SENATE, No. 1826

STATE OF NEW JERSEY

212th LEGISLATURE

 

INTRODUCED MAY 8, 2006

 


 

Sponsored by:

Senator RONALD L. RICE

District 28 (Essex)

Senator FRED H. MADDEN, JR.

District 4 (Camden and Gloucester)

 

Co-Sponsored by:

Senator Karcher

 

 

 

 

SYNOPSIS

     Strengthens State construction code.

 

CURRENT VERSION OF TEXT

     As introduced.

  


An Act concerning the "State Uniform Construction Code Act" and amending and supplementing P.L.1975, c.217.

 

     Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

     1.  Section 8 of P.L.1975, c.217 (C.52:27D-126) is amended to read as follows:

     8.  a.  The appointing authority of any municipality shall appoint a construction official and any necessary subcode officials to administer and enforce the code.  The appointing authority may, by resolution or order as appropriate, set the total number of weekly hours of operation of the construction official's office and the total number of weekly work hours of the construction official, commensurate with the compensation paid to the construction official.  The appointing authority shall not set the specific work hours of the construction official.  The appointing authority shall also appoint a construction board of appeals to hear and decide appeals from decisions made by said construction official and subcode officials, in the administration and enforcement of the code.  Nothing herein, however, shall prevent a municipality from accepting inspections as to compliance with the code or any subcode thereof made by an inspection authority approved by the State of New Jersey pursuant to law.

     b.  To establish tenure rights or any other right or protection provided by the "State Uniform Construction Code Act" or Title 11A, Civil Service, of the New Jersey Statutes, or any pension law or retirement system, the job title "construction official" shall be equivalent to that job title which, prior to the adoption of the State Uniform Construction Code as provided in section 5 of the "State Uniform Construction Code Act," entailed the chief administrative responsibility to enforce all construction codes which had been adopted by the municipal governing body, the enforcement of which was not the responsibility of an authorized private inspection agency; and the job title "subcode official" shall be equivalent to that job title which, prior to the adoption of the State Uniform Construction Code, entailed subordinate administrative responsibility to enforce one or more of the following construction codes: building, plumbing, electrical or fire code.

     Any person, in a municipality operating under Title 11A, Civil Service, of the New Jersey Statutes, who, prior to the adoption of the State Uniform Construction Code, held the equivalent of the job title "construction" official or "subcode" official, but who no longer holds his position as a result of a determination that his old job title was not equivalent to that of "construction" official or "subcode" official, shall be offered reappointment as a construction official or subcode official, as the case may be, and shall be granted permanent classified status in such position.  Tenure shall continue for (1) any construction official or subcode official who is serving under tenure as otherwise provided by law on the effective date of this act or within one year thereafter, or (2) any person certified pursuant to subsection c. of this section and who subsequently gains such tenure.

     A construction official or subcode official appointed in a municipality operating under the provisions of Title 11A, Civil Service, of the New Jersey Statutes, who, at the time of adoption of the State Uniform Construction Code, January 1, 1977, or prior to January 1, 1981, had permanent classified status or was employed as a construction official or subcode official or in another position in the unclassified service, shall be included in the classified service without civil service examination in his respective title of construction official or subcode official.  Any individual employed by a municipality, who, in his employment with the municipality between January 1, 1977 and prior to January 1, 1981, was charged with the chief administrative responsibility to enforce all existing municipal construction codes, shall be deemed as appointed to the position of construction official for the purposes of this act.  Any individual employed by a municipality, who, in his employment with the municipality between January 1, 1977 and prior to January 1, 1981, was charged with chief responsibility to enforce the municipal building, plumbing, fire, or electrical code, shall be deemed as appointed to the position of subcode official for the purposes of this act.  No person, on or after January 1, 1981, shall be appointed as construction or subcode official in a municipality operating under Title 11A, Civil Service, of the New Jersey Statutes without having passed an examination administered by the  Merit System Board certifying the merit and fitness of the person to hold such position; provided that, whenever a noncivil service municipality adopts the provisions of that Title, construction code officials and subcode officials of such municipality appointed prior to the filing of the petition for the adoption of civil service, shall attain permanent status in the classified service without examination.  Any construction or subcode official appointed after January 1, 1981 on a provisional basis in a municipality which has adopted the provisions of Title 11A, Civil Service, of the New Jersey Statutes, may not be removed from office except for just cause after a fair and impartial hearing has been held at the local level, with no further appeal to the Merit System Board; provided, however, that such a construction or subcode official may be removed to permit the appointment of a person certified for appointment by the  Merit System Board.

