N.J. Admin. Code § 5:23-4.3

Current through Register Vol. 56, No. 11, June 3, 2024

Section 5:23-4.3 - Municipal enforcing agencies-establishment

(a) Notice of intention to establish:

1. Any municipality seeking to establish and operate an enforcing agency, pursuant to the act and the regulations, shall first notify the department of its intent to establish such an agency by registered and certified mail, return receipt requested, not later than one month prior to the effective date of the regulations. Such notice, in the form of a resolution of the governing body, shall state that enforcement will be carried out either by the municipal enforcing agency or by interlocal agreement. The resolution shall also state the extent to which the municipality anticipates that private on-site agencies will be utilized. The resolution shall state the address of the enforcing agency and the board of appeals, if different. Such resolution shall additionally state whether a board of appeals will be appointed within the municipality, whether an intermunicipal joint board of appeals will be established or whether appeals will be left to the jurisdiction of the county.

2. Any municipality which shall not choose to establish and operate an enforcing agency pursuant to the act and the regulations shall notify the department of this intent by registered or certified mail, return receipt requested, not later than one month prior to the effective date of the regulations. Such notice, in the form of a resolution of the governing body, shall state that the governing body requests that the department assume the task of administration and enforcement.

3. A municipality may, by resolution, provide for the employment of an elevator subcode official, licensed in accordance with N.J.A.C. 5:23-5, to perform inspections and witness tests within its jurisdiction. If a municipality fails to employ such an official by July 1, 1992, the Department shall have exclusive jurisdiction to review plans and witness tests for, and inspect elevators within, the municipality. Thereafter, a municipality may acquire such jurisdiction by enacting the necessary resolution and employing an elevator subcode official, but the transfer of jurisdiction to the municipality shall not be effective until 120 calendar days after a certified copy of the resolution is received by the Department.

(b) Remedies:

1. Whenever the department shall not have received the notice as described in (a)1 of this section, at least one month prior to the effective date of the regulations, it shall forward by certified or registered mail, return receipt requested, to the governing body of any such municipality, a notice of failure to comply with these regulations, a statement detailing the implications of such failure, and a statement of intention to seek the order of a court of competent jurisdiction requiring that the municipality declare its intention with respect to enforcement pursuant to (a)1 of this section or in the alternative that the department be established as the enforcing agency in such municipality.

2. The department may seek an order pursuant to this subsection after the expiration of 10 days from the mailing of such notice.

(c) Term; transfer:

1. Whenever a municipality pursuant to (c)2 below, having relinquished its jurisdiction for the administration and enforcement of the code to the department, shall seek to reestablish such jurisdiction, it may do so upon the passage of an ordinance establishing an enforcement agency in accordance with the regulations; provided however, that such ordinance shall not take effect until the expiration of 120 calendar days from the date of certified copy of the ordinance is received by the department in order to give the department sufficient time to reallocate staff assignments.

2. Whenever a municipality having accepted responsibility for administration and enforcement of the regulations shall seek to relinquish such authority to the department, it may do so upon the passage of an ordinance repealing the functions and duties of the enforcing agency and transferring same to the department; provided however, that such ordinance shall not take effect until the expiration of 120 calendar days from the date a certified copy of the ordinance is received by the department, in order to give the department sufficient time to hire any necessary staff and to integrate the municipality's enforcing agency functions within its overall inspection program; provided further that whenever the commissioner shall determine that the interest of public health, safety and welfare cannot be accommodated within this period, the commissioner may notify the municipality that the department will not accept jurisdiction for an additional period to be specified. During this period the municipality shall continue to enforce the regulations.

