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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0921-15T4
ZAKIR HOSSAIN,
Petitioner-Appellant,
v.
DEPARTMENT OF COMMUNITY
AFFAIRS HURRICANE
SANDY DIVISION,
Respondent-Respondent.
____________________________
Submitted May 4, 2017 – Decided August 9, 2017
Before Judges O'Connor and Whipple.
On appeal from the New Jersey Department of
Community Affairs, Docket No. 0009245.
Keith T. Smith, attorney for appellant.
Christopher S. Porrino, Attorney General,
attorney for respondent (Melissa H. Raksa,
Assistant Attorney General, of counsel;
Valentina M. DiPippo, Deputy Attorney
General, on the brief).
PER CURIAM
Petitioner Zakir Hossain appeals from the final agency
decision of respondent Department of Community Affairs (DCA),
which adopted the initial decision of an Administrative Law
Judge (ALJ) pursuant to N.J.S.A. 52:14B-10(c). The ALJ
determined petitioner was ineligible to receive grant money from
the DCA for damage caused by Superstorm Sandy to a residence
petitioner owned, because the residence was not his primary one.
We remand for further proceedings.
I
Following Superstorm Sandy, petitioner applied for and
received a $10,000 grant from the DCA for one of the two
residences he owned. At the time, the DCA assumed the damaged
residence was petitioner's primary one. Thereafter, the DCA
checked the information petitioner provided when he applied for
the grant. The DCA determined the residence was not
petitioner's primary one and deemed him ineligible for the
grant. The DCA demanded petitioner return the grant money.
Petitioner appealed that determination and the matter was
transferred to the Office of Administrative Law as a contested
matter.
The salient evidence adduced at the hearing held before the
ALJ was as follows. Petitioner testified he purchased a
residence on Pacific Avenue in Atlantic City (Pacific residence)
in 2001, and purchased a second residence on Fairmount Avenue
(Fairmount residence), also in Atlantic City, in 2005.
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Petitioner lived in the Pacific residence with his wife and
children until 2012; meanwhile, he rented out the Fairmount
residence after acquiring it in 2005.
In June 2012, petitioner and his wife separated, and he
moved into the Fairmount residence with his tenant. Petitioner
reduced the rent the tenant was required to pay because he was
sharing the premises with petitioner. When he moved out of the
marital home, petitioner did not remove all of his belongings,
and did not change his mailing address or update his driver's
license to show he was residing at the Fairmount residence. The
day Superstorm Sandy struck on October 29, 2012, petitioner, his
wife, and children evacuated Atlantic City together.
Thereafter, petitioner resumed living with his wife and children
in the Pacific residence.
Petitioner testified he applied for and received the
subject grant from the DCA because of damage to the Fairmount
residence; he did not seek assistance on the ground the Pacific
residence sustained damage. The DCA then advised it had
determined the Fairmount property was not his primary residence
and demanded the return of the grant money.
The record reveals the DCA's reasons for concluding the
Fairmount residence was not petitioner's primary one were that,
while living at such residence, petitioner's driver's license
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and voter registration records reflected he was living at the
Pacific residence, and the property tax bills for the Fairmount
residence were being sent to the Pacific residence.
Following the hearing, the ALJ noted the eligibility
criteria for the subject grant are found in the Policy and
Procedure manuals for the Resettlement Program (RSP) and the
Renovation, Reconstruction, Elevation and Mitigation Program
(RREM), the relief programs that administer the award of grant
money for victims of Superstorm Sandy. The ALJ cited language
from the manuals stating eligibility for a grant requires an
applicant to have owned and occupied the property that is the
subject of the application as his or her primary residence on
the date of the storm, and that second homes, vacation homes,
and rental properties did not qualify. See RSP Policies &
Procedures, Sections 2.1 and 4.1, http://www.renewjerseystronger
.org/wp-content/uploads/2014/09/Resettlement_Program_Principal_P
olicies_and-Procedures-0214.pdf (last modified July 29, 2013);
RREM Policies & Procedures, Section 1.3, http://www.renewjerseys
tronger.org/wp-content/upds/upds/2017/014/Reconstruction-
Rehabilitation-Elevation-and-Mitigation-RREM-Program-Policies-
Procdures.pdf (last modified April 1, 2017).
The ALJ then determined there was no evidence the Fairmount
residence was petitioner's primary one because, when he resided
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at such residence, petitioner failed to change his driver's
license and mailing address to reflect his change in residence.
Without citing any legal authority, the ALJ concluded these
omissions revealed petitioner's belief the marital separation
was not permanent and, thus, established the Fairmount residence
was not his primary one. The ALJ stated:
He was engaged in a marital dispute with his
wife and temporarily moved from the martial
home. Nothing in his conduct indicated
intent to render the separation permanent,
and indeed, the separation lasted only until
immediately after Superstorm Sandy, at which
time petitioner returned to his family at
[the Pacific residence].
Petitioner's situation at the time of
Superstorm Sandy was no different from a man
who leaves his wife and move[s] into a
motel. The mere act of renting a motel room
would not by itself establish residence in
the motel. Petitioner's situation is
identical. Instead of moving into a motel,
he took a room with his tenant at [the
Fairmount residence]. That action by itself
did not establish permanent residence.
