N.Y. Comp. Codes R. & Regs. tit. 8 § 155.12

Current through Register Vol. 46, No. 45, November 2, 2024

Section 155.12 - Lease approval and building aid for leased school buildings and facilities by school districts

(a) Definitions. As used in this section:

(1) Annual lease means a lease of real property, the term of which is no greater than one school year, which terminates no later than June 30th.

(2) Multi-year lease means a lease of real property, the term of which is greater than one school year, which terminates no later than June 30th of any school year.

(b) Approval of leases outside of New York City. To obtain prior approval of a lease pursuant to sections 403-b(1)(c), 2503(8) and/or 2554(6) of the Education Law, the board of education of a union free, central, central high school or city school district other than the city school district of the City of New York shall submit the following to the commissioner:

(1) the proposed lease, which shall be an annual lease, multi-year lease or an amendment or extension thereof, shall include the following information:

(i) the complete legal names and addresses of all parties and the address of the leased property;

(ii) the lease term; and

(iii) the amount, frequency and due dates for lease payments, including the total of payments for the duration of the lease term;

(2) to show need, a copy of the district's updated long-range facilities plan required pursuant to section 155.1 of this Part which includes the proposed leased space as well as all other planned acquisitions, disposals and leasing of buildings for school purposes during the period of the plan; and

(3) to show that the proposed leased facility meets all applicable standards for the health, safety and comfort of the occupants, is educationally adequate and where the facility is located on its site:

(i) a request for approval of use on the form prescribed by the commissioner;

(ii) concerning State Uniform Fire Prevention and Building Code conformance (9 NYCRR Parts 600-1250);

(a) a copy of the current certificate of occupancy issued by the local code enforcement agency; or

(b) certification by a licensed architect/engineer that the whole building, as well as the space being used, complies with applicable provisions of Chapter C of the Uniform Fire Prevention and Building Code (9 NYCRR Parts 600-1250);

(iii) the fire safety report required by section 155.4 of this Part:

(a) with no nonconformances; or

(b) in the case of nonconformances, certification that correction of the nonconformances are part of a capital project submitted with the lease approval request;

(iv) a site plan; and

(v) floor plan(s); and

(4) to indicate the location of the leased facility, certification by the superintendent of schools that:

(i) the leased school/facility is located within the district but not on district-owned property; or

(ii) the leased school/facility is owned by and is located in a neighboring union free or central school district. The distance between the two districts in miles shall be provided by the superintendent;

(5) certification by an attorney representing the board of education that:

(i) the board has taken proper procedural steps to authorize the lease;

(ii) the initial term of the lease, not including any renewals thereof, does not exceed the period of probable usefulness that would be prescribed for such building or facilities by the Local Finance Law if the building or facility were owned by a school district;

(iii) voter approval has been obtained where required by law:

(a) for a lease longer than five years;

(b) in the case of renewals; and

(c) for any capital project to be undertaken in a leased building or facility;

(iv) the lease does not include an option to buy;

(v) the lease includes a provision that the lease shall be void and unenforceable if entered into in violation of section 801 of the General Municipal Law or section 410 of the Education Law; and

(vi) the lease payments or other annual payment under the lease does not include the costs of heat, electricity, water or other utilities or the costs of operation or maintenance of the leased facility;

(6) for a district seeking aid for lease expense pursuant to subdivision 6 of section 3602 of the Education Law, a certification by the superintendent of schools that:

(i) the leased school or facility meets requirements for access by individuals with disabilities to both facilities and programs by complying with section 200.2 of this Title; and

(ii) the leased space will be used to house programs for pupils in grades preK-12, who are enrolled in any prekindergarten or nursery school program offered by the school district pursuant to section 1712, 2514 or 2555 of the Education Law or who are over five and under 21 years of age and who have not received a high school diploma, with minimal associated administrative and support service space.

(c) Approval of capital projects outside of New York City. To obtain prior approval of a capital project in a leased building or leased facility during the term of the lease, pursuant to sections 403-b(1)(b), 2503(8) and/or 2554(6) of the Education Law, a board of education of a union free, central, central high school, or city school district other than the city school district of the City of New York shall submit the following to the commissioner:

(1) an explanation of the need for the capital project in light of the district's long-range facilities plan, submitted pursuant to paragraph (b)(2) of this section and updated to reflect the need for the proposed capital project; and

(2) certification:

(i) that the lease is for a term of at least 10 years subsequent to the general contract for such construction, reconstruction, rehabilitation or improvement; and

(ii) that where required by law, approval of the voters of the school district which will become the lessee has been obtained;

(3) for capital projects proposed in a school building leased from another school district, plans and specifications in accordance with section 155.2 of this Part;

(4) for capital projects proposed in a school building leased from a person, partnership or corporation other than another school district, submit for review for educational adequacy and conformance with the requirements of this Part, plans and specifications proposed to be submitted to the local building authority for a building permit.

