[HISTORY: Adopted by the Mayor and Council
of the Borough of Fanwood 7-12-1989 by Ord. No. 89-08R; amended in its entirety 8-11-2009 by Ord. No.
09-07R. Subsequent amendments noted where applicable.]
A.
It is hereby found and declared that the existence or occupation
of any building or buildings, or parts thereof, in the Borough of
Fanwood ("Borough") which are so old, dilapidated or have become so
out of repair as to be dangerous, unsafe, unsanitary or otherwise
unfit for human habitation, occupancy or use are inimical to the welfare,
and dangerous and injurious to the health and safety, of the residents
of the Borough and that a public necessity exists for the repair,
closing or demolition of such building or buildings or part thereof.
It is hereby found that there may exist in the Borough a building
or buildings which are unfit for human habitation, occupancy or use
due to dilapidation, defects increasing the hazards of fire, accidents
or other calamities, lack of ventilation, light or sanitation facilities,
or due to other conditions rendering such building or buildings, or
part thereof, unsafe or unsanitary, or dangerous or detrimental to
the health or safety or otherwise inimical to the welfare of the residents
of the Borough.
B.
It is further found and declared that the existence of abandoned
properties which are located in close proximity to occupied residences
and businesses may create a wide range of problems including criminal
activity, public health problems, and diminish the property values
of neighboring properties and negatively impact the quality of life
of adjacent property owners.
C.
It is further found that the Borough has the power, pursuant to N.J.S.A.
40:48-2.3 et seq., to exercise its police powers to repair, close
or demolish, or cause or require the repairing, closing or demolition,
of such unfit and/or abandoned buildings, or part thereof, in the
manner herein provided.
Any building or buildings or parts thereof which have been damaged
to such an extent that nothing remains but the walls or parts of the
walls and other supports shall, regardless of the safety and sturdiness
of those remaining walls or parts thereof, be deemed inimical to the
welfare of the residents of the Borough, and the Borough may exercise
its police powers to repair, demolish or cause the repairing or demolishing
of the building or buildings or parts thereof pursuant to N.J.S.A.
40:48-2.3 et seq., and the procedure set forth herein.
The following, whenever used or referred to
in this chapter, unless a different meaning clearly appears from the
context, shall mean:
Any property that has not been legally occupied for six months,
and which also meets any one of the following criteria:
The property is in need of rehabilitation, and no rehabilitation
has taken place for six months;
Construction was initiated and discontinued prior to completion,
and no construction has taken place for six months;
The property is in property tax arrears by at least one installment;
or
The property is determined to be a nuisance by the Public Officer.
Any building or structure or part thereof, whether used for
human habitation or otherwise, and includes any outhouses, and appurtenances
belonging thereto or usually enjoyed therewith.
The holder or holders of the title in fee simple.
All individuals, associations and corporations who have interests
of record in a building and any who are in actual possession thereof.
Any officer who is in charge of any department or branch
of the government of the Borough relating to health, fire, building
regulations or to other activities concerning buildings in the Borough.
The Zoning Officer or such other officer, board or body that
is or are appointed by the Mayor with the consent of the Council to
exercise the powers described herein.
For the purpose of this chapter, the Public
Officer may determine that a building or dwelling is unsafe or unfit
for human habitation or use if the Public Officer finds that conditions
exist in such building or dwelling which are dangerous or injurious
to the health or safety of the occupants of such building or dwelling,
the occupants of neighboring buildings or dwellings or other residents
of the Borough; such conditions may include the following (without
limiting the generality of the foregoing): defects therein increasing
the hazards of fire, accident or other calamities; lack of adequate
ventilation, light or sanitary facilities; dilapidation; disrepair;
structural defects; and uncleanliness.
The Public Officer is hereby authorized and empowered to exercise
such powers as may be necessary or convenient to carry out and effectuate
the purposes and provisions of this chapter, including the following
powers in addition to others herein granted:
A.
To investigate the building or dwelling conditions in the Borough
in order to determine which buildings or dwellings therein are abandoned,
unfit for human habitation, occupancy or use, and therefore constitute
nuisances.
B.
To administer oaths, affirmations, examine witnesses and receive
evidence.
C.