     A construction official or subcode official in a noncivil service municipality shall be appointed for a term of four years and shall, upon appointment to a second consecutive term or on or after the commencement of a fifth consecutive year of service, including years of service in an equivalent job title held prior to the adoption of the State Uniform Construction Code, be granted tenure and shall not be removed from office except for just cause after a fair and impartial hearing.

     A construction or subcode official, to be eligible for appointment in civil service or noncivil service municipalities, shall be certified by the State of New Jersey in accordance with subsection c. of this section and shall have had at least three years' experience in construction, design or supervision as a licensed engineer or registered architect; or five years' experience in construction, design, or supervision as an architect or engineer with a bachelor's degree from an accredited institution of higher education; or 10 years' experience in construction, design or supervision as a journeyman in a trade or as a contractor.  A subcode official shall, pursuant to any subcode which he administers, pass upon:

     (1) matters relative to the mode, manner of construction or materials to be used in the erection or alteration of buildings or structures, except as to any such matter foreclosed by State approval pursuant to this act, and (2) actual execution of the approved plans and the installation of the materials approved by the State.  The construction official in each municipality shall be the chief administrator of the "enforcing agency."  He shall have the power to overrule a determination of a subcode official based on an interpretation of a substantive provision of the subcode which such subcode official administers, only if the construction official is qualified to act pursuant to this act as a subcode official for such subcode.  He may serve as subcode official for any subcode which he is qualified under this act to administer.  A subcode official or municipal engineer may serve as a construction official if otherwise qualified under the provisions of this act.  The municipal enforcing agency shall require compliance with the provisions of the code, of all rules lawfully adopted and promulgated thereunder and of laws relating to the construction, alteration, repair, removal, demolition and integral  equipment and location, occupancy and maintenance of buildings and structures, except as may be otherwise provided for.

     Two or more municipalities may provide by ordinance, subject to regulations established by the commissioner, for the joint appointment of a construction official and subcode official for the purpose of enforcing the provisions of the code in the same manner.

     c.  No person shall act as a construction official or subcode official for any municipality unless the commissioner determines that said person is so qualified, except for the following:

     (1) a municipal construction official or subcode official holding office under permanent civil service status, or tenure as otherwise provided by law on the effective date of this act or within one year thereafter and (2) a municipal construction official or subcode official holding office without such permanent civil service status or tenure on the effective date of this act or within one year thereafter; provided said construction official or subcode official not having such permanent civil service status or tenure shall be certified in accordance with this act within four years of the effective date thereof; provided further that a person holding on the effective date of this act a valid plumbing inspector's license from the Department of Health and Senior Services pursuant to Title 26 of the Revised Statutes may serve as a plumbing subcode official and a person holding on the effective date of this act a valid electrical inspector's license from the Board of Public Utilities pursuant to Title 48 of the Revised Statutes may serve as an electrical subcode official.  The commissioner, after consultation with the code advisory board, may authorize the preparation and conducting of oral, written and practical examinations to determine if a person is qualified by this act to be eligible to be a construction official or subcode official or, in the alternative, may accept successful completion of programs of training as proof of qualification within the meaning of this act.  Upon a determination of qualification the commissioner shall issue or cause to be issued a certificate to the construction official or subcode official or trainee stating that he is so certified.  The commissioner, after consultation with the code advisory board, may establish classes of certification that will recognize the varying complexities of code enforcement in the municipalities within the State.  The commissioner shall, after consultation with the code advisory board, provide for educational programs designed to train and assist construction officials and subcode officials in carrying out their responsibilities.

     Whenever the commissioner is required by the terms of this subsection to consult with the code advisory board and the matter in question concerns plumbing subcode officials, the commissioner shall also consult with the Public Health Council and Commissioner of Health and Senior Services.

     d.  The commissioner, after consultation with the code advisory board, may periodically require that each construction official and subcode official demonstrate a working knowledge of innovations in construction technology and materials, recent changes in and additions to the relevant portions of the State  Uniform Construction Code, and current standards of professional ethics and legal responsibility; or, in the alternative, the commissioner, after consultation with the code advisory board, may accept successful completion of appropriate programs of training as proof of such working knowledge.

     e. (1) Whenever a construction official or subcode official believes that a new home, as defined in section 2 of P.L.1977, c.467 (C.46:3B-2), has passed inspection or received a certificate of occupancy despite the fact that the new home does not meet the requirements of the State Uniform Construction Code, the official shall submit a written affidavit informing the commissioner of the relevant circumstances as soon as possible and in no event more than 30 days after obtaining knowledge or information that helped formulate the official's belief.

     (2) Notwithstanding any provision of law to the contrary, whenever the commissioner determines that a construction official or subcode official has failed to provide information in accordance with paragraph (1) of this subsection, the commissioner may suspend the  official for a period of time lasting a minimum of 30 days and not exceeding a maximum of 180 days.

