Point I, Franklin argues that the Commissioner's decision was arbitrary,

capricious and unreasonable because she failed to consider the alleged

segregative impact of CJCP's charter amendment on the district. We disagree.

      The scope of judicial review of a final decision of the Commissioner on a

charter school application is limited. In re Proposed Quest Acad. Charter Sch.

of Montclair Founders Grp., 216 N.J. 370, 385 (2013). We may reverse only if

the Commissioner's decision is "arbitrary, capricious, or unreasonable." Ibid.

In making that determination, our review is generally restricted to three

inquiries:

             (1) whether the agency's action violates express or
             implied legislative policies, that is, did the agency
             follow the law; (2) whether the record contains
             substantial evidence to support the findings on which
             the agency based its action; and (3) whether in applying
             the legislative policies to the facts, the agency clearly
             erred in reaching a conclusion that could not reasonably
             have been made on a showing of the relevant factors.


                                                                         A-3074-16T4
                                       18
            [Id. at 385-86 (quoting Mazza v. Bd. of Trs., 143 N.J.
            22, 25 (1995)).]

      "When an agency's decision meets those criteria, then a court owes

substantial deference to the agency's expertise and superior knowledge of a

particular field." In re Herrmann, 192 N.J. 19, 28 (2007). This court "may not

substitute its own judgment for the agency's even though the court might have

reached a different result. . . ." In re Carter, 191 N.J. 474, 483 (2007) (quoting

Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)).

      Charter schools are public schools that operate under a charter granted by

the Commissioner, operate independently of a local board of education, and are

managed by a board of trustees. N.J.S.A. 18A:36A-3(a). The Legislature found

and declared that

            the establishment of charter schools as part of this
            State’s program of public education can assist in
            promoting comprehensive educational reform by
            providing a mechanism for the implementation of a
            variety of educational approaches which may not be
            available in the traditional public school classroom.
            Specifically, charter schools offer the potential to
            improve pupil learning; increase for students and
            parents the educational choices available when
            selecting the learning environment which they feel may
            be the most appropriate; encourage the use of different
            and innovative learning methods; establish a new form
            of accountability for schools; require the measurement
            of learning outcomes; make the school the unit for


                                                                          A-3074-16T4
                                       19
            educational improvement; and establish                new
            professional opportunities for teachers.

                  The Legislature further finds that the
            establishment of a charter school program is in the best
            interests of the students of this State and it is therefore
            the public policy of the State to encourage and facilitate
            the development of charter schools.

            [N.J.S.A. 18A:36A-2.]

      It is well established that, "[r]ooted in our Constitution, New Jersey's

public policy prohibits segregation in our public schools. . . ." In re Grant of

Charter Sch. Application of Englewood on the Palisades Charter Sch., 164 N.J.

316, 324 (2000). In that regard, the CSPA provides that "[t]he admission policy

of the charter school shall, to the maximum extent practicable, seek the

enrollment of a cross section of the community’s school age population

including racial and academic factors." N.J.S.A. 18A:36A-8(e). See N.J.A.C.

6A:11-4.5(e) (charter school lottery). Further, N.J.S.A. 18A:36A-7 provides:

            A charter school shall be open to all students on a space
            available basis and shall not discriminate in its
            admission policies or practices on the basis of
            intellectual or athletic ability, measures of achievement
            or aptitude, status as a person with a disability,
            proficiency in the English language, or any other basis
            that would be illegal if used by a school district;
            however, a charter school may limit admission to a
            particular grade level or to areas of concentration of the
            school, such as mathematics, science, or the arts. A
            charter school may establish reasonable criteria to

                                                                          A-3074-16T4
                                       20
            evaluate prospective students which shall be outlined in
            the school’s charter.

      Our Supreme Court has held that the "form and structure" of the

segregative analysis under the CSPA is up to the Commissioner and the

Department to determine. Englewood, 164 N.J. at 329. "The Commissioner

must consider the impact that the movement of pupils to a charter school would

have on the district of residence" and "be prepared to act if the de facto effect of

a charter school were to affect a racial balance precariously maintained in a

charter school's district of residence." Id. at 328. "The Commissioner must

vigilantly seek to protect a district's racial/ethnic balance during the charter

school's initial application, continued operation, and charter renewal

application." In re Red Bank Charter Sch., 367 N.J. Super. 462, 472 (App. Div.

