NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2297-19
DEPARTMENT OF
COMMUNITY AFFAIRS,
SANDY RECOVERY DIVISION,
Petitioner-Respondent,
v.
ANTHONY MELIA,
Respondent-Appellant.
______________________________
Argued December 8, 2021 – Decided March 11, 2022
Before Judges Gilson and Gummer.
On appeal from the New Jersey Department of
Community Affairs, Docket No. CAF 11786-18.
Joshua I. Savitz argued the cause for appellant (Weiner
Law Group, LLP, attorneys; Joshua I. Savitz, of counsel
and on the briefs).
Eric A. Reid, Deputy Attorney General, argued the
cause for respondent (Andrew J. Bruck, Acting
Attorney General, attorney; Sookie Bae, Assistant
Attorney General, of counsel; Eric A. Reid, on the
brief).
PER CURIAM
Anthony Melia appeals from the final decision of the Department of
Community Affairs (Department), which determined that Melia had to refund
grant monies he received from the Department to repair a house damaged by
Superstorm Sandy because the house was not Melia's primary residence. Melia
contends that the Department's decision was arbitrary, capricious, and
unreasonable, and was based on an improper shifting of the burden to prove
Melia's eligibility to receive the grants. We reject those arguments and affirm.
I.
On October 29, 2012, Superstorm Sandy struck New Jersey. In response
to the damage caused by the storm, the United States Department of Housing
and Urban Development (HUD), through the Community Development Block
Grant-Disaster Recovery Program, provided funds to the Department for a
variety of programs designed to assist affected New Jersey residents who met
the eligibility requirements.
The Department established several programs, including the Resettlement
program (RS program) and the Reconstruction, Rehabilitation, Elevation, and
Mitigation program (RREM program). The RS program provided $10,000
grants for non-construction purposes to encourage eligible homeowners to
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remain in the county in which they lived at the time of the storm. The RREM
program provided grants of up to $150,000 to assist eligible homeowners with
construction, rehabilitation, elevation, and other mitigation efforts to restore
their residences.
To be eligible for grants under either program, the damaged residence
must have been the applicant's primary residence at the time of the storm. The
Department published the eligibility criteria for the grants. The published
criteria explained that for both programs the Department preferred that
applicants verify their primary residence through multiple data sources and
documents. The preferred verification required documents showing (1)
ownership of the property; (2) Federal Emergency Management Agency
(FEMA) records showing the applicant reported to FEMA that the property was
the primary residence at the time of the storm; and (3) a New Jersey driver's
license or non-driver identification card showing the damaged residence as the
address. See RS program policy at 4.2 and RREM policy at 3.4.
If primary residence could not be established through the preferred
documentation, an applicant to the RS program could provide two of three
documents: a government-issued document sent to the damaged residence; a
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voter registration card; or insurance documentation showing "that the damaged
address is the applicant's primary residence." RS program policy at 4.3.
An applicant seeking a grant under the RREM program could establish
primary residence by providing federal tax return documents showing the
damaged residence is his or her primary residence, as well as a voter registration
card showing the damaged residence. RREM program policy at 3.4. The
policies and procedures for both programs also stated that the Department might
consider other documentation to prove primary residence on a case-by-case
basis.
Melia owned two homes at the time of Superstorm Sandy: a home he
inherited from his father located at 71 Glenview Road, Nutley (the Nutley
property), and a home located at 71 West Granada Drive, Brick (the Brick
property). Melia purchased the Brick property in April 2012. On October 29,
2012, Superstorm Sandy damaged Melia's Brick property.
In June 2013, Melia submitted applications for grants under both the RS
program and the RREM program. In July 2013 and February 2014, Melia
executed grant agreements and promissory notes for grants under both programs.
In the grant agreements, Melia certified that the Brick property was his primary
residence at the time of Superstorm Sandy.