To enter upon premises for the purpose of making examination, provided
that such entries shall be made in such manner as to cause the least
possible inconvenience to the persons in possession.
D.
To appoint and fix the duties of such officers, agents and employees
as the Public Officer deems necessary to carry out the purposes of
this chapter, subject to the approval of the Mayor and Council.
E.
To delegate any of the Public Officer's functions and powers
under this chapter to such officers and agents as he or she may designate.
Pursuant to N.J.S.A. 40:49-5.1 et seq., the
New Jersey State Housing Code approved by the Department of Community
Affairs (N.J.A.C. 5:28-1.1), the State Uniform Construction Code (N.J.S.A.
52:27D-119 et seq.) and the State Uniform Fire Safety Act (N.J.S.A.
52:27D-192 et seq.), and any rules or regulations adopted thereunder,
are hereby accepted, adopted and established as standards to be used
as guides in determining the fitness of a building for human habitation,
occupancy or use. A copy of these codes are made a part of this chapter,
and three copies thereof have been placed on file in the office of
the Borough Clerk and will remain on file there for the use and examination
of the public.
Whenever a petition is filed with the Public
Officer by a public authority, or by at least five residents of the
Borough, charging that any building or dwelling is unfit for human
habitation, occupancy or use, or whenever it appears to the Public
Officer on his or her own motion that any building or dwelling is
unfit for human habitation, occupancy or use or that any building
or dwelling is dangerous or unsafe, the Public Officer shall, if his
or her preliminary investigation discloses a basis for such charges,
issue and cause to be served upon the owner of, and parties in interest
in, such building or dwelling a complaint stating the charges in that
respect and containing a notice that hearing will be held before the
Public Officer, or designated agent, at a place therein fixed not
less than seven days nor more than 30 days after the service of said
complaint; that the owner and parties in interest shall be given the
right to file an answer to the complaint and to appear in person,
or otherwise, and give testimony at the place and time fixed in the
complaint; and that the rules of evidence prevailing in the courts
shall not be controlling in hearings before the Public Officer.
A.
If, after such notice and hearing, the Public Officer
determines that the building or dwelling under consideration is unfit
for human habitation, occupancy or use, or is dangerous or unsafe,
the Public Officer shall state, in writing, his or her findings of
fact in support of such determination and shall issue and cause to
be served upon the owner thereof and parties in interest an order
requiring the repair, alteration or improvement of said building or
dwelling to be made by the owner within a reasonable time, which time
shall be set forth in the order or, at the option of the owner, to
vacate or have the said building or dwelling vacated and closed within
the time set forth in the order.
B.
If the building is in such a condition as to make
it dangerous to the health and safety of persons on or near the premises
and the owner fails to repair, alter or improve said building within
the time specified in the order, then the owner may be required to
remove or demolish said building or dwelling within a reasonable time
as specified in said order of removal.
C.
If the owner fails to comply with an order to repair,
alter or improve or, at the option of the owner, to vacate and close
the building or dwelling, the Public Officer may cause such building
to be repaired, altered or improved or to be vacated and closed; the
Public Officer may cause to be posted, on the main entrance of any
building or dwelling so closed, a placard with the following words:
"This building or dwelling is unfit for human habitation, occupancy
or use; the use or occupation of this building or dwelling is prohibited
and unlawful."
D.
If the owner fails to comply with an order to remove
or demolish the building or dwelling, the Public Officer may cause
such building or dwelling to be removed or demolished or may contract
for the removal or demolition thereof after advertisement for, and
receipt of, bids therefor.
E.
If the owner fails to comply with an order to repair,
alter or improve, the Public Officer may appoint a custodian of such
building or dwelling on behalf of the Borough, who may be either an
official of the Borough or any other person specially designated to
enter into and take charge of the premises and supervise abatement
of the nuisance, the correction of the defective condition or the
maintenance of the premises in a proper condition so as to conform
to the requirements of the Borough Code and state laws applicable
thereto; compensation of the custodian, which shall be part of the
expenses provided for below, shall be at a rate to be established
by resolution of the Mayor and Council but in no event more than $100
per day.
F.
