Opinion
DOCKET NO. A-4918-12T3
07-22-2014
GEORGE EKEMEZIE, Plaintiff-Appellant, v. CLEVELAND THOMPSON, TRENTON CONSTRUCTION BOARD OF APPEALS, Defendants-Respondents.
George Ekemezie, appellant pro se. Saponaro & Sitzler, attorneys for respondents (Douglas E. Burry, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Harris and Fasciale.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1861-12.
George Ekemezie, appellant pro se.
Saponaro & Sitzler, attorneys for respondents (Douglas E. Burry, on the brief). PER CURIAM
In this action in lieu of prerogative writs, plaintiff George Ekemezie appeals from a May 6, 2013 order affirming a Notice and Order of Penalty issued by defendant Trenton Construction Board of Appeals (the "Board"). We affirm.
Plaintiff owns a building in Trenton. In 2011, he decided to convert the building's heating system from oil to gas. Plaintiff's contractor applied for permits to replace the building's furnace. The relevant applications did not mention the removal of an oil tank; the fire subcode application included checkboxes to indicate if flammable or combustible fuel storage tanks would be involved in the proposed work, but the contractor did not check these boxes.
In November 2011, the Department of Inspections issued defendant a construction permit authorizing him to perform "building, electric, plumbing [and] fire work." In February 2012, a construction official inspected the property. The Department of Inspections issued plaintiff a Notice and Order of Penalty indicating that he failed to obtain a construction permit and ordering him to pay a $2000 penalty.
Plaintiff requested a hearing before the Board. At the hearing, defendant Cleveland Thompson, Director of the Department of Inspections, argued that the oil tank was not removed correctly and that there was no indication as to whether plaintiff disposed of the oil tank properly. Plaintiff stated that a friend removed the oil tank and that he donated the tank to a non-profit organization. The Board upheld the penalty. Plaintiff then filed this action in lieu of prerogative writs. Judge Mary C. Jacobson, A.J.S.C. conducted oral argument and issued an oral decision upholding the Board's decision.
On appeal, plaintiff argues the following points:
POINT I
PLAINTIFF APPLIED FOR AND WAS ISSUED WITH ALL REQUIRED PERMITS.
POINT II
THE PENALTY ORDER ISSUED TO PLAINTIFF SPECIFICALLY FOR "FAILURE TO OBTAIN CONSTRUCTION PERMIT" IN VIOLATION OF [N.J.A.C.] 5:23-2.14 SHOULD BE STRICTLY CONSTRUED.
POINT III
THE COURT BELOW SHOULD NOT HAVE RELIED AND/OR IMPROPERLY RELIED ON BULLETIN NO. 95-1B OF THE NEW JERSEY DEPARTMENT OF COMMUNITY AFFAIRS, DIVISION OF CODES AND STANDARDS IN HOLDING THAT PLAINTIFF IS REQUIRED TO OBTAIN A PERMIT TO REMOVE THE OIL TANK AS PART OF THE PERMITS REQUIRED FOR CONVERSION.
POINT IV
DEFENDANTS FAILURE TO GIVE PLAINTIFF A VIOLATION NOTICE AS REQUIRED BY [N.J.A.C.] 5:23-2.30 INVALIDATES THE PENALTY ORDER.
After a thorough review of the record and consideration of the controlling legal principles, we conclude that plaintiff's arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following brief comments.
We accord deference to agency decisions and do not disturb such decisions unless they were "arbitrary, capricious, or unreasonable, . . . lacked fair support in the evidence, or . . . violated legislative policies expressed or implicit in the [enabling statute]." Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963).
The Fire Protection Subcode, N.J.A.C. 5:23-3.17, regulates oil tanks by incorporating a pertinent section of the International Mechanical Code that requires the removal of fuel oil storage tanks to comply with Section 3404.2.13 of the International Fire Code. This section specifies procedures for removing and disposing of oil tanks. N.J.A.C. 5:23-2.14(a) provides that
[i]t shall be unlawful to construct, enlarge, repair, renovate, alter, reconstruct or demolish a structure, or change the use of a building or structure, or portion thereof, or to install or alter any equipment for which provision is made or the installation of which is regulated by this chapter without first filing an application with the construction official, or the appropriate subcode official where the construction involves only one subcode, in writing and obtaining the required permit therefor.
[(Emphasis added).]
It is undisputed that plaintiff himself did not apply for a permit. And, plaintiff's contractor did not indicate on the permit applications that there was a flammable or combustible fuel storage tank. Applying the relevant standard, we find that the Board's action was not arbitrary, capricious, or unreasonable.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELATE DIVISION