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The Department approved Melia's application under both programs. In
2013, Melia received $10,000 from the RS program. The RS program's grant
agreement and promissory note provided that the grantee would be obligated to
repay the entire grant amount if the grantee failed to maintain a qualifying
primary residence. In 2014, Melia received two RREM program grant checks
totaling $133,519.99. The RREM program's grant agreement stated that false
or materially misleading representations in either the grant agreement or
application would constitute an event of default, and the remedies for a default
include recovery of the grant.
In March 2016, the Department sent Melia a letter demanding repayment
of the monies under both grant programs because it had determined that the
Brick property was not Melia's primary residence. Melia administratively
appealed that determination, and the Department transferred the matter to the
Office of Administrative Law as a contested case.
In 2019, an Administrative Law Judge (ALJ) heard testimony and
received evidence on three days: March 8, 2019, March 11, 2019, and July 22,
2019. The Department relied on documentation, principally consisting of
Melia's driver's license, voter registration, tax returns, and mortgage documents.
Melia's driver's license showed that his primary residence was the Nutley
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property, and on November 12, 2012, he changed his driver's license so that it
listed his Brick property. Melia's voter registration listed the Nutley property
as his primary residence at the time of Superstorm Sandy, and he changed his
voter registration on December 20, 2012, to list the Brick property. The
evidence at the hearing showed that Melia voted in Nutley in the November 2012
election. Melia's federal 2012 tax return, which was filed in April 2016,
identified the Nutley property as his primary residence.
Melia also executed several mortgages that listed the Nutley property as
his primary residence. When Melia purchased the Brick property, he obtained
a mortgage and executed a "second home rider" in which he agreed that he would
occupy the Brick property only as his second home. Melia also executed a
separate mortgage in March 2013 on the Nutley property. In that mortgage
Melia stated he would occupy the Nutley property as his primary residence.
At the hearing, Melia contended that he used the Brick property as his
primary residence. He testified that he had begun living at the Brick property
in April 2012. He explained that he had failed to change his driver's license and
voter registration because he did not get around to it. Concerning the mortgage
documents, Melia contended that he had not carefully reviewed those documents
and instead had relied on his attorney. Melia also provided testimony from ten
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neighbors and friends, all of whom testified that, based on their observations,
Melia used the Brick property as his primary residence after he had purchased it
in April 2012.
On September 26, 2019, the ALJ issued an initial decision upholding the
Department's determination that Melia was not eligible for the grants under
either program. The ALJ relied on the driver's license, voter registration, tax
returns, and mortgages to find that Melia had not used the Brick property as his
primary residence at the time of Superstorm Sandy. The ALJ determined that
the documents provided by Melia were not sufficient to establish that the Brick
property was his primary residence. The ALJ also rejected the testimony of
Melia's friends and neighbors, reasoning that they had offered only subjective
observations and "no direct objective evidence" that Melia's primary residence
was the Brick property at the time of the storm.
Melia administratively appealed the ALJ's initial determination to the
Department. In connection with his exceptions, Melia filed a motion to reopen
the record and submit a December 18, 2019 FEMA decision finding that Melia
was not required to return the FEMA funds because the Brick property was his
primary residence.
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On December 27, 2019, the Department, through its commissioner, issued
a final agency decision adopting the ALJ's initial decision and holding that Melia
must refund the grants he had received under the RS and RREM programs. The
Department reasoned that documentary evidence is the preferred method for
establishing primary residence under both programs. Accordingly, the
Department found that the ALJ had properly focused on the documentary
evidence. The Department then addressed and analyzed Melia's various
arguments and rejected them. Finally, the Department acknowledged the FEMA
determination but found that it was not "controlling or persuasive" because the
FEMA analysis differed significantly from the State programs' focus on the
required documentation.
II.
On this appeal, Melia contends that the Department's decision should be
reversed because (1) it was arbitrary, capricious, unreasonable, and lacked a
factual basis; and (2) it relied on an erroneous burden of proof. We are not
persuaded by either of these arguments.
