NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0712-15T4
NEW JERSEY DEPARTMENT OF
COMMUNITY AFFAIRS, SANDY
RECOVERY DIVISION, APPROVED FOR PUBLICATION
Petitioner-Respondent, August 23, 2018
APPELLATE DIVISION
v.
JOSEPH MAIONE,
Respondent-Appellant.
_____________________________
Argued March 14, 2018 – Decided August 23, 2018
Before Judges Fuentes, Koblitz and Manahan.
On appeal from the Department of Community
Affairs, Sandy Recovery Division, Agency
Docket No. RSP0001747.
John A. Conte, Jr., argued the cause for
appellant (Rubenstein, Meyerson, Fox,
Mancinelli, Conte & Bern, PA, attorneys; John
A. Conte, Jr. and James de Stefano, on the
brief).
Valentina M. DiPippo, Deputy Attorney General,
argued the cause for respondent (Gurbir S.
Grewal, Attorney General, attorney; Melissa D.
Schaffer, Assistant Attorney General, of
counsel; Valentina M. DiPippo, on the brief).
The opinion of the court was delivered by
FUENTES, P.J.A.D.
Joseph Maione appeals from the final decision of the
Department of Community Affairs (DCA) that found him ineligible
to receive two Superstorm Sandy recovery grants: the
Rehabilitation, Reconstruction, Elevation and Mitigation (RREM)
grant in the amount of $75,000; and the Resettlement Program grant
(RSP), in the amount of $10,000. The DCA awarded these grants to
assist homeowners remain in the County after the storm damaged
their primary residence or to help them rebuild or repair their
damaged primary residence.1 The DCA Sandy Recovery Division
published the eligibility criteria for these grants on its website.
Both grants expressly condition eligibility to receive these funds
on the damaged house being the applicant's primary residence at
the time the storm hit on October 29, 2012.
Appellant was awarded these two grants based on his
representation on the grant applications that his primary
residence was a property he owned in Toms River. However, the DCA
thereafter found documentary evidence showing appellant's primary
residence at the time of the storm was an apartment located on
Adams Street in Hoboken that he shared with his mother. Based on
1
The devastation Superstorm Sandy caused to our shore communities
is well-documented. See Estate of Doerfler v. Fed. Ins. Co., 454
N.J. Super. 298, 299 n.1 (App. Div. 2018).
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this determination, the DCA demanded that appellant refund the
$85,000 he received through these grants.
Appellant contested the DCA's decision and requested a
hearing to present evidence in support of his claim. The matter
was transferred to the Office of Administrative Law for a plenary
hearing before an Administrative Law Judge (ALJ). After
considering the testimonial and documentary evidence presented,
the ALJ issued an Initial Decision finding appellant did not
satisfy the criteria for eligibility with respect to these two
grants and concluded he was obligated to return the $85,000 grant
funds. The DCA Commissioner adopted the ALJ's Initial Decision
as his Final Decision.
Appellant now argues before this court that the
Commissioner's decision, finding his primary residence at the time
of the storm was in Hoboken, is arbitrary and capricious because
it was not based on the common law concept of "domicile." We
reject this argument. The DCA conditioned the award of these
grants on the applicant meeting the criteria for eligibility
published on its website. The threshold criterion for eligibility
is that the property damaged by the storm was the applicant's
primary residence.
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The ALJ found that appellant's Toms River property was not
his primary residence at the time of the storm. As the ALJ
explained in her Initial Decision:
[T]he documentation pointing to Toms River is
extraordinarily thin – essentially just a
Homestead Rebate and a statement to FEMA. And
more important, in March 2012 [appellant] made
a declaration of primary residence to the
federal government and took a 2011 tax credit
based on that declaration, which stated that
the Adams Street property was his primary
home. No documentation supports any
substantial change between 2011 and 2012.
The ALJ's findings are amply supported by the record developed by
the parties at the administrative hearing. We therefore affirm
the decision of the DCA Commissioner. The following facts inform
our analysis.
On May 24, 2013, appellant applied for a grant under the RSP.
