[Adopted 2-6-1995 by Ord. No. 1042-95 (Ch. 135 of the 1975 Code)]
The purpose of this article is to permit property owners or inhabitants of property to make certain necessary repairs to their property which may be accomplished only by obtaining access to an adjoining property. It is the intent of this article to permit the obtaining of a certificate of necessity only after all other reasonable and practical means have been exhausted for the purpose of making repairs, and the Construction Official or such other legally authorized or designated Borough official shall issue such a certificate only when no other alternative means is available for the purpose of making the necessary repairs. The certificate of necessity may be issued by the Construction Official or such other delegated official of the Borough.
A. 
Any owner of property who, pursuant to an order of the Construction Official or such other delegated official, is unable to comply with an order unless access is obtained to adjoining property may, where such access has been denied by the adjoining property owner, apply to the Construction Official for a certificate of necessity. An appropriate application form shall be completed, together with an affidavit, made under oath, evidencing the need for access and that the adjoining property owner has denied such access.
B. 
In the event that a property owner makes an application within 10 days of denial of access by the adjoining owner, the Construction Official may grant an extension of time to comply with the previous order so as to permit the property owner to obtain a certificate of necessity in accordance with the provisions of this article.
C. 
After the application has been filed, the Construction Official shall order the adjoining owner to appear before him on a fixed date for the purpose of showing cause why an order should not be issued so as to permit the applicant to obtain a certificate of necessity for the purpose of securing access in order to comply with the order.
D. 
The notice shall be served personally on the adjoining property owner or by certified mail, return receipt requested, which service shall be made not less than 10 days from the date of the hearing. If mailed, it shall be forwarded to the name of the person or entity owning such land as indicated by the tax assessment records of the Borough and forwarded to the address listed on the tax duplicate. In the event that service cannot be obtained, the Construction Official may publish notice of such hearing in an official newspaper of the Borough, with the cost thereof charged to the applicant seeking the certificate of necessity. Should service be required by publication, the Construction Official may extend the time for compliance with the previously entered order.
A. 
The Construction Official shall afford the adjoining property owner the opportunity to state his or her reasons for opposing the requested access. The adjoining property owner may submit such evidence as such owner may deem appropriate, and the weight to be given thereto shall rest with the sole discretion of the Construction Official.
B. 
Should the certificate of necessity be issued, the Construction Official may impose certain conditions in connection therewith, including time of access, duration and other requirements that the applicant must comply with.
C. 
The applicant shall assume full responsibility for any damage caused in connection with access to the adjoining owner's property. No responsibility shall attach to the Construction Official or his or her designee in connection with the issuance of the certificate.
D. 
The Construction Official shall require the applicant to post a surety bond to be issued by a surety company authorized to do business in the State of New Jersey or a cash bond, provided that such cash bond shall not be in the sum of less than $1,000. In fixing the amount of the bond or cash deposit, the Construction Official shall consider the extent and duration of the repairs, the proximity of the improvements to the adjoining property, applicable building and code requirements and such other issues that may be appropriate based on the facts presented. The bond shall be subject to approval as to form by the Borough Attorney.
E. 
The applicant shall agree to indemnify the Borough and the adjoining property owner from any claim for property damage or personal injury in connection with the certificate of necessity.
Any violation of any of the provisions of this article shall subject the person, upon conviction, to such penalties as are established in Chapter I, Article II, General Penalty, of the Borough Code.