N.J. Admin. Code § 5:23A-2.3

Current through Register Vol. 56, No. 8, April 15, 2024

Section 5:23A-2.3 - Board decisions

(a) Except as otherwise provided in (b) below, the construction board of appeals shall hear any appeal, render a decision thereon, and file its decision with a statement of the reasons therefore with the enforcing agency or, in the case of a matter arising under P.L. 1995, c.54 or P.L. 1999, c. 11, with the municipality or approving authority or municipal utilities authority or sewerage authority, not later than 10 business days following submission of the appeal. In any case involving an appeal from an action, decision, notice or order of a local enforcing agency, the decision shall either affirm, reverse or modify the action, decision, notice or order of the enforcing agency or remand the matter to the enforcing agency for further action. In the case of any reversal, modification or remand, the board shall include in its statement of reasons the specific details of the nature and extent of the board's disagreement with the enforcing agency.

1. The board shall provide copies of the decision, by certified or registered mail, to the applicant and to any other parties entitled to notice pursuant to 5:23A-2.1(c).

2. Copies of decisions shall be filed with the Department of Community Affairs within 10 business days of the issuance of the decision as follows:

i. In cases arising under the State Uniform Construction Code Act or under P.L. 1995, c.54 or P.L. 1999, c. 11, with the Office of Regulatory Affairs of the Division of Codes and Standards; and

ii. In cases arising under the Uniform Fire Safety Act, with the Division of Fire Safety.

3. Copies of all board decisions shall be deemed to be public records and shall be available for public inspection at the offices of both the board and of any local enforcing agency or other governmental agency that is a party to a case.

(b) With the consent of the applicant, the period of time for the board to issue its decision may be extended beyond 10 business days; provided, however, that in any case involving issues affecting life safety in an occupied building, any such extension shall also require the consent of the local enforcing agency.

1. In any case involving the appeal of a fire code imminent hazard order issued pursuant to 52:27D-208, the hearing shall be held, and the decision issued, within 48 hours of the receipt by the board of the request; provided, however, that if the hearing is not scheduled to be held within that 48 hour period, the board secretary shall promptly so notify the applicant so that he or she may apply to the Department for an administrative hearing, as provided in 52:27D-208.

(c) Failure by the board to hear an appeal and render and file a decision thereon within the time limits prescribed in this section shall be deemed to be a denial of the appeal.

(d) Any party, including any enforcing agency, may appeal from a decision of a construction board of appeals to the Law Division of the Superior Court within the time allowed by the rules of court.

1. The local enforcing agency shall immediately comply with the ruling of the construction board of appeals unless a stay is obtained either from the board or from the Superior Court.

(e) In all cases, decisions shall be based upon applicable statutory, rule and code provisions and upon the evidence presented and accepted by the board.

1. Decisions shall be consistent with the intent of the applicable statutes and rules. In matters arising under the State Uniform Construction Code Act, the board shall be bound by interpretations and bulletins issued by the Department of Community Affairs pursuant to 5:23-3.9. Copies of all such interpretations and bulletins shall be provided to all boards and enforcing agencies by the Department.

(f) The failure of a party to appear or to present evidence shall not result automatically in a decision in favor of the other party.

(g) The board may reduce a penalty that is under appeal if it is clearly excessive or may void it if it is found not to be authorized by statute or by rule. The board shall specifically explain its reasoning in any case in which it reduces a penalty that is already below the maximum permitted and shall explain why the reduction is not likely to impede the deterrence of future violations. In determining whether to reduce a penalty, the board shall consider the extra costs required of the local enforcing agency due to the actions or inaction of the appellant regarding compliance. A valid penalty shall not be totally abated if the local enforcing agency demonstrates the lack of a good faith compliance effort on the part of the applicant prior to the imposition of the penalty.

1. A penalty may not be reduced except to the extent that it is clearly excessive. Any determination as to whether a penalty is excessive shall take into account the maximum amount of penalty that might have been imposed for the particular violation. No reduction in the amount of a penalty may be made final unless the violation either has been abated by the time of the hearing or shall have been abated within 30 days thereafter.