The RSP eligibility criteria describes in plain language what the
applicant needs to establish to receive this financial assistance.
Section 4 is titled "Occupancy as Primary Residence." Section 4.1
states: "Applicants must have occupied the property as their
primary residence on the date of the storm[, October 29, 2012].
Second homes, vacation homes and rental properties do not qualify
an applicant for a Resettlement Grant."
On June 5, 2013, appellant also applied for a grant under the
RREM program. The RREM program also has a plainly worded
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eligibility criteria. Section 3.4 is titled "Primary Residence"
and states: "Applicants must have occupied the property as their
primary residence on the date of the storm (October 29, 2012).
Second homes, vacation homes, and rental properties are not
eligible for a RREM grant award."
Appellant executed a grant agreement for the RSP on July 23,
2013, and executed a grant agreement for the RREM program on
January 13, 2014. The DCA awarded appellant a $10,000 grant under
the RSP program, and a $75,000 grant under the RREM. On March 12,
2015, the DCA informed appellant that it had determined he was not
eligible to receive these funds under the RSP and RREM programs
because the damaged property listed on his applications was not
his primary residence at the time of the storm. The DCA demanded
that appellant void the two checks totaling $85,000 or return the
grant funds directly to the State Treasurer.
By letter dated March 19, 2015, appellant contested the DCA's
determination and demand for the return of the grant funds, and
requested a hearing before an ALJ. The hearing before the ALJ
began on June 16, 2015. The DCA presented the testimony of
Nicholas Smith-Herman, project assistant in the Office of
Compliance and Monitoring. According to Smith-Herman, in the
course of conducting a "checks and balances" review of grant
applications, he discovered that appellant's RSP and RREM
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applications lacked "primary residence support." At that point,
appellant was in the "constructive phase" of his restoration
project. This meant he had received part of the funds and had
started to reconstruct the property.
Smith-Herman explained that to be eligible for RSP and RREM
grants, an applicant must have owned or occupied the damaged
property at the time of the storm, and sustained at least $8000
of storm-related property damage or had evidence that at least one
foot of flood-water had penetrated the first floor of the property.
Furthermore, to qualify for a RREM grant, an applicant cannot earn
more than $250,000 a year and must register the damaged property
as their primary residence with the Federal Emergency Management
Agency (FEMA). The applicant is required to establish that the
damaged property was his or her primary residence at the time of
storm.
To satisfy this "primary residence" requirement, the DCA
requires three types of documentary evidence: a "2012 tax return,
voter registration[,] and a New Jersey driver's license." If an
applicant does not have these three documents as proof, the DCA
may accept alternative forms of documentation, on a case-by-case
basis. For example, Smith-Herman testified that the DCA has
accepted a form 1099R from the New Jersey Division of Pension and
Benefits for the year 2012.
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Here, Smith-Herman testified that the DCA found appellant's
Toms River house was not his primary residence during Sandy based
on the following evidence: (1) appellant listed an apartment
located on Adams Street in Hoboken as his address on his New Jersey
driver's license; (2) his tax returns for the years 2010 through
2013 listed the Hoboken address as his primary residence; and (3)
appellant is registered to vote in Hoboken. Furthermore, appellant
has changed the address on his New Jersey driver's license twice:
the first time was in February 2014, when he changed it from the
Hoboken address to a Tinton Falls address; the second time was in
December 2014, when he changed it from the Tinton Falls address
back to the Hoboken address.
Finally, to qualify for a Residential Energy Credit,
appellant identified the Hoboken apartment as his "main home" on
his 2011 federal-tax return, a document he signed under oath and
submitted to the Internal Revenue Service. Smith-Herman also
testified that appellant listed the Hoboken address on his form
1099R for the New Jersey Division of Pension Benefits. Although
appellant received a Homestead Property Tax rebate for the Toms
River address in 2011, Smith-Herman explained that this is not the
type of documentation the DCA considers as proof of primary
residence, especially in a case such as this, where there is strong
countervailing evidence establishing otherwise.
