NEW JERSEY REGISTER
VOLUME 36, NUMBER 15
MONDAY, AUGUST 2, 2004
RULE PROPOSAL

LAW AND PUBLIC SAFETY
DIVISION OF CONSUMER AFFAIRS
STATE BOARD OF PROFESSIONAL ENGINEERS AND LAND SURVEYORS
CORNER MARKERS

Proposed Amendments: N.J.A.C. 13:40-3.1 and 5.1

Proposed New Rule: N.J.A.C. 13:40-5.2

Authorized By: State Board of Professional Engineers and Land Surveyors, Arthur Russo, Executive Director.

Authority: N.J.S.A. 45:8-27 et seq., specifically 45:8-29; 45:8-71; and 45:8- 36.3.
Calendar Reference: See Summary below for explanation of exception to calendar requirement.
Proposal Number: PRN 2004-292.

Submit written comments by October 1, 2004 to:

Arthur Russo, Executive Director

State Board of Professional Engineers and Land Surveyors

PO Box 45015

Newark, NJ 07101

The agency proposal follows:

Summary

On September 17, 2001, the State Board of Professional Engineers and Land Surveyors (the Board) published in the New Jersey Register at 33 N.J.R. 3241(a) proposed amendments to N.J.A.C. 13:40-1.1, 1.2, 1.3, 5.1, 11.3 and 11.8 regarding title blocks and seals, preparation of land surveys, and continuing competency. On April 18, 2002, the Board decided not to adopt, but leave pending, the proposed amendment to N.J.A.C. 13:40-5.1(d), which would delete the waiver of corner markers provision, due to the number of comments received. The Board had intended in that proposal to eliminate the option to waive the placing of corner markers and, instead, to require by amending the rule that corner markers must be placed when performing land surveys. The Board held a public hearing on May 22, 2002, on this matter. Upon the recommendation of the hearing officer, the Board voted to adopt the amendment on June 20, 2002. The adoption was published in the New Jersey Register on February 3, 2003, at 35 N.J.R. 618(a). Prior to the effective date of the rule change, however, on January 29, 2003, Governor McGreevey signed P.L. 2003, c.14 (N.J.S.A. 45:8- 36.3) which essentially suspended the Board's adoption of the amendment and reinstated the corner marker waiver.

Pursuant to its general rulemaking authority, N.J.S.A. 45:8-29, the Board is proposing amendments to N.J.A.C. 13:40-3.1 and 5.1 and is proposing new rule N.J.A.C. 13:40-5.2 to address the legislative enactment and establish standards for the setting of corner markers.

The proposed amendment to N.J.A.C. 13:40-3.1 establishes that if a land surveyor fails to comply with the manner in which corner marker waivers are to be obtained pursuant to the requirements of amended N.J.A.C. 13:40-5.1(d) or proposed new rule N.J.A.C. 13:40-5.2, such failure will constitute misconduct in the practice of land surveying.

The current provisions of N.J.A.C. 13:40-5.1(d) require that corner markers be set as part of a land survey. The proposed amendment to N.J.A.C. 13:40-5.1(d) states that a licensed land surveyor is not required to set such corner markers if a written waiver is obtained. The rule is also amended to establish a fine of not more than $2,500 per violation.

Proposed new rule N.J.A.C. 13:40-5.2 establishes the requirements for obtaining the waiver of the setting of corner markers. Subsection (a) defines the ultimate user as the contract purchaser of the property. If there is no purchaser, the ultimate user is the owner of the property. In cases where there are multiple ultimate users, such as married couples, partnerships, etc., only one ultimate user is required to sign the waiver.

Subsection (b) sets forth the requirements for a land surveyor when the ultimate user waives the use of corner markers. The land surveyor is required to advise the ultimate user in writing of the impact of signing the waiver which may include the possible need for a survey in the future and the potential inability of the ultimate user to identify the actual boundary of the property. The land surveyor must also review the waiver to ensure that it was properly signed by the ultimate user and by a witness. The witness cannot be a land surveyor. In addition, the land surveyor is required to perform a physical measurement of the property.

Subsection (c) contains the required form of the corner marker waiver.

Subsection (d) requires that whenever a written waiver is obtained, a specific notation must be placed on the plat or plan of survey.

Subsection (e) requires a land surveyor to maintain the signed waiver for a minimum of six years.

Subsection (f) requires a licensee to submit documentation of any waiver to the Board upon its request.

Subsection (g) reserves the authority to perform a periodic review of a licensee's records to the Board to determine compliance with this section.

Subsection (h) states that the failure to comply with the provisions of this section is professional misconduct and any violation of subsection (d) or (e) is subject to a monetary penalty of up to $2,500 per violation.