2004).

            [S]egregation, however caused, must be addressed. To
            be timely addressed, assessment cannot wait until after
            a charter school has been approved for operation and is
            already taking pupils from the public schools of a
            district of residence. The Commissioner must assess
            whether approval of a charter school will have a
            segregative effect on the district of residence of the
            charter school. Once a charter school is operating, the
            Commissioner must also assess whether there is a
            segregative effect in any other district sending pupils to
            the approved charter school.

            [Englewood, 164 N.J. at 330.]

                                                                            A-3074-16T4
                                        21
      In response to the Court's decision in Englewood, and to its companion

case, In re Greater Brunswick Charter School, 164 N.J. 314, 315 (2000), the

Board adopted regulations requiring the Commissioner, prior to approval of a

charter, N.J.A.C. 6A:11-2.1(j), and on an annual basis thereafter, N.J.A.C.

6A:11-2.2(c), to "assess the student composition of a charter school and the

segregative effect that the loss of the students may have on its district of

residence. The assessment shall be based on the enrollment from the initial

recruitment period pursuant to N.J.A.C. 6A:11-4.4(a) and (b)."          32 N.J.R.

3560(a), 3561 (Oct. 2, 2000).    N.J.A.C. 6A:11-4.4(a) provides that "a charter

school shall submit to the Commissioner the number of students by grade level,

gender and race/ethnicity from each district selected for enrollment from its

initial recruitment period for the following school year."

      Moreover, in response to a public comment about the readoption of the

implementing regulations with amendments, the Commissioner explained that:

            20. COMMENT: The commenter requested revisions
            to N.J.A.C. 6A:11-2.1 and 2.2 to ensure the Department
            assesses the segregative effects of charter schools not
            only by race, but also on religion, ethnicity and gender,
            students with disabilities, English language learner
            status, low-income students (socioeconomic status),
            and students at risk of dropping out or with other
            special academic needs.



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                                       22
            RESPONSE: The Department assesses the segregative
            effects of charter schools by many factors other than
            race, including those referenced by the commenter,
            although it is not specifically required by or enumerated
            in N.J.A.C. 6A:11-2.1 and 2.2. The factors that are
            considered are predicated on the composition of the
            involved school districts. In light of this fact specific
            analysis, the Department contends revisions to N.J.A.C.
            6A:11-2.1 and/or 2.2 are not necessary or warranted.

            [46 N.J.R. 2351(c), 2353 (Dec. 1, 2014).]

      On appeal, Franklin claims that CJCP is not representative of a cross

section of the community's school age population because it over-enrolls Asian

students, and under-enrolls Hispanic students, economically disadvantaged

students (defined as students receiving free or reduced cost lunch), ELL

students, and special needs students.       However, before the Commissioner,

Franklin only asserted that CJCP had a "poor track record" with ELL students,

and presented no evidence to the Commissioner regarding the racial and

economic segregative effects of CJCP's increased enrollment.

      Further, the other opposing districts included data regarding the

segregative effect of two different charter schools, but not CJCP, and there is no

indication in this record whether the Latino Coalition and Franklin C.A.R.E.S

presented any substantiated evidence of a segregative effect on the district.

Thus, there was nothing in this record to support Franklin's assertion that CJCP's


                                                                          A-3074-16T4
                                       23
enrollment practices will have a segregative effect on the district. Red Bank,

367 N.J. Super. at 472-85.

      It was also undisputed that CJCP did not discriminate in its admission

policies or practices. In accordance with the CSPA, CJCP operated a publicly-

held random race-blind lottery. In addition, CJCP did not collect any data at the

time of the application about the students' socioeconomic and ethnic

background, disability status, and English language skills.

      Additionally, even if Franklin had presented the information about student

enrollment data to the Commissioner at the time she was considering CJCP's

application, it would not have presented a basis to reject the application.