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The record before the ALJ also contains proof that appellant's
property tax bills for the Toms River property were sent to him
at the Hoboken address. Considering the amount of competent
evidence establishing that appellant's primary residence on
October 29, 2012 was in Hoboken, balanced against appellant's
failure to produce acceptable documentation to prove that his
primary residence was his house in Toms River, the DCA determined
that appellant was not eligible for either the RREM or RSP grant
programs.
Appellant testified that he and his former wife purchased the
Toms River property on August 18, 2004, to use as a second house
during the summer months. In June 2005, appellant suffered a
"double stroke" that left him temporarily unable to speak, walk,
eat, or even drink. Thereafter, he moved into his mother's
apartment in Hoboken so she could be his primary caregiver. During
this period of recovery from the strokes, he relied on his mother
"and several close friends in Hoboken." When asked how long he
relied on his "mother's assistance," appellant responded: "[T]wo
to three years." Appellant was employed as a police officer in
Hoboken during a significant part of the time he alleged he was
residing with his mother to recover from the "double stroke." As
he explained:
8 A-0712-15T4
Q. What happened after your illness with your
career?
A. Well, I was out on sick leave for a year
after the stroke, but since there were no
major improvements with my balance and my
vision I was forced to retire early from the
police . . . force.
He eventually retired from the Hoboken Police Department.
Approximately four years after his stroke, appellant became the
sole owner of the Toms River house. This came about through a
Property Settlement Agreement (PSA) appellant and his former wife
negotiated and signed to equitably distribute the marital estate.
The PSA was part of the Final Judgment of Divorce dated February
25, 2009.
Appellant also called as witnesses Dennis Whalen, who owns a
house in Toms River near appellant's property, Betsy Rivera, who
testified she was appellant's girlfriend, and his mother Patricia
Maione. These three witnesses supported appellant's claim that
his primary residence when Sandy struck the Jersey shore was the
Toms River property. Whalen testified that he saw appellant on a
regular basis for at least five years; he remembered seeing him
"[a]ll the time" the month before Sandy. Rivera testified that
when she met appellant in 2009, his primary residence was the Toms
River house. Appellant's mother testified that by 2009, appellant
had begun his transition to live in Toms River. She claimed that
9 A-0712-15T4
appellant chose not to change many of the billing addresses from
the Hoboken address to the Toms River address because he still had
stroke-related mobility problems and was concerned about walking
to the mailbox in Toms River during inclement weather. She also
testified he was no longer receiving mail in Hoboken around the
time Sandy struck because he was not living with her. Appellant
also presented a series of documents addressed to him at the Toms
River address around the time of the storm.
In her Initial Decision issued on August 31, 2015, the ALJ
found the DCA established that appellant did not qualify for the
RREM and RSP grant programs because the Toms River house was not
his primary residence during the storm. Although she was inclined
to believe the testimony that appellant resided at the Toms River
house full-time at the time of the storm, "the documentation
supporting that claim [came] down to a statement to FEMA and a
Homestead Rebate." By contrast, the ALJ particularly noted that
appellant's 2011 income tax return, "which was filed on March 22,
2012, claimed a Nonbusiness Energy Property Credit for
improvements he made to his 'main home' at . . . Adams Street" in
Hoboken.
After considering all of the evidence presented by the
parties, the ALJ concluded:
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[Appellant]'s situation is sympathetic, and
there is an argument that he is a disabled
person who got in the habit of relying on his
mother after his strokes, such that all the
documentation pointing to [the Hoboken
address] should be discounted. But the
documentation pointing to Toms River is
extraordinarily thin[,] essentially just a
Homestead Rebate and a statement to FEMA.
Even the homeowner insurance policy in 2012
did not require primary residence. And more
important, in March 2012 he made a declaration
of primary residence to the federal government
and took a 2011 tax credit based on that
declaration, which stated that the [Hoboken
address] was his primary home. No
documentation supports any substantial change
between 2011 and 2012. Therefore, based on
the documentation, I conclude that the [DCA]
has met its burden in demonstrating that
[appellant] did not qualify for the
Resettlement Program grant, such that it must
be returned. Additionally, I conclude that
[appellant] has not proved eligibility for the
RREM Program.
