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In re Failure of The Commissioner of Education

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 20, 2008

IN THE MATTER OF THE FAILURE OF THE COMMISSIONER OF EDUCATION TO ACT UPON A PROPOSED AMENDMENT TO THE LONG RANGE FACILITIES PLAN SUBMITTED BY THE ELIZABETH BOARD OF EDUCATION

On appeal from the State Board of Education.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 21, 2008

Before Judges S. L. Reisner and Gilroy.

This appeal arises under the proposed "Educational Facilities Construction and Financing Act" (EFCFA), N.J.S.A. 18A:7G-1 to -48. Appellant, the Elizabeth Board of Education (Board), appeals from the alleged failure and refusal of respondent, the New Jersey Department of Education (Department), to act on and to approve an amendment to the Board's previously submitted pre-development application, to change the proposed site for the construction of a new vocational-technical high school (the School). We remand the matter to the Department for further proceedings consistent with this opinion.

The Elizabeth School District is an SDA district,*fn1 formally designated as an Abbott District.*fn2 N.J.S.A. 18A:7G-4 requires each school district to submit to the Commissioner of Education by December 15, 2000, and by October 1, 2005, and every five years thereafter, a long-range facilities plan (LRFP) "that details the district's school facilities needs and the district's plan to address those needs for the ensuing five years." N.J.S.A. 18A:7G-4a. The LRFP shall include among other matters, "an educational adequacy inventory of all existing school facilities in the district including . . . the identification of all deficiencies in the district's current inventory of school facilities . . . and the district's proposed plan for future construction and renovation." N.J.S.A. 18A:7G-4e. However, a district is not required to designate in the LRFP the site of a proposed, new school facility. Ibid.; N.J.A.C. 6A:26-2.2.

The Commissioner is required to advise the district whether the LRFP is "fully and accurately" complete within ninety days of its receipt, and if so, to approve or reject the plan within sixty days thereafter. N.J.S.A. 18A:7G-4i. "An amendment to the [LRFP] may be submitted at any time to the [C]commissioner for review and determination of the approval or disapproval of the amendment." N.J.S.A. 28A:7G-4c. A district's application for a school facilities project,*fn3 N.J.S.A. 18A:7G-5, cannot be approved "unless the district has filed a [LRFP] that is consistent with the application and the plan has been approved by the [C]commissioner." N.J.S.A. 18A:7G-4b.

N.J.S.A. 18A:7G-5 governs the financing and construction of school facilities projects. Because Elizabeth is an SDA district, the New Jersey School Development Authority (NJSDA) "shall undertake" and the New Jersey Economic Development Authority (NJEDA) "shall finance" the district's school facilities projects. N.J.S.A. 18A:7G-5a. An SDA district, seeking to initiate a school facilities project, must apply to the Commissioner for approval. N.J.S.A. 18A:7G-5.

The district must first submit to the Department's Division of Finance (Division) a pre-development application, "setting forth all pre-development activities,*fn4 including feasibility studies, remediation, site development, demolition . . . and acquisition of land, which need to be undertaken prior to submission of a school facilities project application." N.J.A.C. 6A:26-3.9(c)(1). On receipt of a pre-development application, the Division is required to review it for consistency with the approved LRFP, and if found consistent, approve the application and forward it to the NJSDA to undertake the pre-development activities for the proposed project. Ibid. The NJSDA will retain professionals to perform and provide the funding for the pre-development costs. N.J.A.C. 6A:26-3.9(c)(2).

On completion of the pre-development activities, the district next submits its school facilities project application pursuant to N.J.S.A. 18A:7G-5. The application must contain certain statutory information, including schematic drawings, preliminary plans, and specifications. N.J.S.A. 18A:7G-5d(1). The Commissioner is required to review the proposed project to determine whether it is consistent with the district's LRFP. N.J.S.A. 18A:7G-5e. The Commissioner is also required to approve or reject the project within ninety days after determining the application complete, unless the Commissioner notifies the district that she is going to take an additional sixty days to review the facilities project. Ibid. If the decision is not made within that time frame, then the project is deemed approved. Ibid.

The Board's 2000-2005 LRFP was approved by the Department on April 3, 2001. The LRFP included the School as a proposed project. On April 23, 2002, the Board submitted a pre-development application for the School on property known as the "Johnson Machinery" site. On July 29, 2002, the Department approved the pre-development application for the School. The Department permitted the New Jersey Schools Construction Corporation (SCC) to award contracts for the design of the School and other feasibility studies of the site.*fn5 The site proved to be unsuitable for development for the School because a high-pressure gas line traversed the property.

On May 22, 2003, the Board: 1) adopted a resolution proposing that the School be constructed on a site located at East Grand/Reid Avenue; and 2) submitted an amendment to its prior pre-development application to change the site of the proposed School accordingly. Although the amended pre-development application was approved by the Department, the site was later rejected during the feasibility analysis because of an objection from the Mayor's Office regarding its suitability. On September 27, 2004, the Board submitted another revised pre-development application to construct the School at a site on Jefferson Avenue. That site was also rejected after the Department received an objection from the Mayor's Office because the construction of the School would have caused a closure of a manufacturing plant employing more than 200 people.

On October 20, 2005, the Board adopted a resolution authorizing a further amendment to its pre-development application, changing the location of the construction of the School to properties known as Block 7, Lot 66 (the United Gunnite site), and Block 8, Lot 1123 (the New Jersey Transit (NJT) site). In early February 2006, the Board submitted the amended application to the Department. On February 14, 2006, the Department requested additional information and documentation. Although the Board complied with the Department's request within several days, it did not receive a response from the Department approving or denying the amended pre-development application.

