Editor’s note: The following is a report by Neptune Township Attorney Gene Anthony on the subject of derelict houses.
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Dear Committeeperson Jahn:
Per your request, this letter will serve as a summary of the procedures that have been followed by the Township of Neptune in prosecuting derelict houses within the Township.
There are a number of statutes and ordinances that apply to different situations. Locally, most of the Township’s problems with houses that are in disrepair fall under the Property Maintenance Ordinance, which is Chapter XII of the Code of the Township of Neptune. The Property Maintenance Ordinance is based on the BOCA National Property Maintenance Code of 1996. I might add that many towns are following a more up to date National Property Maintenance Code, now known as an International Property Maintenance Code, but even in reviewing the more up to date Code, as in the Borough of Eatontown, I do not see significant changes.
Procedurally, whenever the Code Enforcement Department is alerted to a property maintenance issue, they inspect the property and, through the National Property Maintenance Code, have a list of typical property maintenance items that need to be addressed with regards to any house. They may include painting issues, dry rot, broken windows, etc. Most of the time the Code Enforcement Officer will actually talk to the property owner if they are available to tell them there is a problem and possible violation of property maintenance to give the property owner an opportunity to address the problems.
In any case, if there is a property maintenance problem that is not addressed by the property owner, a Notice of Violation is issued indicating all of the property maintenance problems that need to be addressed and a time schedule for the property owner to address those issues. If the property owner does not correct the defects noted in the Notice of Violation, then a Summons and Complaint is issued for a Municipal Court hearing.
I do not know what was done before I was the municipal attorney, but a strict reading of Chapter XII, with regards to relief that may be sought, would appear to allow the Judge only two (2) options in the case of a conviction of violation of a Property Maintenance Code. First, the Court can remove the owner from the property and/or fine him not less than $100.00, no more than $1,000.00 or imprisonment for a term not to exceed ninety (90) days or any combination thereof at the discretion of the Court. Each day that a violation continues after due notice has been served shall be deemed a separate violation.
Option #2 under the ordinance is that the Code Official seeks the municipality to contract out to a private company to close the structure of the building or remove or clean or, in essence, correct the violations and place a lien on the real estate.
The problem with these two remedies is that the one remedy does not correct the problem and the second one requires the Township to go into the construction business. My approach has been to seek a third remedy, which is not spelled out in the Property Maintenance Code but appears to be acceptable to the Court.
First of all, I do not follow the fine limitations of the Property Maintenance Code but rather the fine limitations of the General Code of Ordinances that the Township has that now allows for fines of up to $2,500.00 per violation. Undoubtedly, the Township should probably amend the Property Maintenance Code to correspond with the Township’s general penalties.
Second of all, I try to get the property owner to plead guilty to the offense and enter into a plea agreement in which I generally fine the owner at least $2,500.00 and not the $1,000.00 that appears to be the limitation in the ordinance under property maintenance. In addition, I require, as part of the plea agreement, that the owner repair, correct, or demolish the subject property, of course subject to HPC approval, where necessary in Ocean Grove. A reasonable time schedule is established for the correction or demolition. In order to encourage the owner to agree to the plea agreement, I suspend a portion of the fine subject to compliance with the plea agreement as to repairs or demolition. If, for example, I suspend $750.00 and the property owner fails to meet the time schedule for repair or demolition, then I file a Motion for Enforcement and the Court automatically fines the property owner $750.00 in addition to that which has already been paid, along with Court costs. I also advise the Code Enforcement Officer to issue new violations that may result in additional fines and penalties. The Court has found this procedure to be acceptable.
Knowing Judge Wernik, it is highly unlikely that she would impose a sentence in incarceration and I do not think the Township wants to spend the money for rehabbing all of the houses that are in disrepair. I would also note that in many cases, removing the property owner from the house would be a moot point, since most of the cases I seem to have in Court involve absentee property owners in the first place.
A second area of procedure has to do with the Maintenance Code of the Township of Neptune, Section 11-3 entitled, “Dangerous Buildings or Structures”. That portion of the local ordinances, in cases where a building may become so unsafe and dangerous to life or health that it needs to be demolished, a Notice of Dangerous Building can be submitted to the property owner with a hearing scheduled before the Township Committee to determine how dangerous the building is. This, as you are aware, is a drastic remedy. The classic case is The Sampler.
In such a case the Township needs to have all their sub-code officials involved, but especially those within the area of fire, to determine whether or not there is a fire hazard, as well as construction to determine whether or not the building is in imminent danger of collapse. In some cases, the building may not be in imminent danger of collapse but may still pose a severe hazard of fire. This procedure does not go before the Municipal Court but rather the Mayor and Township Committee. Actual demolition, as in the case of The Sampler, allows the Township to place a lien on the property for the cost of demolition.
