SOUTH WASHINGTON AVENUE, LLC. v. TOWNSHIP OF PISCATAWAY -

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0646-09T3

SOUTH WASHINGTON AVENUE, LLC,

Petitioner,

and

LAURENCE HALPER,

Petitioner-Appellant,

v.

TOWNSHIP OF PISCATAWAY,

Respondent-Respondent.

________________________________

May 11, 2011

Argued: October 25, 2010 Decided:

BeforeJudges A.A. Rodr guezand C.L.Miniman.

On appeal from the Department of Community Affairs, Docket No. OCA-311-06.

Peter Dickson argued the cause for appellant (Potter and Dickson, attorneys; Mr. Dickson, on the briefs).

James F. Clarkin, III, argued the cause for respondent Township of Piscataway (Clarkin & Vignuolo, P.C., attorneys; Mr. Clarkin and Peter A. Vignuolo, of counsel and on the brief).

Paula T. Dow, Attorney General, attorney for respondent Department of Community Affairs (Jonathan J. Greenberg, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Petitioner Laurence Halper appeals from final administra tive action of the Department of Community Affairs (DCA) denying his motion for reconsideration of earlier final agency action. In the earlier action, the DCA adopted an order of the Office of Administrative Law (OAL) dismissing petitioner's claim against respondent Township of Piscataway (Township) for relocation expenses in connection with the removal of organic top soil from petitioner's condemned property.

Petitioner had at one time lived and conducted farming oper ations on a seventy-five acre farm owned by him and other members of his extended family.1 The Township filed a condemna tion complaint in December 1999 after failed negotiations with the farm's owners. Twp. of Piscataway v. S. Washington Ave., LLC, 400 N.J. Super. 358, 363 (App. Div. 2008). We affirmed the Township's right to condemn the property. Id. at 363, 370. However, while that appeal was pending, the New Jersey Supreme Court "ordered that the stay of the judgment would expire . . . on July 10, 2006, by which time the Halpers were to have left the property." Id. at 365.

On January 4, 2006, the DCA approved an amended Workable Relocation Assistance Plan (WRAP) submitted by the Township. Under that plan, petitioner would receive $68,060 for relocation of his farming operation and $10,329 for relocation of his residence. In February 2006, petitioner sought relocation assistance from the Township based on three estimates for the cost of relocating his farming operations. Those estimates, which included the cost of moving organic top soil, were approximately ten times the amount of assistance in the approved WRAP. The Township denied this request for an increased WRAP.

On February 27, 2006, petitioner submitted an appeal to the DCA challenging the Township's refusal to pay for the relocation of organic top soil. The DCA referred the matter to the OAL as a contested case. Several months later, petitioner requested relocation assistance for a self-move but, on June 7, 2006 the Township responded that it would not provide any assistance at that time because petitioner was challenging the condemnation. On June 9, 2006, petitioner sought to amend his appeal to include the Township's refusal to provide any assistance at all while the condemnation action was being disputed.

The matter was placed on inactive status for several months at the request of both parties during the summer of 2006. Thereafter, there were several adjournments, settlement efforts were undertaken, and petitioner unsuccessfully requested emergent relief. During this time, there were several changes in petitioner's counsel. One of petitioner's attorneys informed the Administrative Law Judge (ALJ) on October 24, 2008, that he had advised petitioner that he was withdrawing because of "a fundamental disagreement with regard to the actions that should be taken in order to reach a reasonable outcome in this case and the manner we should go about it." The attorney also requested an adjournment of an October 31, 2008, hearing date.

Several days later, the ALJ sent a letter directly to peti tioner granting the adjournment and asking him to promptly advise whether he was seeking new counsel or proceeding pro se. The ALJ stated that the matter would be scheduled on her next available date if she did not hear from petitioner by November 10, 2008.

Petitioner sent a facsimile to the ALJ on November 10, 2008, stating that he had been unable to reach his attorney to discuss rescheduling the hearing and would advise the ALJ as soon as he was able to do so. The attorney clarified his with drawal in a letter sent to petitioner the next day. In that letter, the attorney asked petitioner to let his office know whether he was seeking substitute counsel or proceeding pro se to allow for the timely and appropriate transfer of his file.

