By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Business & Real Estate Attorney
There is a section of the Uniform Construction Code found at N.J.A.C. 5:23-24.34, entitled Protection of Adjoining Properties. I read about the regulation in a law journal. In short, the regulation requires that when you are about to undertake construction, rehabilitation or demolition work that could potentially damage adjoining properties, you need to enter the adjoining properties to determine what measures are necessary to safeguard those properties before you can obtain a construction permit from the municipal construction official. And, while this might sound pretty straightforward, there is one important catch: you have to obtain written consent from the owners of the adjoining properties accepting your proposed safety measures to be implemented. Just think about it for a moment and how this regulation is totally crazy (alright maybe that’s extreme, so substitute unreasonable) if a neighbor opposes your project.
First, is it even appropriate for a construction official to refuse a construction permit until written consent is obtained from a neighboring property owner to implement measures to safeguard their property?
I think it’s not. N.J.A.C. 5:23-2.34(c) and (d) states that “the measures to be taken to safeguard adjoining properties shall be submitted with the permit application for review and approval by the construction official,“ and that ”upon approval of the measures to safeguard the adjoining properties, the owner intending to undertake the construction, rehabilitation, or demolition work shall provide a copy of the measures to the owners of adjoining properties and shall request written permission to implement the measures prior to the commencement of work.” N.J.A.C. 5:23-2.34 (d)(i) then goes on to state that “written consent from the owners of the adjoining properties to implement the measures to safeguard the properties must be obtained.”
N.J.A.C. 5:23-2.34 does not expressly state that a construction permit cannot be issued absent the construction official receiving a copy of the written consent. But then again the regulation does not expressly state that the construction official can issue the permit.
So what do you do if the construction official is demanding written consent and there is a chance an adjoining property owner is going to refuse to provide same?
Document every communication with adjoining property owners with confirming letters and/or emails. Put in writing, the adjoining owner’s position e.g., what measures to safeguard their property are acceptable and/or unacceptable. This type of documentation provides credibility in the event of subsequent “he said/she said” argument – and may limit the ability of neighboring property owners to subsequently change their stories.
But what if the construction official still refuses to issue a construction permit and the adjoining property owner does not respond to threats of litigation?
Your next step is filing an application for a hearing with the Construction Board of Appeals of your county to overturn the construction official’s decision. This process is quicker and less expensive than Court and allows for the creation of a record to utilize if subsequently you must go to Superior Court. The adjoining property owner can be subpoenaed to appear and testify under oath. Moreover, the board members, who are familiar with safety issues during construction, can ask questions and participate in a dialogue that (hopefully) demonstrates the validity of your position.
The creation of a record before the Construction Board of Appeals will be useful in any appeal to the Superior Court because the owner has developed a record after exhausting his/her administrative remedies.
To discuss your NJ Business and/or Real Estate matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com. Please ask us about our video conferencing consultations if you are unable to come to our office.