i. Whenever the commissioner shall seek to delay acceptance of jurisdiction pursuant to this section beyond 120 days, such shall be upon notice and opportunity to be heard pursuant to the Administrative Procedures Act, N.J.S.A. 52:14.B-1 et seq.;

ii. In any transfer of authority, the department shall succeed to any and all records and files of the enforcing agency, or copies of such records and files, if the municipal enforcing agency so provides, which the department may transport to a location of its choice after the effective date of the repealing ordinance;

iii. The department shall be free to phase its procedures and operation in during the interim between the adoption of any repealing ordinance and its effective date;

iv. The department's fee schedules, hearing provisions, and any other requirements which pertain when the department acts in its capacity as the enforcing agency, shall come into operation on the effective date of the repealing ordinance. To the extent feasible, the department shall treat the holder of an outstanding construction permit in the same manner as he would have been treated under the municipal enforcing agency;

v. Whenever a county board of appeals shall have acted for such municipality, the commissioner shall notify the county board of the transfer and the termination of its jurisdiction.

3. Except as otherwise provided in (a)3 above with regard to enforcement of the elevator safety subcode, the Department shall not assume partial responsibility for the enforcement of the regulations pursuant to this section. Whenever the Department is constituted as the local enforcing agency by the municipality, it shall act as the exclusive enforcing agency with respect to all subcodes and all areas of the regulations within the limits of such municipality.

(d) Establishment by ordinance:

1. Any municipality which shall have complied with (a)1 above shall thereafter, but prior to the effective date of the regulations, adopt an ordinance constituting its enforcing agency.

2. Such ordinance shall establish the construction official as the chief administrator of the enforcing agency. It shall establish as many subcode official positions as the Commissioner shall issue types of licenses for subcode officials. Any person who holds more than one subcode official position shall be qualified for each position pursuant to N.J.A.C. 5:23-5. Staffing procedures shall not result in an inadequate municipal inspection force.

3. Such ordinance need not require that the construction official or each of the subcode officials, or any of their assistant and staff, work exclusively for the enforcing agency, or that they be located in one office or building within the municipality. But such ordinance shall specify that for purposes of the regulations and its enforcement, any such dispersed personnel are subject to the procedures and policies of the enforcing agency and are primarily responsible to the construction official. Further, such ordinance shall indicate that irrespective of any dispersal of personnel, the public shall have the right, unless in the case of emergency, unforeseen or unavoidable circumstance, to do business at one enforcing agency center. Any reorganization necessary to provide for the coordination of dispersed personnel so as to enable the enforcing agency to act within the various time limits established by the act and the regulations shall be provided in such ordinance or may be delegated to the appointing authority.

4. Such ordinance shall, if the municipality has so chosen, establish a construction board of appeals in accordance with N.J.A.C. 5:23A. The municipality may permit the board to hire new staff or to utilize existing municipal staff in addition to such staff as is provided for in N.J.A.C. 5:23A as it may deem appropriate.

5. Such ordinance shall establish a system of fees in accordance with 5:23-4.17.

6. Such ordinance, including any amendments thereto whenever made, shall be forwarded to the department upon adoption.

(e) Personnel:

1. Personnel hired or transferred on a full or part-time basis, for purposes of the administration of the act and the regulations, may be hired or transferred by resolution of the governing body, or by such other procedure as is provided by law in the municipality for such purposes.

2. Not later than 30 days after the effective date of the regulations and whenever changed thereafter, the municipality shall file with the department a list containing the names and certification numbers of the construction official and each subcode official.

(f) Departmental intervention:

1. Except as otherwise provided in (f)2 below, whenever the Department shall have reasonable cause to believe that a local enforcing agency is not carrying out its functions as intended by the Act and regulations, it shall forward, by certified or registered mail, return receipt requested, to the governing body, to the construction official, and to the municipal manager or administrator, if any, having jurisdiction over the local enforcing agency, a notice stating the nature of the alleged failure of the local enforcing agency to perform, the implications of such failure, and a statement setting forth the corrective action required to be taken by the local enforcing agency.

i. In the case of a local enforcing agency which the Department finds to have repeatedly or habitually failed to enforce the provisions of the State Uniform Construction Code Act, the Department shall issue an order, in the manner, and subject to the requirements, set forth in (f)1 above, to dissolve the local enforcing agency and replace it by the Department.