Franklin compared the racial/ethnic demographics of CJCP and TEECS (not a

party to this appeal) students, with FTPS students for the school year 2016-2017,

as follows:

Demographic                   FTPS Students CJCP Students TEECS Students
White                                 12.8%         13.3%            14.7%
Asian                                 16.0%         34.0%            67.6%
Hispanic                              25.4%         18.8%             3.5%
Black                                 37.4%         31.1%            12.6%
Free or reduced price lunch           47.7%         28.0%             7.0%
Special Education                     16.0%          8.0%             3.0%
ELL or LEP                             7.0%            0%             3.0%

It also cited to the change in CJCP's demographics, as follows:




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                                      24
CJCP's                2011-2012   2012-2013   2013-2014   2014-2015     2015-2016
Demographics
White                      6.6%        8.0%        9.5%         12.0%       13.3%
Asian                      5.7%        7.7%       15.4%         19.6%       34.0%
Hispanic                  20.4%       21.4%       20.9%         20.3%       18.8%
Black                     66.7%       62.3%       53.9%         47.5%       31.1%
Economically              33.0%       44.0%       43.0%         39.0%       28.0%
disadvantaged
ELL or LEP                   0%          0%          0%           0%           0%
Special education          8.0%        9.0%        7.0%         7.0%         8.0%

      The demographics cited by Franklin do not present a sufficient basis for

assessing segregative effect. The data provided shows some disparity between

the enrollment of Asian, Hispanic, economically disadvantaged, and ELL

students in FTPS. Significantly, however, Franklin does not argue that FTPS

are becoming more segregated, and in fact, the data submitted by the

Commissioner indicates that they have not. See Bd. of Educ. of Morris Sch.

Dist. v. Unity Charter Sch., EDU 1797-02, final decision, (May 22, 2003)

("student population for purposes of comparison with a charter school is not the

public school enrollment of the district of residence, but 'the community's school

age population,' a group for which no comparison can here be made, since the

present record is virtually devoid of information about it").

      As the Commissioner correctly points out, the District's student

demographics, including socioeconomic and racial demographics, have, as set

forth below, remained relatively static from the 2010-2011 to the 2015-2016


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                                       25
school year, and thus there was no indication that CJCP's operations were

exacerbating the racial imbalance:

Students                    Franklin             Franklin
Pre-K to 12                 2010-2011            2016-2017
White                       18.7%                13.7%
Black or African American   40.3%                38.0%
Asian                       18.4%                16.7%
Hispanic                    21.5%                29.5%
LEP                         5.1%                 7.8%
Special needs               15.2%                16.0%
Free or reduced lunch       36.6%                45.0%

      A comparison of the demographic data indicates that CJCP enrolled a

diverse student population, albeit, a population that did not exactly match FTPS

demographics.    Moreover, CJCP maintained that the expansion and the

operation of a satellite campus in New Brunswick would allow it to develop an

even more diverse student population. To that end, Franklin has not presented

any evidence that the District was becoming more segregated, or that CJCP's

existence has worsened the existing racial imbalance. See Bd. of Educ. of

Hoboken v. N.J. State Dep't of Educ., No. A-3690-14 (slip op. at 15) (App. Div.

June 29, 2017) (affirmed charter renewal where there were no allegations that

the school's practices after the enrollment of students by an impartial lottery

exacerbated the racial or ethnic balance); see also In re Renewal Application of

TEAM Acad. Charter Sch., ___ N.J. Super. ___, ___ (slip op. at 14) (stating that

"[t]he mere fact that the demographics of the charter schools do not mirror the

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                                        26
demographics of the [d]istrict does not alone establish a segregative effect .").

      In that regard, this case is distinguishable from Red Bank, 367 N.J. Super.

at 462.   In that case, the Board of Education (Board) appealed from the

Commissioner's decision approving an application by a charter school to renew

its charter. Id. at 467. The Board opposed the application on the basis that the

school's operation had worsened the racial/ethnic imbalance, citing to data

showing that since the charter school opened, the percentage of non-minority

students in the traditional public schools had decreased from 32% to 18%, and

a disproportionate number of non-minority students were enrolled in the charter

school. Id. at 469. The Board also alleged that prior to standardized testing, the

charter school frequently returned enrolled minority students with poor

academic records to the traditional public schools. Id. at 479.