II
On appeal, petitioner argues: (1) the Fairmount residence
was his primary one at the time of the storm; (2) as a
domiciliary of Atlantic City at the time of the storm, he should
be afforded benefits; and (3) he should be permitted to amend
his application at this time to state the Pacific residence was
his primary one at the time of the storm.
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The second and third arguments were not raised before the
agency, not to mention decided, and thus we decline to address
them. "Generally, an appellate court will not consider issues,
even constitutional ones, which were not raised below." State
v. Galicia, 210 N.J. 364, 383 (2012). Even if this issue had
been raised, the ALJ did not address this question in his
opinion and, thus, we decline to do so in the first instance.
Duddy v. Gov't Emps. Ins. Co., 421 N.J. Super. 214, 221 (App.
Div. 2011).
An appellate court defers to an administrative agency's
findings of fact if supported by substantial credible evidence
in the record. See In re Herrmann, 192 N.J. 19, 27-28 (2007).
However, we are not bound by an agency's determination of a
strictly legal issue. Norfolk S. Ry. Co. v. Intermodal Props.,
LLC, 215 N.J. 142, 165 (2013). Thus, to the extent an agency's
determination constitutes a legal conclusion, we review it de
novo.
The ALJ accurately summarized the provisions in the RSP and
RREM programs addressing residency. See RSP Policies &
Procedures, supra, Sections 2.1 and 4.1; RREM Policies &
Procedures, supra, Section 1.3. These provisions do state that,
to be eligible for a grant, applicants must have owned and
occupied the subject property as their primary residence on the
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date of the storm, and that second homes, vacation homes, and
rental properties did not qualify as a primary residence. Ibid.
We note the RSP manual also addresses verification of
residency. Sections 4.2 and 4.3 of the RSP manual provide:
4.2. Verification of Primary Residence is
determined through evaluation of
multiple data sources and documents.
The preferred verification requires all
three of the following:
[1] Ownership of the property
must be verified as described in
Section 3.4.
[2] FEMA records must show that
the applicant reported to FEMA
that the property was the
applicant's primary residence at
the time of the storm.
[3] The applicant must present a
New Jersey driver's license or
New Jersey non-driver
identification card that
shows the damaged residence as
the address.
4.3. Alternative documentation will be
considered if primary residence cannot
be confirmed as described in [Section]
4.2.
Proof of ownership is required.
If an applicant is unable to provide a
New Jersey driver's license or non-
driver identification card or FEMA
records do not confirm primary
residence, the applicant must present
two of the following documents[:]
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[1] Government issued document sent
to the damaged residence[.]
[2] Voter Registration Card[.]
[3] Insurance documentation
indicating that the damaged address
is the applicant's primary residence.
[RSP Policies and Procedures, supra,
Sections 4.2 and 4.3.]
Here, although there is no question defendant owned the
Fairmount residence, there was no evidence (1) he reported to
FEMA the Fairmount property was his primary residence at the
time of the storm, and (2) his driver's license reflected the
address of the Fairmount residence. However, as stated in
Section 4.2, the production of this evidence is merely the
"preferred" method of establishing a residence is primary;
therefore, the production of this evidence is not the only
method. Moreover, the manual does not state the failure to
establish these three criteria is proof an applicant's residence
is not primary. In fact, this section states verification of a
primary residence is determined through the evaluation of
"multiple data sources and documents." RSP Policies and
Procedures, supra, Section 4.2.
Section 4.3 provides alternative documentation will be
"considered" if the applicant's primary residence cannot be
confirmed through the documents referenced in Section 4.2. Id.
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at Section 4.3. Petitioner failed to provide these documents as
well, specifically, a copy of a document issued by the
government that was sent to the Fairmount residence, a voter
registration card reflecting his address to be the Fairmount
one, and an insurance document indicating the Fairmount property
was his primary residence. However, the failure to produce any
of these documents also is not fatal to establishing the
Fairmount residence was his primary one. The documentation
referenced in Section 4.2 and 4.3 may well be probative of
whether a residence is an applicant's primary one, but the
failure to produce these documents does not conclusively
establish an applicant’s particular residence is not primary.
In our view, the ALJ was required to make findings on
whether the Fairmount residence constituted petitioner's primary
residence, and that required, at the outset, a determination of
what constitutes a "primary residence." Here, the ALJ
determined the Fairmount residence was not primary because some
of the documents listed in Sections 4.2 and 4.3 were not
produced. But, as we have observed, that omission on
petitioner’s part does not necessarily establish the Fairmount
residence was not his primary one.
The ALJ also determined petitioner's move from the marital
home was temporary because the petitioner did not exhibit any
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conduct indicating he believed the separation was permanent;
therefore, the ALJ concluded, the Fairmount residence was not a
primary one. However, the ALJ did not cite any authority for
the premise a person's subjective belief a move to a particular
residence is temporary establishes a person's residence is not
primary. Accordingly, we are constrained to remand for further
findings on what constitutes a "primary residence."
Remanded for further proceedings consistent with this
opinion. We do not retain jurisdiction.
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ZAKIR HOSSAIN VS. DEPARTMENT OF COMMUNITY AFFAIRS HURRICANE SANDY DIVISION(NEW JERSEY DEPARTMENT OF COMMUNITY AFFAIRS)
Combined Opinion