N.J. Admin. Code § 6A:26-3.3 - Review and approval of school facilities projects

(a) After receipt of a school facilities project application, the Division shall assess the application and determine whether it is fully and accurately completed and all necessary information has been filed by the school district or the Development Authority on behalf of the school district. All information in N.J.A.C. 6A:26-3.2(b) must be provided to the Division before a school facilities project application shall be considered fully and accurately completed and the application shall be reviewed to determine whether it conforms to the school district's approved LRFP and whether it complies with the applicable programmatic model in the approved LRFP, if any, or the facilities efficiency standards. If a school facilities project application is determined to be incomplete, the Division shall inform the school district by listing in writing all deficiencies in the application and missing required information. After all required information is received and a school facilities project application is determined complete, the Division shall notify in writing the school district that the school facilities project application is deemed complete. In the case of a Development authority schools facility project, preconstruction activities shall be conducted prior to the application being deemed complete.

(b) After approval of the LRFP, within 90 days of receipt of a complete school facilities project application, or from the date of the school district's last revision to the project application, whichever is later, the Division shall review each application to determine whether the school facilities project is consistent with the school district's approved LRFP and whether it complies with the applicable room inventory in the approved LRFP, if any, or the facilities efficiency standards. If unable to make a decision within the 90 days, the Division shall notify the school district, explaining in writing the reason for the delay and indicating the date by which a decision shall be made. The decision date shall be no later than 60 days from the expiration of the original 90 days. If a decision is not made by the subsequent date established, the school facilities project shall be deemed approved.

(c) When the Division determines that a school facilities project complies with the requirements of N.J.A.C. 6A:26-5.1 through 5.3, and is consistent with the facilities efficiency standards or the applicable room inventory in the school district's approved LRFP, if any, and does not exceed the standards or the applicable room inventory approved in the LRFP, except for spaces for which the school district is not seeking State support, the Division shall approve the school facilities project, provide a final determination of the preliminary eligible costs pursuant to the formulas set forth in N.J.S.A. 18A:7G-1 et seq. and N.J.A.C. 6A:26-3.4, and shall notify in writing the school district of the approval and preliminary eligible costs.

(d) The Division shall notify the school district if it determines that a school facilities project is inconsistent with the facilities efficiency standards or the applicable room inventory in the approved LRFP. Within 30 days of the notification, the school district shall advise the Division of its determination to do one of the following:

1. Revise its school facilities project and re-submit it for review by the Division;

2. Make a request for additional space eligible for State support;

3. Locally fund any excess costs, or

4. Seek a waiver as set forth in (i) below.

(e) The Division shall approve requests for additional or inconsistent space eligible for State support if the school district demonstrates that:

1. School facility needs related to programs required pursuant to State or Federal law or regulation cannot be addressed within the facilities efficiency standards and that all other spaces are consistent with the standards;

2. Such spaces are necessary to comply with Federal or State laws concerning educating students with disabilities to the greatest extent possible in the same building or classes with their non-disabled peers and the additional or inconsistent spaces will:

i. Allow for the return of students with disabilities from out-of-school-district facilities;

ii. Permit the retention of students with disabilities who would otherwise be placed in out of school district facilities;

iii. Provide space for regional programs in a host school building that houses both disabled and non-disabled students; or

iv. Provide space for the coordination of regional programs by a county special services school district, educational services commission, jointure commission or other agency authorized by law to provide regional special education services, in a school facility that houses both disabled and non-disabled students;

3. Such spaces are necessary to house the school district's central administration and:

i. The proposed administrative offices will be housed in a school facility;

ii. The existing central administrative offices are obsolete or it is more practical to convert those offices to instructional space; and

iii. The space sought does not exceed an increase of the approved areas for unhoused students of 2.17 square feet for each FTE student in the projected total school district school enrollment.

(f) Spaces approved pursuant to (e) above shall be aided pursuant to N.J.S.A. 18A:7G-5.g(4).

(g) When reviewing requests by SDA districts for additional space, the Commissioner shall, in accordance with Abbott v. Burke, 153 N.J. 480 (1998) (Abbott V), afford deference to a school district's determination that specialized instructional rooms are necessary based on the school district's particular needs.

