By Sydney Shaw
Before a homeowner association can begin a new project, whether it’s clearing land for a parking lot or building a bridge over a stream on the property, it must obtain the proper permits from various governing bodies.
A permit is essentially permission to carry out an act that is regulated in some way through building codes, environmental laws, or any other regulations that are in effect. These regulations are generally put into place to ensure that whatever facility is being constructed or modified, does so in compliance with safe practices, and to protect humans and the environment near the construction site.
Obtaining a permit can be expensive. Even a small soil erosion permit might cost several thousand dollars just for the fee. But failing to secure necessary permits before a project begins can leave boards with an even bigger price to pay — literally and figuratively — to federal, state and local agencies.
“The ramifications are generally large fines,” said Charles Witczak of Witczak Engineering in Brick, New Jersey. “There could be criminal prosecution in some cases. And they will, in some cases, make you remove the facility, even if it was done in accordance with what you thought was right. If they didn’t get a chance to inspect it, they can make you remove the work and get the permit to do it over again.”
Witczak said it can be tricky for associations to know exactly what permits they need to obtain in order to properly begin a project. One association might hire a contractor who promises to get all the necessary permits. Another association might get the approval from their municipality to build. But there still might be permits required by other regulatory agencies that were overlooked.
“You really don’t know unless you have a professional look at it,” Witczak said. “You need an engineer to really evaluate that.”
He emphasized that the onus is on the property owner to make sure their projects aren’t in violation of any regulations, so there’s nobody a homeowner association can blame if they didn’t obtain the proper permits before they start building.
“The responsibility lies with the owner,” Witczak said. “There is no ability to say, ‘No, I wasn’t aware of it.’”
The New Jersey Department of Environmental Protection (DEP) requires property owners to obtain permits for projects that might interfere with protected wetlands or floodplains. There are also permits that exist to manage things like soil erosion and storm drainage. Even a seemingly innocuous building project might have catastrophic effects on the local environment, and on a homeowner association that fails to secure permission for a build will be responsible.
“You can innocently go into a stream on your property and just remove trees that may have fallen down, but that’s not allowed without the proper permission,” Witczak said. “Theoretically, those trees that block the stream are holding back water that prevents damage to downstream properties.”
Constructing anything near water or wetlands of any kind will usually require permits from the DEP, Witczak said. Even municipalities themselves aren’t exempt from having to secure permits.
“When it comes to these state-mandated type of activities, no one is safe. If you do something wrong, they’re going to come after you,” Witczak said.
He recalled a municipality that decided to have their public works staff install a little footbridge over a narrow stream in town. It didn’t seem like a big deal at the time, but the township didn’t realize the stream was in a regulated area that was controlled by a DEP floodplain management program.
“When the DEP found out about it, they were not happy, to say the least,” Witczak said. The municipality had to remove the bridge and the project resulted in several hundreds of thousands of dollars in fines when all was said and done.
State and federal regulations aren’t the only barriers to homeowner associations looking to quickly launch into a new construction project. Depending on the project, a homeowner association might need to carefully look at township zoning regulations and present its plans at a planning board meeting. Anybody who lives within 200 feet of the property gets notice of the meeting, and anybody else is welcome to attend to ask questions or voice concerns about the project.
This process typically requires an attorney, as well as an engineer to present the outline of the testimony regarding exactly what the project will involve. In addition to permit costs, attorney and engineer fees are other costs homeowner associations must account for when budgeting a new construction project.
“You sometimes have those crazy meetings where there’s a lot of outcry,” Witczak said. Many of the problems that arise during a construction project are actually due to local residents who oppose the project, or otherwise don’t understand the process.
Say a township approves a project, the construction is completed and then, years later, it comes to light that the homeowner association did not obtain another permit that was necessary. There isn’t necessarily a statute of limitations on permit violations, Witczak said, so a board might have to pay up or even tear up the facility years later, depending on how everything plays out.
In fact, Witczak said officials will sometimes retroactively go in after the rules have changed to try to remove a facility. Even though the construction may have been completed in accordance with the regulations in effect at that time, the investigating officials will hold the owner to the rules that are in effect when they discover the unpermitted activity, which will typically be more stringent. To protect itself, a homeowner association should keep any documents relating to permits and projects. Engineering companies are required to hold onto their clients’ permits and documents for seven years if they need to refer to them. But it’s a good idea for boards to have their own copies of any plans or permits they secured for a project. He recommends having electronic versions, as well.
Laws, codes and other regulations are changing all the time. Just because you didn’t need a permit for a project three months ago doesn’t mean you don’t need one now, Witczak said, which makes it all the more important for homeowner associations to hire a professional engineer to evaluate the property ahead of any construction.