TEMPORARY RELAXATION OF REGULATORY PROVISIONS CONCERNING CODE INSPECTIONS AND THE EFFECT ON COMMUNITY ASSOCIATIONS
During the spring and summer months, many community associations engage in capital improvement or routine projects which might require inspections to determine compliance with fire and construction codes. The COVID-19 pandemic and the restrictions put in place have thrown a wrench into what would otherwise be a regular process. The restriction put in place has directly impacted the ability of construction officials to conduct inspections and issue permits.
One of the most pressing restrictions resulting from the pandemic involves social
distancing. In an effort at reducing the spread of the virus, authorities have determined what jobs or industries qualify as essential and non-essential entities. Any non-essential jobs or industries must abide by the restrictions requiring their personnel to work from home and in many cases remain closed to the public. Industries that are deemed essential, however, may carry on with business as usual, but must comply with the social distancing mandates. Here in New Jersey, Governor Phil Murphy issued on March 21, 2020, a statewide stay at home order for non-essential businesses to stem the spread of the COVID-19 virus under Executive Order No. 107. While Executive Order No. 107 directs the closure of all non-essential businesses it allowed for certain exceptions such as for law enforcement agencies (construction officials). In addition, Governor Murphy signed Executive Order No. 108 which invalidates any restrictions put in place by counties or municipals that in any way will or might conflict with Executive Order.
The State of New Jersey also put in place certain temporary policies to complete inspections and issue permits in light of the pandemic and the restrictions put in place. To facilitate the continuity of the construction office work related to plan review and inspection, the State of New Jersey also issued Executive Order 103 on March 9, 2020. The Order temporary relaxes and modifies certain provisions concerning Minor Work (N.J.A.C 5:23-2.17A), inspections (N.J.A.C 5:23-2.18) and the requirements for Certificates of Occupancy (N.J.A.C 5:23-2-23). Minor work involves inspections of items such as residential heaters, air conditions, and water hoses, to name a few. In the case of buildings other than one and two-family dwellings, inspections could include fire suppressions systems, heat producing devices and other inspections. The inspection process generally requires preliminary inspections, progress of work inspections and final inspections. Certificates are issued upon the request of the owner of a building or structure.
Some of the relaxed rules put in place include:
- All required inspections for new construction and any work on the exterior or outside of any occupied building should be performed as usual.
- Rough inspections for new additions should be performed, provided no entry to the occupied home or building is required or that appropriate social distancing is in effect.
- Contractors may report construction activity, such as rough inspections, in existing occupied buildings with photos or other documentation for the time being.
- Items listed as Minor Work at N.J.A.C. 5:23-2.17A require only a final inspection. This includes inspections of replacement items such as a residential heater, air conditioner and/or water heaters. These inspections may be deferred to a later date. The contractor should report construction activity as indicated in item 3 above.
In the event a permit was issued prior to the closure of a construction office due to the COVID-19 virus, and inspections have been deferred, and construction officials will perform Certificate of Continued Occupancy (CCO) inspection when the offices reopen. CCO inspection documentation will include the following: a report describing the work that was completed within the time that no inspections were available; the design professional or firm associated with the project shall oversee, approve, and document the portions of the project where no inspections were performed; licensed/registered tradesmen shall document the process of their work in accordance with the inspection procedures of the UCC; and before, during, and after pictures and/or video shall be included in the documentation. A key aspect to the CCO inspection rules is that inspections will be limited to visible portions of a building at the time of inspection. For items not visible, the construction official must have probable cause to uncover completed work to inspect. If a building was never issued a Certificate of Occupancy, the same procedures will apply and a Temporary Certificate of Occupancy will be issued, with the Certificate of Occupancy being issued at a later dated.
N.J.A.C 5:23-2.17A(d) was temporary relaxed to allow construction officials to inspect minor work within thirty (30) days from the termination of Executive Order No. 103, as opposed to three (3) days. N.J.A.C 5:23-2.18(c)(1)(2) which applies to buildings other than one or two family dwellings was also relaxed to allow for inspections within ninety (90) days from the termination of Executive Order No. 103 instead of three (3) days.
On March 21, 2020, the Division of Fire Safety, Bureau of Fire Code Enforcement issued a memorandum in line with Executive Order 103. Considering the COVID-19 pandemic, the Division suspended performing certificate of smoke alarm, carbon monoxide alarm and portable fire extinguisher compliance inspections during the period Executive Order 103. In person inspections have been suspended and requestors are directed to use virtual means to allow local enforcing agencies to facility their request. This might take the form of FaceTime, Skype, video or other means that would allow verification of compliance. In addition, routine questions will be handled electronically via email and phone.
Based on the relaxed rules, it is key for associations to provide detailed documentation when requesting an inspection from the construction official. Associations should ensure that they or their contractors have the tools necessary to facilitate virtual inspections if necessary. This will ensure that completed work is not disturbed at the end of the temporary inspection deadlines instituted under Executive Order 103. The Division of Fire Safety memorandum advises that code requirements will be reviewed to determine if modifications are necessary, and that requestors should not worry if they are unable to complete required inspections at this time.
The information in this Client Alert is provided solely for information purposes. It should not be construed as legal advice on any specific matter and is not intended to create an attorney-client relationship. The information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based upon particular circumstances. Each legal matter is unique, and prior results do not guarantee a similar outcome.
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