      The Commissioner in Red Bank did not specifically address the

segregation argument below. Id. at 476. However, this court discerned from

the entire record, including the Commissioner's brief on appeal, that the

Commissioner had concluded there was "no evidence in the record to suggest

that the charter school has promoted racial segregation among the district's

school-age children," and "there is no requirement that the two schools have

exactly the same minority/non-minority enrollment figures." Ibid. (internal


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                                       27
quotation marks omitted). We held that "the Commissioner is to assess whether

or not the charter school is seeking 'a cross section of the community's school

age population.'" Ibid. (quoting N.J.S.A. 18A:36A-8(e)).

      Despite the disparity in the enrollment, we affirmed the Commissioner's

decision, finding that:

            The Charter School should not be faulted for
            developing an attractive educational program.
            Assuming the school's enrollment practices remain
            color blind, random, and open to all students in the
            community, the parents of age eligible students will
            decide whether or not to attempt to enroll their child in
            the Charter School and any racial/ethnic imbalance
            cannot be attributed solely to the school. To close this
            school would undermine the Legislature's policy of
            "promoting comprehensive educational reform" by
            fostering the development of charter schools. N.J.S.A.
            18A:36A-2.

            [Id. at 478.]

      Nonetheless, this court found that the school's post-enrollment practices

were "disturbing and difficult to dismiss on this record."              Id. at 480.

Additionally,

            [w]hile the Charter School's enrollment practices might
            not be the sole cause of existing racial/ethnic
            imbalance, the manner of operation of the school after
            its color-blind lottery, warrants closer scrutiny to
            determine whether some of the school's practices may
            be worsening the existing racial/ethnic imbalance in the
            district schools.

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                                      28
             [Ibid.]

      Thus, we remanded the matter to the Commissioner to determine "whether

any remedial action is warranted." Id. at 482. Here, and unlike in Red Bank,

there are no allegations that CJCP's practices, after the enrollment of students

by an impartial lottery, exacerbated the racial, ethnic, or special needs balance

in FTPS. Franklin does not cite to any policy or procedure utilized by CJCP in

a manner to further exacerbate that balance. Instead, Franklin simply claimed,

in general terms, that CJCP was more segregated than the FTPS—a claim

insufficient to warrant further review on an application to amend.

      This case is also distinguishable from two other cases cited by Franklin.

In In re Petition for Authorization to Conduct a Referendum on the Withdrawal

of North Haledon School District from the Passaic County Manchester Regional

High School District, 181 N.J. 161, 183 (2004), the Court reversed the grant of

North Haledon's petition to withdraw from the Passaic County Manchester

Regional High School District. The Court found that "demographic trends are

contributing to a steady decrease in the number of white students attending

Manchester Regional, and that North Haledon's withdrawal will accelerate this

trend." Ibid. The Court held that "[r]ather than using the demographic trend as

an excuse for approving North Haledon's petition, the Board should have


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                                      29
considered the ameliorative effect of denying the petition on the racial balance

at Manchester Regional." Ibid.

      Similarly, in Board of Education of Englewood Cliffs v. Board of

Education of Englewood, 257 N.J. Super. 413, 459-65 (App. Div. 1992), aff'd,

132 N.J. 327, cert. denied, 510 U.S. 991 (1993), the Appellate Division affirmed

the State Board of Education's denial of Englewood Cliffs' petition to withdraw

from the sending/receiving relationship due to the substantial negative impact

on the racial balance in the district. In contrast, here, Franklin did not show that

CJCP's expansion will increase the racial imbalance as in North Haledon and

Englewood Cliffs.      In fact, it appears from the data submitted by the

Commissioner that the racial demographics have remained fairly consistent

during CJCP's operation.

      Lastly, it is undisputed that the Commissioner considered the segregative

effect of the charter school in approving CJCP's application to open the school

in 2006, N.J.A.C. 6A:11-2.1(j), in renewing its application in 2010 and 2015,

N.J.A.C. 6A:11-2.3(b)(8), and on an annual basis, N.J.A.C. 6A:11-2.2(c). There

is no indication in this record that there was any challenge based on the

segregative effect either in the initial approval or on renewal. Nor is there any

indication in this record that the Commissioner found a segregative effect during


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                                        30
the annual review. N.J.A.C. 6A:11-2.2(c).

