In response to the COVID-19 pandemic, Governor Phil Murphy issued Executive Order No. 107 (“EO 107”) on March 21, 2020, mandating that all non-essential brick-and-mortar retail businesses close to the public as long as EO 107 remains in effect. EO 107 does not require closure of construction projects. Not only does EO 107 identify “construction workers” as an example of employees who need to be physically present at their work sites in order to perform their duties, but also, shortly after issuing EO 107, Governor Murphy sent a tweet confirming that work at construction sites may continue. On the same date that Governor Murphy issued EO 107, he issued Executive Order No. 108 (“EO 108”), which provides that local officials may not enact or enforce rules or regulations that conflict with EO 107.
Although work at construction sites continues in New Jersey, there are myriad ways in which construction projects can be adversely impacted by the COVID-19 virus. One potential impact concerns ongoing inspections of construction work performed by local construction code officials pursuant to the Uniform Construction Code (UCC), N.J.A.C. 5:23. Construction code officials routinely inspect ongoing projects at various points during construction and issue Certificates of Occupancy for structures when requirements for same are satisfied. From a legal perspective, as a result of EOs 107 and 108, local construction code officials in New Jersey cannot enact measures to restrict construction projects from proceeding. However, from a practical perspective, COVID-19 could reduce the efficacy of a local construction code office or require its closure altogether, which could have a significant impact on ongoing projects within that locality.
In recognition of the potential impact from the COVID-19 virus, the New Jersey Department of Community Affairs (DCA), which establishes and enforces building codes through its Division of Codes and Standards and in partnership with local construction code offices, adopted on an emergency basis a temporary rule relaxation of three UCC provisions. DCA’s authority for this emergency adoption is Governor Murphy’s Executive Order No. 103 (“EO 103”), dated March 9, 2020, which authorized New Jersey agencies to waive, suspend, or modify any existing rule where the enforcement of the rule would be detrimental to the public welfare during the public emergency created by the COVID-19 pandemic. The temporary rule relaxation, which can be found here, addresses provisions concerning Minor Work (N.J.A.C. 5:23-2.17A), Inspections (N.J.A.C. 5:23-2.18), and Certificate requirements (N.J.A.C. 5:23-2.23) as follows:
- Inspections of Minor Work
- Regular Rule: The UCC requires inspections of “minor work” to occur within three business days of a request. “Minor work” is defined in N.J.A.C. 5:23-2.17(c) and includes, for example, a renovation or alteration of a one- or two-family dwelling that does not involve work on primary structural members’ replacement of boilers, furnaces, or air conditioning units; or replacement of existing plumbing piping work with material of like capacity.
- Temporary Relaxed Rule: Inspections of “minor work” can now occur within 30 days from the termination of Governor Murphy’s Executive Order No. 103.
- Regular Rule: The UCC generally requires construction code officials to perform a preliminary inspection, inspections during the progress of the work, and a final inspection. Inspections are supposed to be performed within three business days of a request.
- Temporary Relaxed Rule: Inspections can now occur within 90 days from termination of Governor Murphy’s Executive Order No. 103. If a construction office needs to close due to COVID-19, plan review for any new projects will be placed on hold. Further, if a construction office closes, construction can continue without ongoing inspections by the code official. Inspections that have been deferred during the office’s closure will occur after the office reopens. The relaxed rule includes important documentation requirements in connection with the office reopening, including, at a minimum: (1) a report must be provided describing the work that was completed when inspections were not available; (2) the design professional associated with the project shall oversee, approve, and document the portions of the project where no inspections were performed; (3) licensed/registered tradesmen shall document their work in accordance with the inspection procedures of the UCC; and (4) before, during, and after pictures and/or videos must be provided. This process is the same whether construction is on a building that has previously received a Certificate of Occupancy (CO) or construction is of a new building that has not previously received a CO, except that: (1) if the building is an existing building that previously received a CO, the local office will perform a Certificate of Continued Occupancy (CCO) inspection and issue a CCO; and (2) if the building has not previously received a CO (as in the case of new construction, for example), request should be made to the DCA to obtain a Temporary Certificate of Occupancy (TCO) until the local agency can issue a CO.
- Certificate Requirements
- Regular Rule: A code official issues a CCO for an existing building upon request of the owner.
- Temporarily Relaxed Rule: If a construction office closes due to COVID-19, a construction official may perform a CCO inspection on an existing building once the office reopens. The CCO inspection can be performed even if the owner has not requested it if the local code official determines that such an inspection is necessary to ensure that construction work is properly documented and that future projects within the building are not cited for violations from work performed without permits or inspection.
The temporary relaxation of these rules expires when EO 103 is terminated.
DCA also issued new guidance, which can be found here. This guidance includes guidance for local construction code offices that encourages flexibility in performing their duties. Additionally, for local construction offices that need to close as a result of the COVID-19 virus, the document provides guidance that is consistent with the DCA’s temporary rule relaxation.
The COVID-19 pandemic and its impact on construction projects is constantly evolving, as evidenced by New York’s March 27, 2020 suspension of non-essential construction projects (construction excluding roads, bridges, transit facilities, utilities, hospitals or healthcare facilities, affordable housing, and homeless shelters). For now, New Jersey is permitting projects to proceed and attempting to provide local construction code offices and projects with flexibility to progress work in the event that a local code office is unable to perform its regulatory responsibility as a result of the COVID-19 pandemic. For more information on this evolving issue, please contact Damian Santomauro.
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