If the owner violates this chapter or fails to abate
a condition harmful to the health and safety of the occupants of the
building or dwelling and the general public in the Borough after notice
and opportunity so to do, the Public Officer may, by and with the
approval of the Mayor and Council, bring an action in the Superior
Court to be appointed receiver ex officio of the rents and income
in the manner described in N.J.S.A. 40:48-2.12h through 40:48-2.12k.[1]
[1]
Editor's Note: N.J.S.A. 40:48-2.12h through 40:48-2.12l were
repealed by L. 2003, c. 295, § 32, effective 7-12-2004.
G.
The amount of the cost of the filing of legal papers,
expert witnesses' fees, search fees and advertising charges incurred
in the course of any proceeding taken under this chapter determined
in favor of the Borough and the cost of repairs, alterations or improvements,
or vacating and closing, or removal or demolitions, if any, or the
amount of the balance thereof remaining after deduction of the sum,
if any, realized from the sale of materials derived from such building
or dwelling or from any contract for removal or demolition thereof,
including the clearance and, if necessary, leveling of the site shall
be a municipal lien against the real property upon which such costs
were incurred. If the building or dwelling is removed or demolished
by order of the Public Officer, he or she shall sell the materials
of such building or dwelling. There shall be credited against the
cost of the removal or demolition thereof the proceeds of any sale
of such materials or any such derived from any contract for the removal
or demolition of the building. If there are no such credits or if
the sum total of such costs exceeds the total of such credits, a detailed
statement of the aforesaid costs and the amount so due shall be filed
with the Borough Tax Assessor and the Borough Tax Collector, and a
copy thereof shall be forthwith forwarded to the owner by registered
or certified mail. If the total of the credits exceeds such costs,
the balance remaining shall be deposited in the Superior Court by
the Public Officer and shall be disbursed according to the order of
judgment of the Court to the persons found to be entitled thereto
by final order of judgment of such court; any owner or party in interest
may, within 30 days from the date of the filing of the lien certificate,
proceed in summary manner in the Superior Court to contest the reasonableness
of the amount or the accuracy of the costs set forth in the municipal
lien certificate.
If an actual and immediate danger to life is posed by the threatened
collapse of any fire-damaged or other structurally unsafe or abandoned
building or dwelling, the Public Officer may, after taking such measures
as may be necessary to make such building or dwelling temporarily
safe, seek a judgment in summary proceedings for the demolition thereof.
Nothing herein shall be construed to impair or limit in any way the
power of the Borough to define and declare nuisances and to cause
their removal or abatement, by summary proceedings or otherwise, nor
is anything in this chapter intended to limit the authority of the
enforcing agency or Construction Official under the State Uniform
Construction Code, N.J.S.A. 52:27D-119 et seq., the State Uniform
Fire Safety Act, N.J.S.A. 52:27D-192 et seq., or any rules or regulations
adopted thereunder.
Any building or buildings, or parts thereof, which have come
into a state of disrepair through neglect, lack of maintenance or
use, abandonment, fire, accident or other calamities, or through any
other act rendering the building or buildings, or parts thereof, in
a state of disrepair, to the extent that the building is unfit for
human habitation or occupancy or use, shall be deemed inimical to
the welfare of the residents of the Borough, and the Construction
Official may exercise his/her powers to repair, demolish, or cause
the repairing or demolition of the building or buildings, or parts
thereof.
Complaints or orders issued by the Public Officer
pursuant to this chapter shall be served upon persons either personally
or by registered or certified mail, but if the whereabouts of such
persons are unknown and the same cannot be ascertained by the Public
Officer in the exercise of reasonable diligence, and the Public Officer
shall make an affidavit to that effect, then the serving of such complaint
or order upon such persons may be made by publishing the same once
in a newspaper printed and published in the County of Union and circulating
in the Borough. A copy of such complaint or order shall be posted
in a conspicuous place on premises affected by the complaint or order,
and a copy shall be recorded or lodged for record with the Register
of Union County.
The Public Officer shall establish and maintain a list of abandoned
properties located in the Borough, to be known as the "Abandoned Property
List." The Public Officer may delete properties at any time when the
Public Officer finds that the property no longer meets the definition
of "abandoned property." Abandoned property shall not be included
on the list if rehabilitation is being performed in a timely manner,
as evidenced by building permits issued and diligent pursuit of rehabilitation
work authorized by those permits. A determination that property should
be placed on said list shall also designate the property as a nuisance.