2. On an appeal of a penalty, the penalty as originally assessed by the enforcing agency, unless unauthorized by statute or by rule, shall be automatically reinstituted if the violation remains unabated after 30 days following receipt by the applicant of the decision, unless an extension of time for abatement of the violation has been granted by the enforcing agency. The board shall inform the appellant of these facts.

3. On an appeal of a penalty, the appellant may not offer argument that the violation(s) for which the penalty was issued did not exist, and the board shall accept the existence of the violation(s) as having been proven, provided that a notice of the underlying violation has been served and either no timely appeal was filed or the violation notice was sustained on appeal.

(h) On an appeal from a failure or refusal to issue a permit, the board may deny the appeal and return the matter to the enforcing agency for appropriate action or may direct the enforcing agency to grant the permit if the appellant is so entitled in accordance with the code. If the board determines to direct that the permit be granted, the enforcing agency shall provide the board with any recommendations that it may have as to conditions or limitations. The board shall either direct that these conditions or limitations be included or provide specific reasons for not doing so.

(i) On an appeal relating to a variation or variance, as the case may be, the board may grant the variation or variance and shall impose such conditions as may be appropriate to comply with the intent and purpose of the applicable code. No variation or variance shall be granted absent proof that the applicant submitted the necessary application to the local enforcing agency and either the application was denied or no action was taken within the time allowed by the applicable rule (20 business days in Uniform Construction Code cases and 30 days in Uniform Fire Code cases).

1. In Uniform Construction Code cases, the board shall be bound by the provisions of 5:23-2.9.

2. In Uniform Fire Code cases, the board shall be bound by the provisions of 5:70-2.14.

(j) A written decision shall contain the following:

1. A statement of the date the appellant received the notice, order, decision, informational copy of a voucher or municipal statement of activity against a deposit or escrow account being appealed, the date the appeal was filed, the appearances or absences of the parties and the board members participating;

2. A statement of pertinent facts, as follows:

i. In a Uniform Construction Code or Uniform Fire Code case, the statement shall include the type of use, the nature of the violation cited and of the action appealed, the basis of the appeal and the basis for the notice, order or decision. A copy of the local enforcing agency's notice, order or decision shall be appended to the decision, unless to do so would be unduly burdensome, in which case the omission shall be explained.

ii. In a P.L. 1995, c.54 or P.L. 1999, c. 11 case, the statement shall include the nature of the service rendered to the municipality, municipal utilities authority or sewerage authority, the identification of the approving authority, the identification of the professional who rendered the service, the amount of time spent by the professional or other persons in rendering the service, the amount charged for the service, the amount of that charge that is in dispute and the basis of the dispute. A copy of the professional's voucher or the municipal or municipal utilities authority or sewerage authority statement of activity against the deposit or escrow account, whichever is applicable, shall be appended to the decision.

3. A statement of the names and areas of expertise of any expert witnesses, the party on behalf of which each expert witness testified and whether any materials not in the record were used by the expert witness. If so, the decision shall include copies or descriptions of such materials.

4. In any case involving a penalty, the board shall state the maximum permissible penalty applicable and explain the reason for any reduction.

5. The decision shall include the board's analysis of the case, including its understanding of the code provisions or other provisions of law applicable to the case.

i. If, in a Uniform Construction Code or Uniform Fire Code case, the board determines to reverse or modify the action taken by a local enforcing agency, or to direct that action be taken by a local enforcing agency, it shall provide a specific and detailed explanation of the basis for its action, including reference to any technical code provisions relied upon.

ii. In any case arising under P.L. 1995, c.54 or P.L. 1999, c. 11, the board shall provide a specific and detailed explanation of its basis for a determination that a disputed charge either is or is not valid and of its basis for any modification of any charge.

6. There shall be a statement of disposition containing the board's determination.

N.J. Admin. Code § 5:23A-2.3

Administrative correction.
See: 35 New Jersey Register 219(d).
Amended by R.2004 d.36, effective 1/20/2004.
See: 35 New Jersey Register 4632(a), 36 New Jersey Register 467(a).
Inserted references to P.L. 1999, c.11 and municipal utilities authority or sewerage authority throughout.