The Board has determined that the comment period for this proposal shall be 60 days; therefore, pursuant to N.J.A.C. 1:30-3.3(a)5, this proposal is excepted from the rulemaking calendar requirement.

Social Impact

The Board believes that the proposed amendments to N.J.A.C. 13:40-3.1 and 5.1 and proposed new rule N.J.A.C. 13:40-5.2 will have a beneficial impact on the ultimate user of a property and on licensed land surveyors. The proposed amendments and the proposed new rule clearly set forth the process to obtain a waiver of corner markers by the ultimate user. The licensed land surveyor will be required to advise the ultimate user of the impact of signing the waiver, review the waiver to ensure that it was properly executed and perform a physical measurement of the property. The signing of the waiver by the ultimate user will have to be witnessed to ensure that the ultimate user's signature is genuine. The Board believes that these provisions will ensure that when an ultimate user signs the waiver and forgoes the setting of corner markers, the person will fully understand the impact of the decision and its consequences. The Board believes that the proposed amendment to N.J.A.C. 13:40-5.1(d), which states that a licensee has committed professional misconduct if the licensee fails to obtain the waiver when corner markers are not set and is subject to a fine of not more than $2,500 for any violation of this subsection, and N.J.A.C. 13:40-5.2(h), which states that the failure to comply with the proposed new rule will be deemed professional misconduct with a maximum fine of $2,500 for each violation of subsection (d) or (e), will ensure that licensees will comply with the new requirements to the benefit of consumers. The Board believes that ultimate users and licensees will benefit from the proposed amendments and the proposed new rule because those who fully comply will be protected by ensuring that ultimate users receive adequate information when waiving the corner markers on their property.

Economic Impact

A licensed land surveyor who does not properly set corner markers, does not obtain a waiver when corner markers are not set, fails to make the required notation on the waiver or fails to maintain the waiver for at least six years will be subject to a fine of not more than $2,500. Additionally, a licensed land surveyor who does not comply with the provisions of amended N.J.A.C. 13:40-5.1(d) or proposed new rule N.J.A.C. 13:40-5.2 will have committed professional misconduct which may result in fines. Licensees may incur some minimal costs associated with the production, transmission and retention of waiver forms. Any economic impact on consumers and licensees from the general requirement that land surveyors place corner markers unless a written waiver is executed is a result of the enactment of P.L. 2003, c.14, and not these rules.

Federal Standards Statement

A Federal standards analysis is not required because there are no Federal standards or requirements applicable to the proposed amendments and new rule.

Jobs Impact

The Board does not believe that the proposed amendment and new rule will either increase or decrease jobs in the State.

Agriculture Industry Impact

The proposed amendments and new rule will have no impact on the agriculture industry in the State.

Regulatory Flexibility Analysis

The Regulatory Flexibility Act (the Act), N.J.S.A. 52:14B-16 et seq., requires the Board to give a description of the types and an estimate of the number of small businesses to which the proposed amendments and new rule will apply. If, for the purposes of the Act, the approximately 1,076 licensed land surveyors are considered "small businesses" within the meaning of the Act, then the following analysis applies.

The Act requires the Board to set forth the reporting, recordkeeping, and other compliance requirements of the proposed amendments and new rule including the kinds of professional services likely to be needed to comply with the requirements. The Act further requires the Board to estimate the initial and annual compliance costs, outline the manner in which it has designed the rules to minimize any adverse economic impact upon small businesses, and to set forth whether the amendments and new rule establish differing compliance requirements for small businesses.

The proposed amendments and new rule do not contain any reporting requirements. Proposed new N.J.A.C. 13:40-5.2(e) establishes a recordkeeping requirement for licensees to maintain the signed corner marker waiver for a minimum of six years. The new rule also contains numerous compliance requirements regarding provision of the written waiver which have been described in the Summary above.

Costs of compliance are discussed in the Economic Impact above. The Board believes that no professional services will be needed to comply with the amendments and new rule. In order to ensure that all corner marker waivers are provided uniformly throughout the State, all licensees will be expected to comply with the amendments and new rule and no differing compliance requirements have been provided based on the size of the business.

Smart Growth Impact

The Board does not anticipate that the proposed amendments and new rule will have any impact on the achievement of smart growth or on implementation of the State Development and Redevelopment Plan, otherwise known as the State Plan.

Full text of the proposal follows :

<< NJ ADC 13:40-3.1 >>

13:40-3.1 Enumeration of prohibited acts

(a) Misconduct in the practice of professional engineering or land surveying shall include, without limitation:

1.-13. (No change.)

