N.J. Admin. Code § 5:23A-2.2

Current through Register Vol. 56, No. 9, May 6, 2024

Section 5:23A-2.2 - Hearing procedures

(a) All parties to any dispute shall be accorded full opportunity to address the construction board of appeals, present testimony and examine and cross-examine witnesses, consistent with reasonable rules of procedure and due process. All testimony shall be under oath or affirmation. Parties shall be allowed to appear through legal counsel or public or corporate officers. Construction, subcode and fire officials may appear and testify on behalf of their local enforcing agencies.

(b) A quorum of the board for cases arising under the State Uniform Construction Code Act or the Uniform Fire Safety Act shall consist of three regular and/or alternate members. A quorum of the board for cases arising under P.L. 1995, c.54 or P.L. 1999, c. 11 shall consist of four regular and/or alternate and/or special members.

(c) Except as otherwise provided in (d) below, when there are not five regular and/or alternate members present to consider an appeal, or if five regular and/or alternate members are present but a code discipline that is involved in a construction code case is not represented, or if no regular or alternate member who is certified as a fire official is present to hear a fire code case, or if either of the special members, or an alternate meeting the same qualifications requirement, is not present in a case arising under P.L. 1995, c.54 or P.L. 1999, c. 11, either party shall be entitled to have the hearing adjourned. If neither party requests an adjournment, the case may be heard by the board if a quorum is present.

1. In a case involving the elevator safety subcode, a party shall only have a right to an adjournment due to the absence of a board member having elevator subcode qualification if there is at least one regular or alternate member of the board who has such qualification.

(d) No adjournment shall be granted without the consent of the local enforcing agency having jurisdiction in any case involving issues of life safety in an occupied building. If, in any such case, a quorum is not present, or a quorum is present but does not include either a representative of any construction code discipline that is required to be represented on the board and is involved in the case or a certified fire official, as the case may be, the case shall not be heard and the appeal shall be deemed to have been denied.

(e) At the beginning of each hearing, the chairperson, or the person presiding in his or her absence, shall state for the record the statute under which the appeal is being brought, the nature and date of the action appealed from, the date the appeal was filed and the basis of the appeal. Thereafter, the matter shall proceed with the representative of the municipality or the professional hired by the municipality or municipal agency, as the case may be, explaining the basis for the action, ruling, order, notice or fee, as the case may be. The appellant, or his or her representative, shall then present the basis for his or her disagreement.

1. Both parties shall be allowed to present witnesses and offer evidence and to examine and cross-examine witnesses, consistent with principles of due process and fairness. Motions and objections may be filed in writing without the necessity of an appearance by the party, but written testimony not subject to cross-examination shall not be allowed; provided, however, that any writings that would be admissible in a court of law shall not be deemed to be included within the prohibition of "written testimony." Any board member may question any witness at the conclusion of that witness' questioning by the parties.

2. By having filed an appeal, a party shall be deemed to have consented to the entry upon the site of members and staff of the board. Any member who has visited a site subsequent to the filing of the appeal shall disclose that fact on the record prior to a party's presentation and shall be subject to questions from either party or any board member pertaining to the visit. A board member shall not, during the course of any such visit, engage in any discussion of issues involved in the case, and shall give a full account of any conversations that do take place in the course of any such visit as part of the disclosure of having visited the site.

3. Neither the board nor any individual member shall discuss any case with either party, including the representative of a party, without the other party, or the representative of the other party, being present; provided, however, that this prohibition shall not apply to statements made on the record in a hearing of which the other party was given notice and the opportunity to participate.

(f) In all cases, the board shall have the power to administer oaths and to issue subpoenas to compel the attendance of witnesses and the production of relevant evidence. The provisions of the "County and Municipal Investigations Law," P.L. 1953, c.38 (2A:67A-1 et seq.) shall apply.

N.J. Admin. Code § 5:23A-2.2

Amended by R.2004 d.36, effective 1/20/2004.
See: 35 N.J.R. 4632(a), 36 N.J.R. 467(a).
In (b) and (c), inserted "or P.L. 1999, c.11" following "P.L. 1995, c.54".
Amended by R.2006 d.355, effective 10/2/2006.
See: 38 N.J.R. 1789(a), 38 N.J.R. 4175(a).
Rewrote (e)2.