(d) Approval of leases in the City of New York. To obtain prior approval of a lease pursuant to section 2554(6) of the Education Law, the board of education of the city school district of the City of New York shall submit the following to the commissioner:

(1) the proposed lease, which shall be an annual lease, multi-year lease or an amendment or extension thereof, and shall include the following information:

(i) the complete legal names and addresses of all parties and the address of the leased property;

(ii) the lease term; and

(iii) the amount, frequency and due dates for lease payments, including the total of payments for the duration of the lease term;

(2) to show need, a copy of the district's current five year facilities plan, or other long- range facilities plan as applicable, that is consistent with section 155.1 of this Part, and includes the proposed lease as well as all other planned acquisitions, disposals and leasing of buildings or school purposes during the period of the plan;

(i) a request for approval of use on the form prescribed by the commissioner;

(ii) a copy of current certificate of occupancy issued by the local code enforcement agency;

(iii) a site plan; and

(iv) floor plan(s);

(4) certification by an attorney representing the board of education that:

(i) the board has taken proper procedural steps to authorize the lease;

(iii) voter approval has been obtained where required by law:

(a) for a lease longer than five years;

(b) in the case of renewals; and

(c) for any capital project to be undertaken in a leased building or facility;

(iv) the lease does not include an option to buy;

(v) the lease includes a provision that the lease shall be void and unenforceable if entered into in violation of section 801 of the General Municipal Law or section 410 of the Education Law; and

(vi) the lease payments or other annual payment under the lease do not include the costs of heat, electricity, water or other utilities or the costs of operation or maintenance of the leased facility;

(5) for the district seeking aid for lease expense pursuant to subdivision 6 of section 3602 of the Education Law, a certification by the superintendent of schools that:

(i) the leased school or facility meets requirements for access by individuals with disabilities to both facilities and programs by complying with section 200.2 of this Title and, when the purpose of the leased space includes special education programs and services, the leased space is consistent with the district's comprehensive long-range plan for the allocation of instructional space to meet the current and future special education program and service needs and to serve students with disabilities in settings with nondisabled peers; and

(ii) leased space will be used to house programs for pupils in grades preK-12, who are enrolled in any prekindergarten or nursery school program offered by the school district pursuant to section 1712, 2514 or 2555 of the Education Law or who are over five and under 21 years of age and who have not received a high school diploma, with minimal associated administrative and support service space.

(e) Approval of capital projects in New York City. To obtain prior approval of a capital project in a leased building or facility during the term of the lease pursuant to sections 403-b(1)(b) and 2554(6) of the Education Law, the board of education of the City of New York shall submit the following to the commissioner:

(1) an explanation of the need for the capital project in light of the district's long-range facilities plan, submitted pursuant to paragraph (d)(2) of this section and updated to reflect the need for the proposed capital project;

(2) provide certification:

(i) that the lease is for a term of at least 10 years subsequent to the general contract for such construction, reconstruction, rehabilitation or improvement;

(3) for capital projects proposed in a school building leased from another school district, submit plans and specifications in accordance with section 155.2 of this Part; or

(f) Following the completion of a capital project, submitted to the commissioner pursuant to subdivision (c) or (e) of this section, a new certificate of occupancy issued by the local building authority shall be submitted together with school district certification that the work was done in accordance with submitted plans and specifications. Where the work deviates from the submitted plans and specifications, as-built drawings shall be submitted for review.

(g) Apportionment of building aid under subdivision 6 of section 3602 of the Education Law for leases approved by the commissioner pursuant to section 403- b, subdivision 8 of section 2503, or subdivision 6 of section 2554 of the Education Law shall be apportioned pursuant to provisions of this subdivision.

(1) Any apportionment for an approved lease with a term of 15 years or more shall be based on the maximum cost allowance determined in accordance with the provisions of subdivision 6 of section 3602 of the Education Law. Such apportionment shall be paid on each annual lease payment until the total of such annual lease payments equals the maximum cost allowance. No apportionment shall be paid for annual lease payments made after the sum of such annual lease payments exceeds the maximum cost allowance.

(2) Any apportionment for an approved lease with a term of less than 15 years shall be based on the product of the maximum cost allowance determined in accordance with the provisions of subdivision 6 of section 3602 of the Education Law and the quotient of the number of years in the term of the lease divided by 15. Such apportionment shall be paid on each annual lease payment until the total of such annual lease payments equals such product. No apportionment shall be paid for annual lease payments after the sum of such annual payments exceeds such product.

(3) The lease payment schedule shall be structured so that no annual payment is less than 50 percent of any prior annual payment.

N.Y. Comp. Codes R. & Regs. Tit. 8 § 155.12