A similar third procedure is to follow the State Statute and, in particular, the Administrative Code N.J.A.C. 5:23-2.32 entitled, “Unsafe Structures”. The aforesaid State regulation allows for the demolition of property in emergency circumstances. Although I have never used this procedure in Neptune, I have successfully used it in the Borough of Eatontown. It usually requires evidence that the property is in imminent danger of collapse. The Statute and Rules and Regulations also require a hearing before the governing body and N.J.A.C. 5:23-2.32(B) 5 allows the municipality to make emergency repairs and to stabilize the property or to authorize its demolition if there is proof of imminent danger of collapse. Usually, in this case you need to have the Construction Code Official and, preferably, the Township engineer, who has expertise in structural engineering, to make the determination necessary to win the case. Once accomplished, N.J.S.A. 40:48-1.1 allows for the municipality to place a judgment lien on the property for the cost of repairs and/or demolition.
The last two procedures involving demolition are drastic procedures and are easily subject to a lawsuit by the property owner for injunctive relief in the Superior Court. However, I have been successful in Neptune and in other towns in following these procedures, where needed.
In terms of fire safety, there is a separate procedure that is generally undertaken by the Fire Marshall or Fire Commissioners where there is purely a Fire Code violation. The Fire Marshall or Fire Sub-code Official determines whether or not the State Fire Code is in violation in terms of any of the major conditions laid out in the Administrative Code for maintaining a certain use for a certain building. Some buildings must have a fire suppression system and/or an electronically controlled alarm system while other buildings are limited to fire walls, smoke detectors and carbon monoxide detectors. Except for single-family homes, most of the other uses may be subject to annual or six month inspections.
Single-family homes are only subject to inspection when seeking a Certificate of Occupancy. When violations are determined, the Fire Code Official issues a Notice of Violation and if not corrected, an Order to Pay Fines on the prior Notice of Violation. All of these notices are subject to appeal to the Monmouth County Construction Board of Appeals. If no action is further taken, then the Fire Commissioners can file a Complaint in the Superior Court of New Jersey under State Statute to force payment of fines and correction of the violations. This is what is presently going on with the Parkview Hotel, separate from other actions taken by the Township.
Separate from the aforesaid procedures, there are procedures that may be taken by the Construction Code Official with regards to construction, which may touch upon the question of derelict houses. For example, all construction requires a construction permit and, in many cases, the Township’s Construction Code Official will catch a property owner in illegal construction work. In such a case, a Notice of Violation is issued and if the property owner or contractor does not correct the situation and obtain a building permit an Order of Violation and Penalty is issued. Generally, the property owner or contractor must appeal the first Notice of Violation to the Construction Board of Appeals or forever be barred from objecting to the violation.
However, in one action that we had before the Municipal Court in enforcing the Order of Violation and Penalties, Judge Wernik required a re-hearing of the matter, despite her authority to not hear the merits of their case but merely to require a payment of penalties. She ultimately, after trial, decided in favor of the Township, which is now subject to appeal in the Superior Court of New Jersey Appellate Division.
In the area of zoning, the Zoning Officer follows a similar procedure as the Property Maintenance Code Enforcement Officers. If there is a zoning violation a Notice of Violation is issued to the property owner. The property owner has the right to appeal before the Zoning Board of Adjustment. If such an appeal is not taken and the zoning situation not corrected, a Complaint and Summons is issued and the matter is heard before Municipal Court. Often, under the Zoning Code, since the remedies are limited to fines, a plea agreement is entered into whereby the property owner pleads guilty and is issued a large fine, such as $2,500.00 of which a portion is suspended subject to his making an application before the Zoning Board of Adjustment or correcting the zoning violation. This has been successful, for the most part, in correcting zoning violations although several cases have led to further litigation, which includes the Rojas matter.
The aforesaid are the major procedures that take place in enforcing various ordinances and statutes that involve derelict houses. In some cases, multi-procedures are followed at the same time. The Sampler is a prime example where action was taken on a number of fronts, including construction, zoning and property maintenance. The same was true with the Parkview Hotel.
There has been some consideration with regards to Historic Preservation Commission ordinance as to the possibility that the aforesaid ordinance allows for action for demolition through the HPC. Although there is some language that would indicate some ability to demolish buildings through the HPC ordinance, the Construction Code Official, William Doolittle, feels generally uncomfortable using that ordinance as a vehicle for action.
Should you have any further questions concerning procedures for addressing derelict houses, please do not hesitate to contact me.
Very truly yours,
Gene J. Anthony, Esq.
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