      Based upon the foregoing, we conclude that the Commissioner's decision

granting the expansion was not arbitrary, capricious, or unreasonable because

Franklin did not provide sufficient evidence of a segregative effect to warrant

either a more detailed scrutiny or the denial of the application. Therefore, we

reject Franklin's contention on this point.

                                       III.

      In Point II, Franklin argues that the Commissioner's decision approving

the amendment was arbitrary, capricious and unreasonable because she failed to

consider "serious deficiencies       and problems in    CJCP's    application."

Specifically, Franklin contends the Commissioner failed to consider that:

1) CJCP sought to expand too rapidly; 2) CJCP's staffing plan was unrealistic;

3) there was a lack of community demand for the New Brunswick campus and

no demonstrated need for additional seats at the Somerset campus; 4) CJCP has

a "poor track record" with ELL students; 5) the proposed location of the

Somerset campus is unsuitable for a school; and 6) CJCP may become involved

in expensive litigation with its current landlord. We are unpersuaded by these

arguments.

      Applications to establish a charter school are governed by N.J.S.A.


                                                                       A-3074-16T4
                                       31
18A:36A-4 and -5, and the implementing regulation, N.J.A.C. 6A:11-2.1. The

Commissioner has final authority to grant or reject a charter. N.J.S.A. 18A:36A-

4(c).   "The notification to eligible applicants not approved as charter schools

shall include reasons for the denials." N.J.A.C. 6A:11-2.1(f) (emphasis added).

        Applications to renew a charter are governed by N.J.S.A. 18A:36A-17 and

the implementing regulation, N.J.A.C. 6A:11-2.3. The Commissioner shall

grant or deny the renewal of a charter based upon a comprehensive review of

the school, including, among other things, the annual reports, recommendation

of the district board of education or school superintendent, and student

performance on statewide tests. N.J.A.C. 6A:11-2.3. "The notification to a

charter school that is not granted a renewal shall include reasons for the denial."

N.J.A.C. 6A:11-2.3(d) (emphasis added).

        With particular reference to the case at hand, a charter school can also

apply to the Commissioner for an amendment to its charter. N.J.A.C. 6A:11-

2.6. A charter school can seek, as in this case, an expansion of enrollment and

the establishment of a new satellite campus. N.J.A.C. 6A:11-2.6(a)(1)(i), (iv).

Boards of Education in the district of residence can submit comments in

response to the application for amendment. N.J.A.C. 6A:11-2.6(c).

        "The Commissioner may approve or deny amendment requests of charter


                                                                           A-3074-16T4
                                       32
schools and shall notify charter schools of decisions.        If approved, the

amendment becomes effective immediately unless a different effective date is

established by the Commissioner." N.J.A.C. 6A:11-2.6(d). In determining

whether the amendments are eligible for approval, the Department "shall

evaluate the amendments" based on the CSPA and the implementing regulations,

and the Commissioner "shall review a charter school's performance data. . . ."

N.J.A.C. 6A:11-2.6(b). A school's performance data is reflected in the school's

Academic Performance Framework report.            N.J.A.C. 6A:11-1.2.        The

Performance Framework consists of three sections: academic, financial, and

organizational. N.J.A.C. 6A:11-1.2. A charter school’s performance on the

Academic section carries the most weight. That component includes measures

of student growth, achievement, graduation rate, and attendance.        N.J.A.C.

6A:11-1.2.

      An appellate court may reverse a Commissioner's decision on a charter

school application only if it is "arbitrary, capricious, or unreasonable." Quest

Acad., 216 N.J. at 385. "[T]he arbitrary, capricious, or unreasonable standard

. . . subsumes the need to find sufficient support in the record to sustain the

decision reached by the Commissioner." Id. at 386. "[A] failure to consider all

the evidence in a record would perforce lead to arbitrary decision making." Ibid.


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                                      33
However, in cases where "the Commissioner is not acting in a quasi-judicial

capacity," and is instead acting in [her] legislative capacity, as [s]he was doing

here, [s]he "need not provide the kind of formalized findings and conclusions

necessary in the traditional contested case." TEAM Acad., ___ N.J. Super. ___

(slip op. at 30) (quoting In re Grant of Charter Sch. Application of Englewood

on the Palisades Charter Sch., 320 N.J. Super. 174, 217 (App. Div. 1999), aff'd

as modified, 164 N.J. 316 (2000)).

