19 Del. Admin. Code § 4101-5.0
Current through Register Vol. 28, No. 7, January 1, 2025
Section 4101-5.0 - Waivers and Variances5.1 As required by Title 29, Delaware Code, Section 7306 (a) (2), the Architectural Accessibility Board is charged with promulgating "Rules and Regulations for the Granting of Waivers from the requirements of the Architectural Accessibility Act and the Board's standards." Section 7306(a) (6), further states, the Architectural Accessibility Board shall "upon written application setting forth good and sufficient reason therefore, grant written waivers from this Chapter and the Standards of Board, pursuant to Section 7309 of this Chapter" which states:5.1.1 "upon written application setting forth good and sufficient reason, the Board maygrant a waiver from this Chapter and the Board's standards.5.1.2 such application shall specify the facts relating to the request for the waiver. Any waiver granted by the Board shall be in writing and shall specify the Board's reason for granting the waiver."5.2 The Board shall take into account such factors as the availability of acceptable alternatives to the Board's standards, and whether or not compliance with the standards will produce extreme economic hardship without substantial benefit to people with disabilities.5.2.1 NOTE: The State of Delaware's Architectural Accessibility Act (AAA) was established before the federal Americans with Disabilities Act (ADA) was enacted in 1990. It may be appropriate to request waivers and/or variances that pertain solely to specific requirements of the AAA. However, requirements of the ADA may not be waived, exempted, altered or varied in any matter or form, unless done so according to the act.5.3 The Procedure for Requesting a Waiver: 5.3.1 Where to submit a request for a waiver. All requests for a waiver shall be submitted directly to: Architectural Accessibility Board Division of Facilities Management
540 S. Dupont Highway, Suite 1
Dover, DE 19901
Phone: (302) 739-5644
5.3.2 Time Table. Request for waivers must be received in the office of the Chief Administrator at least ten (10) days before a Board meeting. The Board generally meets on the second Thursday of every month. A request for a waiver will be acted upon on or before the meeting next following, or within sixty (60) days following submission, whichever comes first.5.3.3 Necessary Documentation. All requests must be in writing and include the following information: 5.3.3.1 The name and address of the state agency responsible for the project.5.3.3.2 The name and address of the design architect, engineer, or other person responsible for the request of the waiver.5.3.3.3 The address of the subject facility.5.3.3.4 The number of employees currently employed at the subject facility, and if different, number of employees anticipated to be employed at the subject facility.5.3.3.5 The function of the employees currently employed, and if different, the function of employees anticipated to be employed at the subject facility.5.3.3.6 If the agency which occupies or will occupy the facility provides a service, state the nature of the service, the average number of members of the public served per day, and, if the request would result in a facility which is not accessible to individuals with disabilities, state the nearest accessible location where an identical service is provided.5.3.3.7 If the request would result in a facility which is not accessible to individuals with disabilities, state the location of the nearest accessible facility which would provide an identical employment function.5.3.3.8 Sufficient documentation to determine the estimated cost of meeting the standard or complying with that part of the Act for which the waiver is requested. It is recommended that this include a qualified estimate.5.3.3.9 Any and all information necessary to determine compliance in all other areas of the subject facility with these standards such as, site plan, architectural floor plans, elevations, and pertinent sections of the construction specifications that demonstrate compliance. Four (4) copies of each document must be provided to the Board.5.3.3.10 If the request for a waiver is made in conjunction with a request for approval of a Lease/Lease Renewal, or Plan of Corrective Action, the procedure for the submission of leases to the Architectural Accessibility Board must also be adhered to.5.3.3.11 The reasons for the request for a waiver must be clearly stated.5.3.4 Review Process. 5.3.4.1 Upon receipt of a request for a waiver, or review, the Chief Administrator shall by letter to the architect, engineer, or submitting agency, acknowledge receipt of the documents, state the date and location of the next Submissions Review Committee meeting, the date and location of the next regular Board meeting, schedule an inspection of the site, if he deems it necessary, and invite the architect, engineer, or submitting agency to attend either of the above-mentioned meetings.5.3.4.2 The Submissions Review Committee, a subcommittee of the Board, generally meets two weeks prior to the regular Board meeting. This subcommittee reviews in depth the documents which are submitted, and makes recommendations to the Architectural Accessibility Board.5.3.4.3 Upon official action by the Board, a letter will be sent to the architect, engineer, or submitting agency stating the determination of the Board.5.3.5 Judicial Review 5.3.5.1 Title 29, Delaware Code, Chapter 73, Section 7310(a), provides that "any person aggrieved by a final order of the Board may appeal pursuant to the provisions of the Administrative Procedures Act, 29 Delaware Code, Chapter 64."5.3.5.2 PLEASE NOTE: Any waiver granted by the Architectural Accessibility Board does not preclude adherence to requirements, or the necessity of obtaining approvals which maybe required by other agencies.5.4 Variances. Any variance, as defined in § 3.4, may be granted by a majority vote of the Architectural Accessibility Board, only if it is clear that equivalent facilitation is provided; and, 5.4.1 application of the standard would be structurally impracticable (See Definition, Page 6); or5.4.2 improved access, or a greater degree of access is provided; or5.4.3 an innovative method is proposed to be substituted for a method required by the standard.19 Del. Admin. Code § 4101-5.0