<<+14. Failure to comply with the requirements set forth in N.J.A.C. 13:40- 5.1(d) and 5.2 concerning the waiver of the setting of corner markers.+>>

<< NJ ADC 13:40-5.1 >>

13:40-5.1 Land surveyors; preparation of land surveys<<+; setting of corner markers+>>

(a)-(c) (No change.)

(d) Appropriate corner markers, such as stakes, iron pipes, cut crosses, monuments, and such other markers as may be authorized by (d)2 below, shall be set either by the licensed land surveyor or under the supervision of the licensed land surveyor. Such markers shall be set at each property corner not previously marked by a property marker, unless the actual corner is not accessible<<+, or unless a written waiver signed by the ultimate user and witnessed by a person other than a land surveyor is obtained as set forth in N.J.A.C. 13:40-5.2. The failure to obtain a waiver when corner markers are not set shall be considered professional misconduct. Any violation of this subsection shall subject the licensee to a penalty of not more than $2,500 for each violation+>>.

1.-10. (No change.)

(e)-(n) (No change.)

<< NJ ADC 13:40-5.2 >>

<<+13:40-5.2 Waiver of corner markers+>>

<<+(a) For purposes of this section, "ultimate user" means the contract purchaser of the property. If no purchaser exists, the ultimate user is the owner of the property. In cases where there are multiple ultimate users of the property being surveyed, only one ultimate user is required to sign the waiver.+>>

<<+(b) Whenever the setting of corner markers is waived by the ultimate user, the land surveyor shall:+>>

<<+1. Advise the ultimate user in writing as set forth in (c) below of the impact of signing the corner marker waiver. Such advice shall include, but not be limited to:+>>

<<+i. The possible need for a future survey as a result of physical improvements to the property; and+>>

<<+ii. The potential inability of the ultimate user to identify the actual boundary of the property;+>>

<<+2. Review the waiver to ensure that it is properly signed by the ultimate user and witnessed by a person other than a land surveyor; and+>>

<<+3. Perform a physical measurement of the property.+>>

<<+(c) The corner marker waiver shall be in the following form:+>>

WAIVER AND DIRECTION NOT TO SET CORNER MARKERS

TO: _____________________________________________________________
(Name, address and telephone number of the Land Surveyor)
FROM: ___________________________________________________________
(Name, address and telephone number of the Ultimate User)
Re: _____________________________________________________________
Property (Lot and block number, municipality or other identifier)

<<+This is to advise that I have been made aware of my right to have corner markers set as part of a survey to be performed on the aforementioned property. In addition, I have been made aware of the potential impact of signing the waiver including: (1) the possible need for a future survey as a result of physical improvements to the property, such as a fence, addition, deck, pool, or shed, and (2) the potential inability of the ultimate user to identify the actual boundary of the property which could result in a boundary dispute with an adjoining property owner and/or property improvements not accurately situated on my property. The right to have corner markers set is hereby waived, and you are directed to perform the land survey without the setting of corner markers as provided by the regulation (N.J.A.C. 13:40-5.2) of the State Board of Professional Engineers and Land Surveyors.+>>

_____________________________________
Ultimate User's Signature
Date: _______________________________
_____________________________________
Witness' Signature
Date: _______________________________
_____________________________________
Name of Witness (Typed or Printed)
_____________________________________
_____________________________________
Address of Witness (Typed or Printed)

<<+I hereby certify that I have:+>>

<<+ 1. Advised the ultimate user of the impact of signing the corner marker waiver, which shall include, but not be limited to, the possible need for a future survey as a result of physical improvements to the property and the potential inability of the ultimate user to identify the actual boundary of the property;+>>

<<+ 2. Reviewed the waiver to ensure that it was properly signed by the ultimate user and witnessed by a person other than a land surveyor; and+>>

<<+ 3. Performed a physical measurement of the property.+>>

___________________________________
New Jersey Licensed Land Surveyor

Date: _____________________________

<<+(d) Whenever a written waiver to omit corner markers is obtained, the following notation shall be included on the plat or plan of survey: "A written Waiver and Direction Not to Set Corner Markers has been obtained from the ultimate user pursuant to P.L. 2003, c.14 (N.J.S.A. 45:8-36.3) and N.J.A.C. 13:40-5.1(d)."+>>

<<+(e) The licensee shall maintain the signed corner marker waiver for a minimum of six years.+>>

<<+(f) The licensee shall submit documentation of any waiver to the Board upon its request.+>>

<<+(g) The Board may review the records of licensees periodically to determine compliance with this section.+>>

<<+(h) Failure to comply with the provisions of this section shall be deemed professional misconduct. Any violation of the provisions of (d) or (e) above shall subject the licensee to a penalty of not more than $2,500 per violation.+>>


END OF DOCUMENT



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