      Thus, although the arbitrary, capricious, or unreasonable standard

demands "that the reasons for the decision be discernible, the reasons need not

be as detailed or formalized as an agency adjudication of disputed facts; they

need only be inferable from the record considered by the agency." Englewood,

320 N.J. Super. at 217. See Red Bank, 367 N.J. Super. at 476 (reasons need not

be detailed or formalized, but must be discernible from the record); Bd. of Educ.

of E. Windsor Reg'l Sch. Dist. v. State Bd. of Educ., 172 N.J. Super. 547, 552

(App. Div. 1980) (detailed findings not required by Commissioner in reducing

amount local school board sought to increase its budget).

      There is also no statutory or regulatory provision requiring the

Commissioner to include reasons for granting an application to amend. TEAM

Acad., ___ N.J. Super. ___ (slip op. at 40). The regulations provide only that


                                                                          A-3074-16T4
                                       34
the notification "shall include reasons for the denial[]" of an initial charter

school application and an application for renewal.       N.J.A.C. 6A:11-2.1(f);

N.J.A.C. 6A:11-2.3(d).     The Commissioner does however, take comments

regarding the amendment into consideration when rendering a final decision.

N.J.A.C. 6A:11-2.6(c). Here, although the Commissioner did not specifically

address the comments submitted by Franklin in its opposition to CJCP's

application, a review of the record indicates that none of the issues raised by

Franklin presented a basis to deny the amendment.

      First, Franklin argues that CJCP failed to present sufficient evidence of a

need for a satellite campus in New Brunswick. A charter school can seek an

amendment to open a new satellite campus. N.J.A.C. 6A:11-2.6(a)(1)(iv). See

Educ. Law Ctr. ex rel. Burke v. N.J. State Bd. of Educ., 438 N.J. Super. 108,

112 (App. Div. 2014) (affirmed State Board's action in adopting regulations

allowing satellite campuses). A satellite campus is defined as "a school facility

operated by a charter school that is in addition to the facility identified in the

charter school application or charter, if subsequently amended."        N.J.A.C.

6A:11-1.2. "A charter school may operate more than one satellite campus in its

district or region of residence, subject to charter amendment approval, pursuant

to N.J.A.C. 6A:11-2.6." N.J.A.C. 6A:11-4.15(b).


                                                                          A-3074-16T4
                                       35
      The Department evaluates whether amendments are eligible for approval

based on the CSPA. N.J.A.C. 6A:11-2.6(b). Under the CSPA, a charter must

include information showing a "[d]emonstration of need" in its initial

application for a charter. N.J.A.C. 6A:11-2.1(b)(2)(vi). Franklin contends that

CJCP did not demonstrate a need for the satellite campus because it cited only

to a lack of demand from New Brunswick families.

      However, in its application, CJCP presented a detailed rationale for the

addition of a satellite campus—a record that amply supports the Commissioner's

decision.   Notably, CJCP set forth that New Brunswick's high percentage of

economically disadvantaged students (86% (high school) and 93% (middle

school)), would benefit from easier access to CJCP. It also cited to studies that

"emphasize[d] the importance of residential proximity for charter schools to be

a real option for all parents."

      Moreover, CJCP demonstrated need because even though it received

fewer applications than expected from New Brunswick students in 2016-2017,

it still received double the number of applications from 2015-2016, and seventy-

seven of the ninety-three students were placed on the waiting list. CJCP also

represented that the total number of applications had dramatically increased over

the past few years (465 for the 2014-2015 school year and 956 for the 2016-


                                                                         A-3074-16T4
                                      36
2017 school year), and that at the time of the application, there were 628 students

on its waiting list.

      Second, Franklin argues that CJCP failed to demonstrate need because

only 87% of the students enrolled at the Somerset campus were from CJCP's

region of residence. However, CJCP explained that number was "a result of

upperclassmen high school students from outside of the attendance zone who

started to attend CJCP when they were sixth graders. As these students graduate,

the ratio of students from CJCP's region of residence attending CJCP has

increased," as follows: 71% (2014-2015); 80% (2015-2016); 87% (2016-2017).

CJCP anticipated that approximately 94% of its students would reside in its

region of residence in the 2017-2018 school year, and 100% by the 2018-2019

school year.