(h) If a request for additional space is determined to be eligible for State support, the applicable room inventory in the school district's approved LRFP shall be deemed amended. If the Division does not approve a request for additional space, it shall be deemed ineligible for State support unless and until the Division's decision is reversed on appeal.

(i) The Division shall not approve any school facilities project for new construction or rehabilitation that is not consistent with the facilities efficiency standards or the applicable room inventory in the approved LRFP unless the school district demonstrates that waiver of the standard(s) will not adversely affect the facility's educational adequacy, including the ability to deliver the programs and services necessary to enable all students to achieve the New Jersey Student Learning Standards. If the Division approves a waiver, the applicable room inventory in the school district's approved LRFP shall be deemed amended. If the Division does not approve a waiver request, the school district shall conform the school facilities project to the facilities efficiency standards and resubmit the project.

(j) School facilities projects that comprise new construction shall receive approval for State support only if necessary for reasons of unhoused students.

(k) A school facilities project that consists of rehabilitation shall be approved only if it will keep the school facility functional for its original purpose or for a new purpose and if it can be accomplished without increasing the gross square footage of the original facility but shall not include any routine maintenance or required maintenance. The Division may approve rehabilitation projects that include elevators, egress, and other modifications to school facilities to render them compliant with Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq., the UCC, N.J.S.A. 52:27D-119 et seq. or other State and Federal requirements, even if the gross square footage of the building is thereby increased to complete the school facilities project.

(l) All school facilities shall be deemed suitable for rehabilitation unless a feasibility study undertaken by the school district demonstrates to the Division's satisfaction that the structure might pose a risk to the safety of the occupants even after rehabilitation, or that rehabilitation is not cost-effective. Whenever a school district initiates a school facilities project for new construction in lieu of rehabilitation, the school district shall submit a feasibility study as part of the school facilities project application supporting its determination that it would be more feasible to replace rather than rehabilitate the school facility because of health and safety or efficiency. The feasibility study shall consist of:

1. Estimated costs of repairing the existing school facility and providing upgrades and additions required to make the school facility educationally adequate. The estimated costs of a rehabilitation project shall contain only the costs necessary for compliance with the UCC, health and safety, and educational adequacy as determined pursuant to N.J.A.C. 6A:26-5 and N.J.S.A. 18A:7G-5.g(1);

2. Estimated costs of replacing the existing school facility, including site acquisition, if required, and disposal of the existing site and school facility; and

3. Estimated costs of all extraordinary factors, including off-site improvements, environmental remediation and temporary facilities.

(m) When a school district demonstrates to the Division's satisfaction that replacement is more feasible than rehabilitation and the proposed school facilities project is otherwise approvable, the Division shall approve the school facility project for new construction in lieu of rehabilitation, and the preliminary eligible costs shall be determined pursuant to N.J.A.C. 6A:26-3.4 (a).

(n) When a school district does not demonstrate to the Division's satisfaction that replacement is more feasible than rehabilitation, the Division may approve the school facilities project if all other requirements are met, but the preliminary eligible costs shall be determined in accordance with N.J.A.C. 6A:26-3.4(b).

(o) If the Division determines that the preliminary eligible costs of a rehabilitation project, as determined pursuant to N.J.A.C. 6A:26-3.4(b), appear so excessive as to make rehabilitation an unreasonable option, it may direct the school district to conduct a study comparing cost and other factors associated with the rehabilitation versus new construction. If the Division determines that rehabilitation is an unreasonable option based on the comparison, the school district shall either re-submit the project as new construction or preliminary and final eligible costs shall be determined pursuant to N.J.A.C. 6A:26-3.4(a) if the school district determines to continue with the rehabilitation project.

(p) Upon approval of a school facilities project and determination of the preliminary eligible costs pursuant to N.J.A.C. 6A:26-3.4, the Division shall notify the school district that the school facilities project has been approved and of the preliminary eligible costs, excess costs, and additional costs, if any.

Notes

N.J. Admin. Code § 6A:26-3.3

Administrative Change, 48 N.J.R. 1802(a).