[(Emphasis added).]
On October 15, 2015, DCA Commissioner Charles A. Richman adopted
the ALJ's Initial Decision as his Final Decision.
Appellant now argues before this court that the
Commissioner's decision, accepting without modification the ALJ's
finding that the Toms River house was not his primary residence,
was arbitrary and capricious. Appellant argues the Commissioner
should have considered and applied the common law concept of
domicile in making this determination. Appellant claims that he
11 A-0712-15T4
established that the Toms River house was his domicile, thus
proving that the Toms River address was his primary residence.
Our standard of review of final decisions of State
administrative agencies is well-settled. The "final determination
of an administrative agency . . . is entitled to substantial
deference." In re Eastwick Coll. LPN-to RN Bridge Program,
225 N.J. 533, 541 (2016). An appellate court may only reverse if
the decision of the administrative agency is "'arbitrary,
capricious, or unreasonable,' the determination 'violate[s]
express or implied legislative policies,' the agency's action
offends the United States Constitution or the State Constitution,
or 'the findings on which [the decision] was based were not
supported by substantial, credible evidence in the record.'" Ibid.
(alterations in original) (quoting Univ. Cottage Club of Princeton
N.J. Corp v. N.J. Dep't of Envtl. Prot., 191 N.J. 38, 48 (2007)).
"The burden of demonstrating that the agency's action was
arbitrary, capricious, or unreasonable rests upon the person
challenging the administrative action." In re Arenas, 385 N.J.
Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J. 219
(2006).
Moreover, this court will "defer to an agency's
interpretation of . . . [a] regulation, within the sphere of [its]
authority, unless the interpretation is 'plainly unreasonable.'"
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U.S. Bank, N.A. v. Hough, 210 N.J. 187, 200 (2012) (alterations
in original) (quoting In re Election Law Enforcement Comm'n
Advisory Op. No. 01-2008, 201 N.J. 254, 262 (2010)). However, an
appellate court is not "relegated to a mere rubberstamp of agency
action," but rather must "engage in a 'careful and principled
consideration of the agency record and findings.'" Williams v.
Dep't of Corr., 330 N.J. Super. 197, 204 (App. Div. 2000)
(citations omitted).
We reject appellant's arguments and affirm substantially for
the reasons expressed by the ALJ, as adopted by the Commissioner
of Department of Community Affairs as his Final Decision in this
case. R. 2:11-3(e)(1)(D). We add only the following brief
comments. Appellant's argument attacking the approach employed
by the ALJ and adopted by the Commissioner in determining what
constitutes "primary residence" for determining who is eligible
to receive a grant under RREM and RSP is not only without merit,
it would lead to needless uncertainty and undermine the sound
administration of these relief programs.
The Sandy-related grants at issue here were created to assist
a class of property owners whose "primary residence" was damaged
or destroyed by this "superstorm." The grant applications
contained a list of specific documents that the DCA uses to make
these critical eligibility determinations. The public policy
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underpinning these relief programs is to provide financial
assistance to a particular class of homeowners in a straightforward
manner.
Appellant urges us to reject this straightforward approach
established by the DCA and rely instead on the common law concept
of "domicile." In our view, this would seriously compromise the
essential purpose of these relief programs. It would require
applicants to retain lawyers to research how the common law concept
of "domicile" can be applied in this context. In response, the
DCA would need to assign an equal number of lawyers to review each
application to ensure it conforms to this legal standard. Such
an approach would sink these salutary programs in a quagmire of
ambiguity and divert public resources to pay lawyers, instead of
carpenters, masons, and plumbers.
Affirmed.
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NEW JERSEY DEPARTMENT OF COMMUNITY AFFAIRS VS. JOSEPH MAIONE (DEPARTMENT OF COMMUNITY AFFAIRS)
Court: New Jersey Superior Court Appellate Division
Date filed: 2018-08-23
Citations: 192 A.3d 37, 456 N.J. Super. 146
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