ii. No local enforcing agency shall be dissolved and replaced by the Department for repeated or habitual failure to enforce the regulations except upon its failure, or the failure of the governing body or official having jurisdiction over it, to comply with a notice issued by the Department setting forth corrective action required to be taken in order to ensure proper administration of the local enforcing agency and enforcement of the Code.

iii. Prior to the issuance of an order for the dissolution of any local enforcing agency and its replacement by the Department, or as an alternative to any such order, the Department shall place the local enforcing agency under the temporary supervision of an administrator employed by the Department. For the first 60 days of any period in which a local enforcing agency is under the temporary supervision of a Department administrator, the local enforcing agency shall retain fee revenue and be responsible for the payment of employee salaries and other expenses, other than the expenses of the administrator, in the same manner as if the local enforcing agency were not under the supervision of a Department administrator. In the event the period of temporary supervision extends beyond 60 days and the Department has assigned its own personnel to serve as officials and/or inspectors, fee revenue after the sixtieth day shall be paid to the Department and used by the Department to pay the costs of the local enforcing agency.

iv. In the event that any municipality having jurisdiction over a local enforcing agency subject to any notice or order issued pursuant to this paragraph is aggrieved by such notice or order, the municipality shall be entitled to an administrative hearing conducted in accordance with the Administrative Procedure Act, 52:14B-1 et seq., and the Uniform Administrative Procedure Rules, N.J.A.C. 1:1. A request for any such hearing must be mailed, within 15 days after receipt of the notice or order being appealed, to the Hearing Coordinator, Division of Codes and Standards, PO Box 802, Trenton, NJ 08625-0802. The right to a hearing under this paragraph shall also extend to any licensed code enforcement official or inspector who would be adversely affected by any Departmental order.

2. In any case in which it may find it necessary to do so, the Department may supplant or replace a local enforcing agency for a specific project.

(g) The commissioner may, upon written application by the governing body of a municipality, temporarily waive any administrative requirement of the regulations which because of special circumstances impedes a municipality in the enforcement of the code. Any municipality seeking such a temporary waiver, shall in its written request state the nature of the problem, the relief sought and alternative measures, if any, which might meet the intent of the requirement for which such temporary waiver is sought. The commissioner may grant a hearing pursuant to the Administrative Procedures Act, if a more complete record of the case is deemed necessary.

N.J. Admin. Code § 5:23-4.3

Amended by R.1989 d.435, effective 8/21/1989.
See: 20 N.J.R. 1764(a), 21 N.J.R. 2474(a).
Deleted (e), which was "Interim Procedures" and recodified (f) "Personnel" as new (e), with no change in text. Deleted (g) "Failure to perform" and reserved subsection as (f). Recodified old (h) as (g).
Amended by R.1989 d.551, effective 11/6/1989.
See: 21 N.J.R. 2436(a), 21 N.J.R. 3460(b).
New subsection (f) added regarding departmental intervention.
Administrative Correction to (d)4.
See: 22 N.J.R. 2503(b).
Amended by R.1991 d.325, effective 7/1/1991.
See: 23 N.J.R. 805(a), 23 N.J.R. 2046(a).
Elevator plan review provisions added at (a)3.
Amended by R.1992 d.245, effective 6/15/1992.
See: 24 N.J.R. 1148(a), 24 N.J.R. 2244(a).
Exception for elevator safety subcode added to (a)3.
Administrative change.
See: 26 N.J.R. 5007(a).
Amended by R.1996 d.236, effective 5/20/1996 (operative January 1, 1997).
See: 27 N.J.R. 4050(a), 28 N.J.R. 2586(a).
Amended by R.1997 d.409, effective 10/6/1997.
See: 29 N.J.R. 2736(a), 29 N.J.R. 4281(a).
In (f)1iv, changed Division for appeals.