Supreme Court Recognizes Continuing Jurisdiction for Municipal Enforcement of Construction Code
In a decision handed down by the New Jersey Supreme Court recognized the right of both municipal code enforcement officials, and the Department of Community Affairs, to enforce compliance with the Uniform Construction Code even after a Certificate of Occupancy is issued. DKM Residential Properties Corp. v. The Tp. Of Montgomery, 182 N.J. 296 (2005). In so ruling, they recognized that the Uniform Construction Code Act is remedial legislation in nature, and is intended to address directly matters affecting health, safety and welfare. This legislative scheme must receive liberal construction in order to advance its stated purposes.
The Commissioner of the Department of Community Affairs is charged with the responsibility and given the power to effectuate the purposes of the act. In that regard, the Commissioner is assisted by locally appointed and state certified municipal construction officials and sub-code officials.
The statute authorizes the imposition of sanctions in the form of monetary penalties for violators of the code where any person who violates the provisions of the code, constructs a structure or building in violation of the condition of a building permit, or 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.
N.J.A.C. 5:23-2.30 authorizes a notice of violation wherever an official or sub-code official shall determine that there exists a violation of the provisions of the regulations, or there exists a violation of a permit or certificate issued under the regulations.
In this New Jersey Supreme Court decision, the Court was dealing with the question of whether or not a developer can continue to be held responsible for construction code defects even after a Certificate of Occupancy is issued and even after title to the property has been conveyed to a purchasing homeowner. The Court ruled that, as a matter of law, a developer can continue to be held liable.
The same legal foundation for this conclusion supports the proposition that any developer of a manufactured homeland lease community, who is responsible for installation of foundations which comply with the Uniform Construction Code, may be held liable for deviations from the code.
All members of the manufactured housing industry have been previously alerted to the Department of Community Affairs’ efforts to address strict compliance with the Uniform Construction Code on the part of community owners, or other installers as a result of permits being issued for the installation of foundations, and at every step of the construction of that foundation. The Uniform Construction Code in New Jersey, until recently, has been the B.O.C.A. National Building Code. That code made the owner of the land responsible to the consumer for anchoring or tie downs. (“The owner shall anchor or cause to be anchored all mobile units located on the parking space.”). This recent Supreme Court decision should alert all of our industry members to the need to carefully comply with these laws, or to monitor compliance by third party installers to deal with the potential that, even where a Certificate of Occupancy has been issued, subsequent enforcement action might be undertaken by the Department of Community Affairs, or local officials.
There are issues which may relate to that enforcement ability which are not addressed by the recent Supreme Court opinion such as the approval by municipal officials of insufficient plans, and the potential “estoppel” arguments that can be made where such approvals have resulted from the exercise of discretion by these code officials who are acting within the scope of their authority. This article is not intended to explore those thoroughly. Addressing those issues will be unnecessary for all community operators who comply with the construction code and its current requirements.
By Christopher J. Hanlon, Esq., a NJ Landlord/Tenant Attorney
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