INTRODUCTION

NJ Judges DELIBERATELY & FALSELY state
“PERMITS" are "NOT”
required to decommission Underground Storage Tanks (USTs) despite Administrative Codes to the contrary

By: Dorothy Mataras

(Revised version of complaint sent to
State Commission of Investigation with exhibits on 1/29/04)

SECTION I

PORTION OF UNPUBLISHED APPELLATE COURT OPINION
(Full Opinion available on Request)

The first part of the opinion is also misleading as well as filled with falsehoods related to sidewalk codes
NOTE: The bold type within [ brackets] below is inserted by Mataras for clarification of omissions and fraud

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

A-5023-97T3

VAR CONSTRUCTION, INC., Plaintiff-Respondent,

 vs.

 DOROTHY MATARAS,

Defendant/Third Party Plaintiff Appellant,

vs.

 VITO RAGANELLI & VAR CONSTRUCTION, INC.

Third Party Defendant-Respondent.

 Argued: May 24, 1999 - Decided: JUL 22, 1999

Before Judges Cuff and Collester.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County.

Fred Shahrooz Scampato argued the cause for appellant (Dorothy Mataras, on the pro se brief). James G. Lepis argued the cause for Respondents (Mr. Lepis, of counsel; Anne F. Lepis, on the brief).

PER CURIAM

[Mataras], Defendant contacted Vito Raganelli, principal of plaintiff VAR Construction, Inc., (VAR) to decommission two underground storage tanks and to replace the sidewalk in front of two adjoining Jersey City property. [178 & 180 Main Avenue (fictitious)] VAR submitted a proposal on September 10, 1993, with the following provisions to perform the work at a total cost of $5972:

A)  INSTALL SAND INTO TWO TANKS UNDER THE SIDEWALK *

B)  CUT ALL FILLER AND AIR PIPES.

C)  REMOVE AND REPLACE THE FRONT CONCRETE SIDEWALK.

D)  ALSO INCLUDE A STONE BASE OF FIVE INCH CONCRETE & REINFORCING WIRE.

E)   CLOSE UP TWO WINDOW WELLS IN THE SIDEWALK.

F)   BUILD FORMS AROUND THE TREES.

G)  REMOVE ALL DEBRIS TO THE DUMP SITE.

H) ALL LABOR, EQUIPMENT AND MATERIAL IS TO BE INCLUDED.

The proposal called for an initial deposit of $1500 with the balance due on completion. The proposal was signed by Raganelli. (See Exhibit #1) [It was not signed by Mataras because he didn’t mention permits & Certificates of Approval]. By letter dated September 29, 1993, [Mataras] stated in part, "[enclosed is my check for $1500 for deposit on filling oil tanks and all other related work, permits, etc. regarding them and the new sidewa1ks. ). [*** As soon as I get clearances on the above work, I hope to be in touch with you regarding the facades and work at 178.] (See Exhibit #2)

 The job was completed, according to Raganelli, sometime between September and October 1993. VAR requested payment of the balance; defendant requested copies or the Construction Code Office approvals of the work. When defendant Mataras refused to remit final payment, Raganelli filed a Notice of Lien and plaintiff filed its complaint seeking the balance due of $4472 on January 17, 1995.

 Defendant [Mataras] filed an answer to the complaint denying the existence of a contract asserting plaintiff had not obtained the necessary permits to do the work and denying that the work was completed in a workmanlike manner, Defendant asserted a counterclaim against VAR and a third party complaint against Vito Raganelli in which she claimed that plaintiff's actions in the performance of the contract constituted violations of the Consumer Fraud Act. N.J.S.A. 56:8-1 to -20.

 Raganelli, sole proprietor of plaintiff VAR, testified that he had done tank decommissioning work in Jersey City on several occasions before commencing work at defendant's premises. He also testified that he obtained a permit to remove and replace the sidewalk in front of 178 and 180 Main Avenue, inquired concerning the specifications to abandon in-place underground storage tanks, and determined that a permit from neither the New Jersey Department of Environmental Protection (NJDEP) [Mataras relied on NJ Administrative Codes] nor the City of Jersey City was required. *** after defendant refused to pay for the work and insisted on presentation of certificates from the City of Jersey city approving the work, [Mataras hired another contractor to open one sidewalk for review by the Jersey City Code office. She] applied for and obtained a “certificate of approval.”

