On appeal from a Final Decision of the New Jersey Commissioner of Education.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Yannotti.
Kentwood Academy (Kentwood) appeals from a final determination of the New Jersey Commissioner of Education (Commissioner), which upheld the revocation of Kentwood's preliminary authorization to operate a State-approved private school for students with disabilities. We affirm.
The following facts are pertinent to our decision. In 2003, Kentwood filed an application with the New Jersey Department of Education (Department) seeking preliminary authorization to operate a new, State-approved private school for disabled students in Sussex County, New Jersey. On June 15, 2004, the Department approved the first part of Kentwood's application, in which it provided information concerning the school's administration and its educational programs. The Department directed Kentwood to complete a needs assessment survey in order to verify the need for the new school by establishing a minimum of sixteen "possible referrals" of public-school students.
The sixteen-student standard for referrals was required by the regulations that were in effect when Kentwood first sought State approval for its school. However, in August 2004, the Department adopted an amendment to its regulations, which provided that a new private school for disabled students must document a minimum of [twenty-four] public school placement students in order for the school to receive preliminary approval by the Commissioner, which is an increase from [sixteen] pupils included in the current rule. For final approval, new private schools must meet a school year average daily enrollment of [twenty-four] public school placement students and must maintain a minimum average daily enrollment of [twenty-four] public school placement by the end of the third year . . . .
[36 N.J.R. 1313(a) (March 15, 2004), adopted at 36 N.J.R. 3895(a) (August 16, 2004), codified at N.J.A.C. 6A:23-4.1.]
In September 2004, Kentwood submitted its needs assessment survey to the Department. In October 2004, Diane Richards (Richards), Kentwood's owner, wrote to the Department and noted that Kentwood had been assured that the changes in the regulations would have no effect on Kentwood's application. Richards also wrote that Kentwood had not been told that it would have to meet the new requirement for a minimum average daily enrollment (ADE) of twenty-four students.
By email dated November 5, 2004, the Department advised Richards that Kentwood's needs assessment survey did not demonstrate the need for the school and there was a moratorium on new applications. However, in a letter dated January 10, 2005, the Department informed Kentwood that it could proceed with the approval process by conducting another needs assessment survey. The Department stated that, if a school is granted preliminary approval, the regulations required a minimum ADE by the end of the second year of operation. In addition, the Department stated that:
[c]urrent regulations require a minimum needs assessment of [twenty-four] possible referrals, for students with similar educational needs and within appropriate age ranges. Since you initiated the needs assessment process when the regulations required [sixteen] referrals, however, you must document a need for [sixteen] referrals. The required minimum ADE, by the end of the second year of operation would then be [sixteen].
The Department wrote again to Richards in February 2005, and reiterated that "[a] minimum of [sixteen] possible referrals is required to verify need of the new program." However, in a letter dated March 11, 2005, the Department informed Richards that its prior letters were in error and Kentwood would be required to comply with an ADE of twenty-four students, as required by the regulations that were then in effect.
On May 20, 2005, the Department granted Kentwood preliminary approval for its school. Kentwood was authorized to operate during the 2005-06 and 2006-07 school years with two classrooms, with a maximum of nine students per classroom. Richards then wrote to Acting Governor Richard J. Codey, seeking a determination that it was only required to meet an ADE of sixteen students. Thereafter, the Acting Commissioner of Education responded on behalf of the Acting Governor, and advised Kentwood that an ADE of ...