(cf: P.L.2000, c.126, s.29)

 

2.  Section 14 of P.L.1975, c.217 (C.52:27D-132) is amended to read as follows:

14. a. The enforcing agency shall periodically inspect all construction undertaken pursuant to a construction permit issued by it to insure that the construction permit and alteration is performed in accordance with the conditions of the construction permit and consistent with the requirements of the code and any ordinance implementing said code.

b.  The owner of any premises upon which a building or structure is being constructed shall be deemed to have consented to the inspection by the enforcing agency and the department, of the entire premises and of any and all construction being performed on it until a certificate of occupancy has been issued.  An inspector, or team of inspectors, on presentation of proper credentials, shall have the right to enter and inspect such premises, and any and all construction thereon, for purposes of ensuring compliance with the provisions of the applicable construction permit, the code, and other applicable laws and regulations.  All inspection pursuant to this act shall be between the hours of 9 a.m. and 5 p.m. on business days, or when construction is actually being undertaken, provided, however, that inspections may be conducted at other times if the enforcing agency has reasonable cause to believe that an immediate danger to life, limb or property exists, or if permission is given by an owner, or his agent, architect, engineer or builder.  No person shall accompany an inspector or team of inspectors on any inspection pursuant to this act, unless his presence is necessary for the enforcement of this act, or the code, or unless consent is given by an owner or his agent, architect, engineer or builder.

c.  If the construction of a structure or building is being undertaken contrary to the provisions of a construction permit, this act, the code, or other applicable laws or ordinances, the enforcing agency may issue a stop construction order in writing which shall state the conditions upon which construction may be resumed and which shall be given to the owner or the holder of the construction permit or to the person performing the construction.  If the person doing the construction is not known, or cannot be located with reasonable effort, the notice may be delivered to the person in charge of, or apparently in charge of, the construction.  No person shall continue, or cause of allow to be continued, the construction of a building or structure in violation of a stop construction order, except with the permission of the enforcing agency to abate a dangerous condition or remove a violation, or except by court order.  If an order to stop construction is not obeyed, the enforcing agency may apply to the appropriate court as otherwise established by law for an order enjoining the violation of the stop construction order.  The remedy for violation of such an order provided in this subsection shall be in addition to, and not limitation, of, any other remedies provided by law or ordinance.

d.  Upon a determination by the department that a local enforcing agency is not performing necessary inspections in a timely manner, the department may direct the local enforcing agency to allow the owner to utilize controlled special inspections.  Controlled special inspections shall be performed by registered architects or licensed professional engineers paid by the owner, but independent of the owner's supervision or control.  In any case where a controlled special inspection is performed, the local enforcing agency fee applicable to that inspection shall be reduced by the amount of the fee paid by the owner to the architect or engineer performing the inspection.

(cf:  P.L.1975, c.217, s.14)

 

     3.  Section 20 of P.L.1975, c.217 (C.52:27D-138) is amended to read as follows:

     20. a. Any person or corporation, including an officer, director or employee of a corporation, who:

     (1) Violates any of the provisions of this act or rules promulgated hereunder;

     (2) Constructs a structure or building in violation of a condition of a building permit;

     (3) Fails to comply with any order issued by an enforcing agency or the department;

     (4) Makes a false or misleading written statement, or omits any required information or statement in any application or request for approval to an enforcing agency or the department;

     (5) Knowingly sells or offers for retail sale any item, device or material, the regular and intended use of which would violate any provision of the State Uniform Construction Code;

     Shall be subject to a penalty of not more than [$2,000] $5,000; provided, however, that any penalties in excess of [$500.00] $1,000 per violation may be levied by an enforcing agency only in accordance with subsection e. below.

     Paragraph (5) above does not prohibit the retail sale or offering for retail sale of any item, device or material which has more than one regular and intended use, if one of those uses does not violate the code, provided that the item, device or material is not publicly advertised or otherwise promoted by the seller or manufacturer as suitable for a use that would violate any  provisions of the code.

     b. Anyone who knowingly refuses entry or access to an inspector lawfully authorized to inspect any premises, building or structure pursuant to this act or who unreasonably interferes with such an inspection shall be subject to a fine of not more than $250.00.

     c.  With respect to subsection a. (3) of this section, a person shall be guilty of a separate offense for each day that he fails to comply with a stop construction order validly issued by an enforcing agency or the department and for each week that he fails to comply with any other order validly issued by an enforcing agency or the department.  With respect to subsections a. (1) and a. (4) of this section, a person shall be guilty of a separate offense for each violation of any provision of this act or rules promulgated hereunder and for each false or misleading written statement or omission of required information or statement made in any application or request for approval to an enforcing agency or the department.  With respect to subsection a. (2) of the section, a person shall be guilty of a separate offense for each violation of the conditions of a construction permit.