The Public Officer, within 10 days of the establishment of the
Abandoned Property List, or any additions thereto, shall send a notice,
by certified mail, return receipt requested, and by regular mail to
the owner of record of every property included on the list, and shall
cause the list to be published in one of the official newspapers of
the Borough. Said publication shall constitute public notice. The
published and mailed notices shall identify property determined to
be abandoned, and therefore a nuisance, setting forth the owner of
record, if known, the tax lot and block number and street address.
The Public Officer, in consultation with the Borough Tax Collector,
shall also send notice by regular mail to any mortgage, servicing
organization, or property tax processing organization that receives
a duplicate copy of the tax bill pursuant to N.J.S.A. 54:4-64. When
the owner of record is not known for a particular property and cannot
be ascertained by the exercise of reasonable diligence by the Tax
Collector, notice shall not be mailed, but instead shall be posted
on the property in the manner provided in N.J.S.A. 40:48-2.7. The
mailed notice shall indicate the factual basis for the Public Officer's
finding that the property is abandoned, specifying the information
relied upon in making such finding. A copy of the mailed or posted
notice shall also be filed by the Public Officer in the office of
the Union County Clerk. This filing shall have the same force and
effect as a notice of lis pendens under N.J.S.A. 2A:15-6. The notice
shall be indexed by the name of the property owner as defendant and
the name of the Borough as plaintiff, as though an action had been
commenced by the Borough against the owner.
The Public Officer shall provide a report to the Mayor and Council
every six (6) months, with respect to the number and location of properties
on the Abandoned Property List, the status of those properties and
any actions taken by the Borough or by any qualified rehabilitation
entity designated pursuant to the authority granted to the Public
Officer with respect to any property on the Abandoned Property List
or any other abandoned property within the Borough.
An owner or lienholder may challenge the inclusion of the owner's
property on the Abandoned Property List by appealing the determination
to the Public Officer within 30 days of the owner's receipt of
the certified notice or 40 days from the date upon which the notice
was sent. An owner whose identity was not known to the Public Officer
shall have 40 days from the date upon which notice was published or
posted, whichever is later, to challenge the inclusion of a property
on the Abandoned Property List. The Public Officer shall schedule
a hearing for determination of the appeal within 30 days after the
receipt of the appeal. Any property included on the list shall be
presumed to be abandoned unless the owner submits an affidavit or
certification setting forth the reasons that the property is not abandoned.
The affidavit or certification shall include supporting documentation,
including but not limited to photographs, repair invoices, bills and
construction contracts. The Public Officer shall make a decision on
a timely filed appeal within 10 days after the hearing on the appeal,
and shall promptly notify the property owner of the decision by certified
mail, return receipt requested, and by regular mail.
Any person aggrieved by an order issued by the
Public Officer under this chapter may, within 30 days after the posting
and service of such order, bring an action for injunctive relief to
restrain the Public Officer from carrying out the provisions of the
order and for any other appropriate relief. The Court may proceed
in the action in summary manner or otherwise. The remedy herein provided
shall be exclusive, and no person affected by an order of the Public
Officer shall be entitled to recover any damages for action taken
pursuant thereto or because of noncompliance by any person with any
order of the Public Officer.
The property owner may challenge an adverse determination of
an appeal by instituting a summary proceeding, in accordance with
the New Jersey Court Rules of Civil Procedure, in the Superior Court,
Law Division, Union County, which action shall be tried de novo. Such
action must be instituted within 20 days after the date of the notice
of decision mailed by the Public Officer. The failure to institute
an appeal on a timely basis shall constitute a jurisdictional bar
to challenging the adverse determination, except that, for good cause
shown, the Court may extend the deadline for instituting the action.
A.
The Public Officer shall promptly remove any property from the Abandoned
Property List that has been determined not to be abandoned on appeal.
B.
If a property, which an entity other than the Borough has purchased
or taken assignment from the Borough of a tax sale certificate, is
placed on the Abandoned Property List, the property shall be removed
from the list if the owner of the certificate pays all municipal taxes
and liens due on the property within 30 days after the property is
placed on the list; provided, however, that if the owner of the certificate
fails to initiate a foreclosure proceeding within six months after
the property was first placed on the list, the property shall be restored
to the Abandoned Property List.