Our scope of review of an administrative agency's final determination is
limited. In re Herrmann, 192 N.J. 19, 27 (2007). The "final determination of
an administrative agency . . . is entitled to substantial deference." In re Eastwick
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Coll. LPN-RN Bridge Program, 225 N.J. 533, 541 (2016). A "strong
presumption of reasonableness attaches" to an agency's decision. In re Carroll,
339 N.J. Super. 429, 437 (App. Div. 2001) (quoting In re Vey, 272 N.J. Super.
199, 205 (App. Div. 1993), aff’d, 135 N.J. 306 (1994)). We will not "disturb an
administrative agency's determinations or findings unless there is a clear
showing that (1) the agency did not follow the law; (2) the decision was
arbitrary, capricious, or unreasonable; or (3) the decision was not supported by
substantial evidence." In re Virtua-West Jersey Hosp. Voorhees for a Certificate
of Need, 194 N.J. 413, 422 (2008).
Moreover, we do not second-guess or substitute our judgment for that of
the agency. Accordingly, we do not "engage in an independent assessment of
the evidence as if [we] were the court of first instance." In re Taylor, 158 N.J.
644, 656 (1999) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). Instead,
we give "due regard to the opportunity of the one who heard the witnesses to
judge . . . their credibility" and, therefore, accept the findings of fact "when
supported by adequate, substantial and credible evidence." Ibid. (first quoting
Close v. Kordulak Bros., 44 N.J. 589, 599 (1965); and then quoting Rova Farms
Resort, Inc. v. Invs. Ins. Co., 65 N.J. 474, 484 (1974)). Nevertheless, we are not
bound by an agency's "interpretation of a statute or its determination of a strictly
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legal issue." In re Carter, 191 N.J. 474, 483 (2007) (quoting Mayflower Sec.
Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)).
We discern no basis for disturbing the Department's determination that
Melia was not eligible for grants under the RS program or the RREM program.
The Department adopted the fact findings made by the ALJ. The ALJ, in turn,
found that Melia had not proven that the Brick property was his primary
residence based on his driver's license, voter registration, tax returns and
mortgages. That determination is supported by substantial credible evidence.
The Department and the ALJ also considered but rejected Melia's testimony and
the testimony of his friends and neighbors. In that regard, the Department
adopted the ALJ's reasoning in finding that their testimony was not objective
evidence of his primary residence. We discern no basis for rejecting tha t
finding, which essentially is a credibility determination.
Melia further argues that the Department should have placed greater
weight on the FEMA decision that concluded, largely based on witness
testimony, that the Brick property was his primary residence. This is not the
first time this court has been asked to discard the document-focused approach
used by the Department to determine a property owner's "primary residence."
See N.J. Dep't of Cmty. Affs., Sandy Recovery Div. v. Maione, 456 N.J. Super.
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146, 155-56 (App. Div. 2018). In Maione, this court declined to hold that the
"primary residence" question should be resolved by relying on the common-law
concept of "domicile." Id. at 155. We rejected that test in part because it would
generate extensive litigation, diverting resources intended for disaster relief to
"pay lawyers" and not "carpenters, masons, and plumbers." Id. at 156. The
Department's "straightforward approach," on the other hand, informs grant
applicants of the "list of specific documents" that the Department uses to make
"critical eligibility determinations." Id. at 155. That approach assists
homeowners through an uncomplicated process that serves the important "public
policy underpinning these relief programs." Ibid.
Following that same logic, we decline to hold that the Department should
have used a different test here. Instead, the Department's straightforward
approach is in line with both public policy and the clear requirements of both
programs' policies.
Melia also raises a contention concerning the burden of proof. He argues
that it was the Department's burden to show substantial credible evidence that
he should return the grant monies. He then contends that the Department and
ALJ incorrectly focused on his failure to establish that the Brick property was
his primary residence on the day of Superstorm Sandy.
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The Department concedes that it must demonstrate that Melia does not
qualify under the grant-program rules. It points out, however, the grant
programs' policies and procedures clearly state that the applicant must establish
that the damaged property was his or her primary residence at the time that
Superstorm Sandy struck. The ALJ and the Department evaluated all the
evidence presented and found that Melia was not eligible for grants under either
program. We discern no improper shifting of a burden that would warrant a
reversal of the Department's final agency determination.
Affirmed.
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