     d.  The penalties pursuant to this section may be collected in a summary proceeding pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.).  Jurisdiction to enforce such penalties is hereby conferred upon judges of the municipal court, in addition to the courts specified by N.J.S.2A:58-2. Suit may be brought by a municipality or the State of New Jersey.  Payment of a money judgment pursuant hereto shall be remitted, in the case of a suit brought by a municipality, to the municipal treasurer and in the case of a suit  brought by the State of New Jersey, to the State Treasurer.

     e.  Penalties in excess of [$500.00] $1,000 per violation may be levied by an enforcing agency only as follows:

     (1) A penalty for failure or refusal to comply with any lawful order shall not exceed [$1,000.00] $2,500 per violation, unless the failure or refusal to comply is done with the knowledge that it will endanger the life or safety of any person, in which case the penalty shall not exceed [$2,000.00] $5,000 per violation;

     (2) A penalty for failure to obtain a required permit prior to commencing construction or for allowing a building to be occupied without a certificate of occupancy shall not exceed [$2,000.00] $5,000 per violation;

     (3) A penalty for failure to comply with a stop construction order shall not exceed [$2,000.00] $5,000 per violation;

     (4) A penalty for willfully making a false or misleading written statement, or willfully omitting any required information or statement in any application or request for approval, shall not exceed [$2,000.00] $5,000 per violation;

     For purposes of this subsection, in an occupied building, only a code violation involving fire safety, structural soundness or the malfunctioning of mechanical equipment that would pose a life safety hazard shall be deemed to endanger the life or safety of a person.  In an unoccupied building only a code violation of a requirement intended to protect members of the public who are walking by the property shall be deemed to endanger the life or safety of a person.

(cf: P.L.2003, c.228, s.1)

 

4.  (New section)  The Commissioner of Community Affairs shall adopt, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), a lot improvement subcode, for the purpose of establishing adequate and appropriate standards to ensure that site work for new homes on privately-owned land are designed and constructed so as to protect public health, safety and welfare.

 

5.  (New section)  For purposes of this act:

"lot improvement" means any improvement built or installed upon privately-owned land, sold or offered for sale for residential purposes, including but not limited to a driveway, porch and deck, but not including "construction," as defined in section 3 of P.L.1975, c.217 (C.52:27D-121), or any improvements that are subject to inspection by a municipal engineer under authority of the "Municipal Land Use Law," P.L.1975, c.271 (C.40:55D-1 et seq.); and

"privately-owned land" means land used or intended to be used for residential purposes that is not owned by the United States of America, the State of New Jersey, a county, a municipality, a school district, or any other public board, authority, agency, commission, or council.

 

6.  (New section) The lot improvement subcode shall be enforced by the local enforcing agency having jurisdiction in the municipality, in accordance with rules adopted by the commissioner.

 

7.  (New section)  No lot improvements shall be built or installed on any privately-owned land except in accordance with the lot improvement subcode.

 

8.  This act shall take effective immediately, except that section 7 shall take effect sixth months after the effective date of the adoption of the lot improvement subcode by the commissioner.


STATEMENT

 

This bill would amend the “State Uniform Construction Coda Act” to respond to recommendations contained in the State Commission of Investigation report on new home construction.

This bill would authorize the Department of Community Affairs to direct a local enforcing agency that is not performing necessary inspections in a timely manner to allow the owner to have inspections performed by engineers or architects paid by the owner, but independent of the owner's supervision or control, and have the cost of such inspections charged against fees otherwise due.  This would provide a procedure for getting inspections done properly and in a timely manner in those cases in which a local enforcing agency is unable to deal with a sudden upsurge in the volume of construction work requiring inspection because of staffing limitations.

The bill would also protect homebuyers by bringing lot improvements within the scope of the protection provided by the State Uniform Construction Code.  While the new homes themselves are currently subject to inspection by local enforcing agencies, and streets and other improvements in developments that are going to be taken over by the municipality are subject to inspection by the municipal engineer, site improvements on the lot itself are not subject to inspection by any public official or agency.  This bill would make them subject to inspection by the local enforcing agency in accordance with a lot improvement subcode to be adopted by the Commissioner of Community Affairs.

Additionally, the bill would increase the maximum penalty that may be imposed upon violators of the construction code from $2,000 to $5,000 in order to promote compliance with the code.

Finally, the bill would affirmatively require a construction code or subcode official to notify the Commissioner of Community Affairs if the official believes that a new home has passed inspection or received a certificate of occupancy although the home does not satisfy code requirements.  The bill would allow the commissioner to suspend an official who fails to comply with this provision.