Any interested party may submit, in writing, a request to the
Public Officer that a property be included on the Abandoned Property
List, specifying the street address and block and lot number of the
grounds for its inclusion. The Public Officer shall provide a written
response to the interested party within 30 days after receipt of such
request, indicating whether or not the property will be included on
the list.
A.
If a property is on the Abandoned Property List and either no appeal
is taken or the appeal is denied, a summary action, including such
rights as set forth in N.J.S.A. 55:19-85 and 55:19-86, may be filed
by the Borough in the Superior Court, Union County, to transfer possession
and control of property in need of rehabilitation to the Borough.
If the Court determines that the property is abandoned pursuant to
N.J.S.A. 55:19-81 and the owner or party in interest has failed to
submit and initiate a rehabilitation plan in accordance with N.J.S.A.
55:19-78 et seq., then the Borough may take possession and control
of the property and develop a rehabilitation plan in accordance with
the direction of the Court.
B.
If the Borough is granted possession and control, it may commence
and maintain further proceedings to conserve, protect or dispense
the property or any part thereof which is required to rehabilitate
the property, necessary to recoup the cost and expenses of rehabilitation
and for the sale of the property; subject to the Court entering an
order to the contrary if the owner applies for reinstatement of control
of the property and it is granted.
C.
Prima facie evidence of the owner's failure to take action shall
be as set forth in N.J.S.A. 55:19-84.
D.
If the Borough is successful in its summary action, a mortgage or
lienholder may seek to be designated in possession of the property
in accordance with N.J.S.A. 55:19-88 and 55:19-89.
E.
If the Borough obtains control or possession of the property, the
Borough or its designee may proceed in accordance with N.J.S.A. 55:19-90.
F.
The Borough may exercise any and all rights set forth in N.J.S.A.
55:19-78 et seq.
G.
If the owner of the property fails to petition for reinstatement
of control and possession within 30 days, after the filing of a notice
of completion, within two years after initial granting of possession
and control, or if the owner fails to meet any conditions set out
by the Court, the Court may grant the Borough title to the property
or the right to sell the property, subject to N.J.S.A. 55:19-96 and
55:19-97.
[Amended 3-1-2011 by Ord. No. 11-05R]
A.
As it
relates to abandoned property, the Public Officer, with the approval
of the Court, may place a lien on the abandoned property to cover
any costs incurred by the Borough in connection with a proceeding,
pursuant to N.J.S.A. 55:19-78 et seq.
B.
As it relates to unfit buildings, the Borough may, by resolution, move to abate a nuisance, correct a defect, or put property determined to be unfit, all pursuant to this chapter, in proper condition so as to comply with the requirements of this Chapter 137 at the cost of the owner or lessor of said property, and expend Borough funds for such purpose and charge the same against the property, and the amount thereof as determined by the Mayor and Council shall be a lien against said property and collectable as provided by New Jersey law.
The Borough may hold special tax sales with respect to such
abandoned properties, subject to N.J.S.A. 55:19-101.
The Mayor and Council shall prepare an estimate
of the annual expenses or costs to provide the equipment, personnel
and supplies necessary for periodic examinations and investigations
of the buildings or dwellings in the Borough for the purpose of determining
the fitness of such buildings or dwellings for human habitation, occupancy
or use, and the enforcement and administration of this chapter, and
shall authorize such appropriation from its revenues as it may deem
necessary for this purpose and may accept and apply grants or donations
to assist it in carrying out the provisions of this chapter.
Nothing in this chapter shall be construed to
abrogate or impair the powers of the courts or any department of the
Borough to enforce any provisions of its charter, ordinances, Code
or regulations, nor to prevent or punish violations thereof, and the
powers conferred by this chapter shall be in addition and supplemental
to the powers conferred by any other law.
Any person, firm or corporation violating any
of the provisions of this chapter shall, upon conviction, be subject
to a fine not to exceed $2,000 or to imprisonment for a period not
to exceed 90 days, or both. Each violation of any of the provisions
of this chapter and each day the same shall continue to be violated
shall constitute a separate, distinct offense.