After the Board followed up on the submission through letters dated March 14, 2006, and March 31, 2006, the Department forwarded an e-mail to the Board on May 30, 2006, advising that, although it had received the Board's completed amendment to the pre-development application for the change of the proposed School site on March 3, 2006, it had not approved or denied it because the SCC did not have any funds to acquire the site. Because the Board did not receive the Department's determination, approving or denying the pre-development request for the new site so that the Board could investigate whether it was suitable for construction, the Board filed its appeal on December 6, 2006.*fn6

In the interim, the Elizabeth District's 2005-2010 LRFP became due January 15, 2006. The 2005-2010 LRFP was deemed complete by the Department on March 8, 2007, but it was not in an approvable form. After the Board corrected the deficiency, its 2005-2010 LRFP was approved by the Department on September 12, 2007. The new LRFP included the School as a proposed project.

On appeal, the Board argues that because the Department had deemed its amendment to the 2000-2005 LRFP complete as of March 3, 2006, the Department was required to have either approved or disapproved the amendment no later than May 2, 2006, but did not do so, citing N.J.S.A. 18A:7G-4i. The Board also argues that the Department failed to comply with the time constraints of N.J.S.A. 18A:7G-5e. The Board contends that the Department's "failure to act on the simple amendment to the LRFP for 2000-2005, and now to the completed 2005-2010 LRFP, is . . . impeding the ability of the Board to acquire much needed real property." The Board asserts that this court "should rule as a matter of law" that the amendment to the LRFP is deemed approved, "and the Board should now be free to conduct due diligence and to take the other steps necessary to determine whether the project can ultimately be constructed at the proposed site."

The Department counters that the appeal should be dismissed because "there has been no State agency inaction" from which the Board can appeal. R. 2:2-3(a)(2). The Department argues that the Board's argument that the Department failed to comply with the time constraints contained in N.J.S.A. 18A:7G-4i is moot because the Department approved the 2005-2010 LRFP on September 12, 2007. The Department contends that it did not fail to comply with the time constraints contained in N.J.S.A. 18A:7G-5e, which requires that it review and make a decision pertaining to proposed "school facilities projects," because the Board's submission regarding the United Gunnite/NJT site is not an application for a school facilities project, but rather only a pre-development application for which there are no statutes or regulations requiring that the Department approve or disapprove of the request within a stated period of time. Lastly, the Department argues that as a practical matter, the appeal is an exercise in futility, because the School is outside the NJSDA's Capital Plan and there is insufficient funding to advance the School project to the project application stage.

Rule 2:2-3(a)(2) vests the Appellate Division with jurisdiction over claims of State agency inaction. Hosp. Ctr. at Orange v. Guhl, 331 N.J. Super. 322, 329 (App. Div. 2000). Accordingly, "[i]f a state administrative agency fails to complete its proceedings in a timely manner, a party adversely affected by such inaction may apply to this court for an order to compel the agency to act." In re Mar. 22, 2002 Motion to Dismiss and Intervene in the Petition of Howell Twp., 371 N.J. Super. 167, 187 (App. Div.), certif. denied, 182 N.J. 140 (2004).

We agree with the Department that the Board's February 2006 submission was not an amendment to the district's LRFP. The statutes and regulations governing LRFPs do not require school districts to specify particular sites for the construction of new school projects. The February 2006 submission was an amendment to the district's previously approved pre-development application, seeking to change the proposed location for the School. Accordingly, the time constraints within which the Department is required to act on the submission is not governed by N.J.S.A. 18A:7G-4i. That statute only speaks to the Department's obligation to act on a district's LRFP. Moreover, the Department approved the 2005-2010 LRFP on September 12, 2007.

We also find the Board's reliance on N.J.S.A. 18A:7G-5e misplaced. That statute regulates the time in which the Department must review, and approve or deny completed applications for school facilities projects. The February 2006 submission was not such an application. N.J.S.A. 18A:7G-5d.

Although we disagree with the Board's argument that the Department failed to act timely on its February 2006 submission to amend its previously approved pre-development request pursuant to N.J.S.A. 18A:7G-4i and N.J.S.A. 18A:7G-5e, we agree that the Department was required to act on the submission in a reasonable period of time and has failed to do so.

N.J.A.C. 6A:26-3.9 governs the design and construction of NJSDA school facilities projects. Pursuant to that regulation, each SDA district seeking to initiate a school facilities project is required to first submit a pre-development application setting forth all pre-development activities needed for the project. On receipt of an application, the Division "will review [the] application for consistency with the approved LRFP, and, if approved, forward the application to the [NJSDA] which shall undertake such activities pursuant to procedures developed by the [NJSDA]." N.J.A.C. 6A:26-3.9(c)1.

Here, the Board submitted an application and the Department approved it. Because the original site for the School was rejected, as were several alternative sites, the Board submitted its February 2006 amendment to the previously approved pre-development application to change the proposed site for the School to United Gunnite/NJT site. We are satisfied that the Division is required to act on a proposed amendment to a previously approved pre-development application in the same manner and reasonable time period as it would on an original application. The Division has not acted on the February 2006 submission for over two years, a period of time we find unreasonable. Accordingly, we remand this matter to the Department for the Division to process the Board's proposed amendment to its previously approved pre-development application pursuant to N.J.A.C. 6A:26-3.9(c)1 within sixty days from the date of remand. We do not direct any further action in this matter, leaving to the Department and the NJSDA the right to exercise in good faith whatever discretion they may have in determining what pre-development activities should be undertaken in light of the limited funding available for future school facilities projects as evidenced by the NJSDA's 2008 Capital Plan.

Remanded to the New Jersey Department of Education for further proceedings consistent with this opinion. We do not retain jurisdiction.


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