April 1, 2020

Lawrence P. Powers, Esq.

NJ DCA Construction Inspection Certifications by NJ Architects

On March 24th, the New Jersey Department of Community Affairs issued a guidance document setting forth the procedure for dealing with ongoing construction projects during COVID-19. 

Update from New Jersey Department of Community Affairs for Ongoing Construction Projects and COVID-19 Issued on March 24, 2020

As a free member benefit, AIA New Jersey has sought our legal counsel’s feedback on the guide. Please see the response of  Lawrence P. Powers, Esq., Co-Chair of the Construction Law Department of Hoagland, Longo, Moran, Dunst & Doukas, LLP.

NJ DCA Construction Inspection Certifications by NJ Architects:

Many members of AIA-NJ have been asking how to interpret the attached NJ DCA memo setting forth a procedure for conducting a C of O inspection.  In particular, architects are asking how to interpret this portion of that memo:

In this unprecedented circumstance, the documentation for a CCO inspection shall, at a minimum, 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.

The way I read it, this DCA memo is a guidance document setting forth the procedure for self-certifying that portion of a CC of O inspection that was not or cannot be conducted by a licensed code official during the Quarantine. In my opinion, this memo could have provided more specific guidance.   For now, however, if you really need to obtain a CC of O and no construction official will come out to do the inspection,  I would meet this requirement to submit for a permanent CC of O by conducting the inspection and preparing and submitting to the local construction official a certification stating:   “I hereby certify that, to the best of my knowledge, information and belief, the following portions of this project has been completed in conformity with the approved permit drawings”.  Then list what you observed in the absence of an inspection by the construction official and submit photos or video to support that opinion.  I would strongly recommend thoroughly documenting what you have observed with pictures, as requested by the DCA in this memo. 

The most obvious question arising from this advice is, “Does this mean I am taking on liability for making this certification?”.  The answer is yes.  Self-certification, of necessity, entails taking on some liability.  You can only certify to the best of your knowledge, information and belief.   If you are not sure, i. e. if you did not see the rough in before it was enclosed, you can’t certify.    You need to make the inspections at the appropriate stage of construction, just like the construction official would.   If you have any question regarding code compliance, tell the owner and contractor that they’ll have to wait for the construction official to make the call before they can continue work.  It is highly likely that an Owner will claim that you delayed the project if you refuse to conduct a requested inspection or fail to advise the Owner that you can make these inspections under the terms of this DCA guidance document.  Accordingly, I strongly suggest making the inspections and thoroughly documenting what you observe.   Owners will undoubtedly use this public health emergency to try to recoup any losses sustained during the Quarantine.  Do not give them any ammunition. 

I am reaching out to the DCA to get better advice on this subject and will advise when I hear back from that office.  Stay safe. 

   Lawrence P. Powers | Co-Chair – Construction Law Department
   Hoagland, Longo, Moran, Dunst & Doukas, LLP
   40 Paterson Street | P.O. Box 480 | New Brunswick, NJ 08903
   T: 732-545-4717 | F: 732-545-4579 | C: 908-392-0940 
   lpowers@hoaglandlongo.com | www.hoaglandlongo.com
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By Stacey Ruhle Kliesch, AIA, AIA NJ Advocacy Consultant | Posted in AIA-NJ News, Business, Disaster Response, Uncategorized | Tagged: #AIANJ, #ConstructionInspections, #COVID19, #LawrencePowersEsq, #LegalAdvice, memberbenefit, NJDCA | Comments (0)