 [Mataras] Defendant contended that a permit was required not only to remove and replace the sidewalk, but also to decommission each underground oil tank. She argues that production of an after-the-fact permit and [her] certificate of approval supports her position that the work proceeded without the necessary permits. She further contends that the commencement of work without the requisite permits and the demand for payment for work performed without the necessary permit constitute violations of regulations governing home repair contractors and acts of consumer fraud.

 *** certifications at the conclusion of the work are not expected if a permit to do the work is not required. Thus, Judge Taylor [trial court judge] did not err when he ruled as a matter of law that a permit was not required. Moreover, neither plaintiff (VAR) nor Raganelli committed an unlawful practice by commencing and performing the work and by demanding payment without a permit or presentation of inspection certificates. Therefore, Mataras' counterclaim and third party complaint seeking relief under the Consumer Fraud Act lacked a factual basis and were properly dismissed.

 Finally, based on our review of the record the remaining issues presented by Mataras are clearly without merit. R. 2:11-3(e)(1)(A), (C), (E)[i]

[1] Court’s footnote. We also note that Mataras' legal arguments presume that VAR was required to obtain all necessary permits. The agreement between the parties is silent on this issue and no statute or regulation requires a home repair contractor to obtain all permits for an owner. See Cox, supra, 138 N.J. at 20. -- (Read highlighted sections)
(This footnote is a judicial obfuscation) -- Cox states: "Because no permit was ever issued for the Cox home, no inspections took place and no certificate was issued. In that regard, Sears violated N.J.A.C. 13:45A-16.2(a)10ii, which requires a contractor to give the owner a copy of an inspection certificate before final payment is due and before the contractor asks the owner to sign a completion slip."

[Mataras relied on Roberts et al vs. Cowgill et al. 316 N.J. Super. 33, 719 A.2d 668, (Super. Ct. App. Div. 1998). "It is a State Law that prior to a final payment being released to a building contractor that all final inspections by the appropriate code officer are performed and certifications issued."]

 SECTION II

New Jersey Statutes, Codes & Case Law relied on by Mataras & her attorneys

Reference: N.J.A.C. 5:23-3.14 Building Subcode - Section 619.0, BOCA National Fire Prevention Code - Section F-2806.11.

N.J.A.C. 5:23-3-14 is the State's Building subcode delineating:

Pursuant to authority of P.L. 1975, c.217, the Commissioner hereby adopts the model code of the Building Officials and Code Administrators International, Inc. known as the 'BOCA National Building Code/1993," including all subsequent revisions and amendments thereto.

Building Subcode section 619.0, "Flammable and Combustible Liquids" is applicable to storage systems containing liquids such as home heating oil.

Section F-2806.11 of the 1990 BOCA National Fire Prevention Code, referenced in section 619.0, indicates that a permit is required to abandon tanks formerly used to store heating oil. All work covered under the permit must be inspected upon completion without regard to the allowable 90 days required to decommission an abandoned tank that are referenced in F-2806.11.

N.J.A.C. 5:23-3-11B related to UST's provides:

The installation, repair (other than “minor repair,” as defined in N.J.A.C. 7:14B-10.5), and closure (or “demolition”) of underground storage tank systems, as defined in N.J.A.C. 7:14-10.1, shall be controlled by the State Uniform Construction Code and by N.J.A.C. 7:14B-1 through 15.

2. Tanks with a capacity of 2,000 gallons or less used to store heating oil ***

N.J.A.C. 5:23-2.32 defines "Unsafe structures" ”as underground flammable and combustible liquid storage tanks which have been abandoned or placed temporarily out of service. They are considered unsafe and are to be removed or made safe.”

N.J.A.C. 5:23-2.14(a), Construction permits – when required, provides in pertinent part: -- (a)  It shall be unlawful to construct, enlarge, alter or demolish a structure, *** without first filing an application with the construction official, or the appropriate subcode official where the construction involves only one trade or subcode, in writing and obtaining the required permit therefor.