      Third, Franklin argues that the Commissioner ignored the fact that CJCP

had a "poor track record in enrolling ELL students." It asserts that 14% of the

students enrolled in traditional public schools in New Brunswick are ELL

students, and that CJCP has not demonstrated that it is able to serve this student

population. However, there was no evidence that CJCP utilized any policy or

procedure, either before or after the lottery, to exclude ELL students. It was

also undisputed that students gain admission to CJCP through a publically held


                                                                           A-3074-16T4
                                       37
random lottery process that blindly selects students from among the applicant

pool, and CJCP did not collect any information prior to the lottery as to a

student's English language skills. Further, CJCP maintained that it sought to

open a satellite campus in New Brunswick in order to reach more ELL students.

      Franklin also failed to present any evidence that CJCP was unable to serve

the population of ELL students. It was undisputed that CJCP complied with

NJDOE regulations during its ten years of operation, including N.J.A.C. 6A:11-

4.8, which provides that "[a] charter school shall provide an enrolled limited

English proficient student with all required courses and support services to meet

the New Jersey Student Learning Standards in accordance with N.J.S.A.

18A:7A-4 and 18A:7A-5 and N.J.A.C. 6A:15, Bilingual Education."

      Fourth, Franklin argues that the Commissioner failed to address its

concern that the increased enrollment at the Somerset campus and the creation

of the satellite campus will cause "catastrophic staffing issues due to unrealistic

teacher salaries." However, there is no indication in this record that CJCP

proposed to pay its teachers less than the amount required under the CSPA. In

this regard, N.J.S.A. 18A:36A-14(b) provides that "[a] charter school shall not

set a teacher salary lower than the minimum teacher salary specified pursuant to

section 7 of P.L.1985, c.321 (C.18A:29-5.6) nor higher than the highest step in


                                                                           A-3074-16T4
                                       38
the salary guide in the collective bargaining agreement which is in effect in the

district in which the charter school is located." See also 34 N.J.R. 2920(a) (Aug.

19, 2002) ("Charter schools pay their teachers and professional staff not less

than the State minimum salary nor more than the salaries of the district boards

of education in which the charter schools are located"). Therefore, Franklin's

contention on this point also lacks merit.

      Fifth, Franklin contends that the Commissioner ignored its safety

concerns about the Mettlers Road location. However, prior to opening the new

campus, CJCP must submit to the NJDOE the new lease, mortgage, or title to

the facility, a valid certificate of occupancy for educational use issued by the

local municipal enforcing official, a sanitary inspection report with a

satisfactory rating, and a fire inspection certificate with an "Ae" (education)

code life hazard. N.J.A.C. 6A:11-2.1(i)(6)-(9). The regulations are designed to

ensure that facilities are safe for students. Thus, none of the issues raised by

Franklin in opposition to the application form a basis for denying the

application.

      In sum, we are satisfied that the administrative record amply supports the

Commissioner's decision to grant CJCP's request to amend its charter. CJCP

demonstrated that it is a high-performing, Tier 1 school, a ranking it received


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                                       39
from the Department's assessment of its academic performance based on the

metrics set forth in the State's Academic Performance Framework governing

charter schools. N.J.A.C. 6A:11-1.2; N.J.A.C. 6A:11-2.3(b). In 2015-2016,

CJCP students ranked in the 99th percentile statewide for Math on the PARCC

and outperformed their home district on the 2016 PARCC in every subject. It

was also awarded the National Blue Ribbon Award in 2016, named a High

Performing Title I Reward School in 2015, featured as a Top Performing High

School in U.S. News and World Report in 2015 and 2016, and designated as a

"Top Ten Middle School" by JerseyCAN in 2013.

      Thus, a review of CJCP's performance data clearly supported the need for

the amendment. N.J.A.C. 6A:11-2.6(b). Further, in the application and annual

reports submitted by CJCP during its ten-year operation, it demonstrated that it

was fiscally stable and operationally sound. Finally, the Commissioner properly

approved CJCP's request to expand enrollment with the understanding that

facilities would need to be identified, secured, and potentially improved to

comply with the charter regulations. Under these circumstances, we discern no

basis for disturbing the Commissioner's reasoned determination.

      Affirmed.




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