N.J.S.A. 56:8-1 to -20. Consumer Fraud Act

N.J.A.C. 13:45A-16.2(a)(12) (Home improvement contract writing requirement)

All home improvement contracts for a purchase price in excess of $200.00, and all changes in the terms and conditions thereof shall be in writing. Home improvement contracts which are required by this subsection to be in writing, and all changes in the terms and conditions thereof, shall be signed by all parties thereto, and shall clearly and accurately set forth in legible form all terms and conditions of the contract, including, but not limited to, the following:

i. The legal name and business address of the seller, including the legal name and business address of the sales representative or agent who solicited or negotiated the contract for the seller;

ii. A description of the work to be done and the principal products and materials to be used or installed in performance of the contract. The description shall include, where applicable, the name, make, size, capacity, model, and model year of principal products or fixtures to be installed, and the type, grade, quality, size or quantity of principal building or construction materials to be used. Where specific representations are made that certain types of products or materials will be used, or the buyer has specified that certain types of products are to be used, a description of such products or materials shall be clearly set forth in the contract;

iii. The total price or other consideration to be paid by the buyer, including all finance charges. If the contract is one for time and materials, the hourly rate for labor and all other terms and conditions of the contract affecting price shall be clearly stated;

iv. The dates or time period on or within which the work is to begin and be completed by the seller; ****

N.J.A.C. 13:45A-16.1

"Home improvement" means the remodeling, altering, painting, repairing, or modernizing of residential or noncommercial property or the making of additions thereto, and includes, but is not limited to, the construction, installation, replacement, improvement, or repair of driveways, sidewalks, *** basements *** fire protection devices, *** heating and air conditioning equipment, ***heaters, ***, and other changes, repairs, or improvements made in or on, attached to or forming a part of the residential or noncommercial property, but does not include the construction of a new residence. ***

"Home improvement contract" means an oral or written agreement between a seller and an owner of residential or noncommercial property, *** and includes all agreements under which the seller is to perform labor or render services for home improvements, or furnish materials in connection therewith.

"Residential or non-commercial property" means a structure used, in whole or in substantial part, as a home or place of residence by any natural person, whether or not a single or multi-unit structure, and that part of the lot or site on which it is situated and which is devoted to the residential use of the structure, and includes all appurtenant structures.

Underground fuel oil tanks are defined as structures pursuant to NJAC 5:23-2.14 Each tank had pipes that brought the oil from the tank to the furnace in the basement. Sidewalks are clearly defined in the paragraph "Home Improvement" above.

Consumer Fraud Act Statutes

Home Improvement Codes -- includes info on other cases

 A FEW CONTROLLING CASES

Cox v. Sears Roebuck & Co., 138 N.J. 2 (1994) -- Because no permit was ever issued for the Cox home, no inspections took place and no certificate was issued. In that regard, Sears violated N.J.A.C. 13:45A-16.2(a)10ii, which requires a contractor to give the owner a copy of an inspection certificate before final payment is due and before the contractor asks the owner to sign a completion slip.

Roberts et al vs. Cowgill et al. 316 N.J. Super. 33, 719 A.2d 668, (Super. Ct. App. Div. 1998). It is a State Law that prior to a final payment being released to a building contractor that all final inspections by the appropriate code officer are performed and certifications issued.

New Jersey State League of Municipalities v. Department of Community Affairs 158 N.J. 211 (1999) 729 A.2d 21

This Court has recognized that "the grant of authority to an administrative agency is to be liberally construed in order to enable the agency to accomplish its statutory responsibilities and . . . courts should readily imply such incidental powers as are necessary to effectuate fully the legislative intent." * * * “a reviewing court is not to substitute its judgment for that of the agency, Dougherty v. Department of Human Servs., 91 N.J. 1, 6, 449 A.2d 1235 (1982)”

Manalapan Realty v. Manalapan Twp. Committee, 140 N.J. 366, 378 (1995). There is no question that Respondent violated N.J.A.C. 13:45A-16.2(a)(10)(i) (Building Permits), which provides:

No seller contracting for the making of home improvements shall commence work until he is sure that all applicable state or local building and construction permits have been issued as required under state laws or local ordinances;

G & S Investors Frelinghuysen Ave., Inc. V. Aristo 256 N.J. Super. 495, 607 A.2d 682 (Super. Ct. App. Div. 1992) which is another case the appellate court should judicially recognize as valid. . . . The fuel oil contained in the storage tanks is obviously a petroleum product. Petroleum products are "hazardous substances" under N.J.S.A. 13:1K-8d and N.J.A.C. 7:26B-1.3. The fuel oil is contained within the underground tank so as "to protect the materials themselves," and therefore falls within the concept of "storage" as it was explained in Matter of Fabritex Mills, Inc., 231 N.J. Super. 224, 231, 555 A.2d 649 (App.Div.1989).

"[S]tatutes should be construed in a commonsense manner which will advance their legislative purpose." *** The contamination of underground water is the same in either case if the storage tank containing the hazardous substance leaks.