On November 25, 2008, the OAL sent a notice directly to petitioner advising that the hearing was scheduled to begin on April 2, 2009. In addition, the ALJ sent petitioner a letter on March 24, 2009, to remind him of the April 2, 2009, hearing date and again sought confirmation regarding whether he would act pro se. Petitioner did not respond, and on April 3 the ALJ dismissed his petition.

The ALJ's initial decision dismissing the appeal for fail ure to appear stated that exceptions to the decision must be filed with the Commissioner within thirteen days of the date of mailing, which was April 7, 2009. Petitioner filed no exceptions. On May 18, 2009, the DCA Commissioner issued a final decision adopting the initial decision "pursuant to [the] 45 day rule." The final decision was mailed directly to petitioner with a cover letter advising that any appeal must be filed within forty-five days. The return receipt card indicates that the final decision was received by "S. Halper" on May 21, 2009.

Petitioner's new law firm wrote to the DCA on July 22, 2009, requesting reinstatement of the petition. By that time, the forty-five days to appeal had expired. The new attorney claimed that petitioner's nonappearance was attributable to "confusion as to who was at that point representing [him] in this matter." The new attorney did not state when petitioner retained him except to suggest that it was after April 2, 2009. He claimed that there was continuing confusion after he was retained regarding whether his representation was limited to the Superior Court condemna tion proceedings. He also said that there was additional delay related to obtaining and reviewing the relocation assistance case file. However, the new attorney did not discuss, or even acknowledge, petitioner's failure to submit exceptions within thirteen days or his two-month delay in seeking reinstatement after the May 18, 2009, final deci sion was issued. The request was not supported by any affida vits or certifications.

The Township submitted a letter opposing reinstatement on August 12, 2009. On August 20, 2009, the DCA's Acting Commissioner issued an order declining to reconsider the final decision, which was mailed to the parties on August 26, 2009. In his order denying reconsideration, the Acting Commissioner stated that he had reviewed petitioner's submission and the Township's opposition, but he did not provide any reason for the denial. This appeal was filed on October 7, 2009.

Petitioner contends on appeal that the DCA's refusal to reinstate the relocation assistance proceeding was arbitrary and capricious and that there were lesser sanctions available. He asserts that, by so refusing, the DCA violated his due process rights.

The Township asserts that Petitioner was time barred from filing an appeal or seeking reconsideration, as the latter relief cannot be used to resurrect a time-barred appeal. In any event, reconsideration was not warranted, and petitioner's due process rights were not violated by the dismissal of his appeal from the WRAP award, which in event is still available to him.

The DCA points out that petitioner did not include the order adopting the ALJ order of dismissal in his notice of appeal. As a consequence, it urges that we have jurisdiction only over its refusal to reconsider its earlier final agency action.

The judicial role in reviewing decisions of administrative agencies is restricted to the following four inquiries:

(1) whether the agency's decision offends the State or Federal Constitution; (2) whether the agency's action violates express or implied legislative policies; (3) whether the record contains substantial evidence to support the findings on which the agency based its action; and (4) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.

[George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994).]

Accordingly, "[o]ur function is to determine whether the administrative action was arbitrary, capricious or unreasonable." Burris v. Police Dep't, W. Orange, 338 N.J. Super. 493, 496 (App. Div. 2001). The precise issue is whether the findings of the agency could have been reached on credible evidence in the record, "considering 'the proofs as a whole.'" Close v. Kordulak Bros., 44 N.J. 589, 599 (1965).

The burden of demonstrating that the agency's action was arbitrary, capricious, or unreasonable rests upon the person challenging the administrative action. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002); Barone v. Dep't of Human Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987).

After carefully reviewing the record in light of the written and oral arguments advanced by the parties, we conclude that the issues presented by petitioner are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(D), (E). In doing so, we note that "it is only the orders designated in the notice of appeal that are subject to the appeal process and review." W.H. Indus., Inc. v. Fundicao Balancins, Ltda, 397 N.J. Super. 455, 458 (App. Div. 2008). Thus, we may review only the denial of reconsideration.

Generally, reconsideration is only available when a decision is based on plainly incorrect reasoning or when evidence has been ignored. Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996). Neither is true here. Petitioner apparently just ignored the administrative proceedings despite having adequate notice of the hearing. Petitioner submitted no certification to the agency in support of reconsideration to rebut that inference from his lack of response to the ALJ. As such, there was nothing not even a lesser penalty to reconsider and thus no arbitrary, capricious, or unreasonable agency action in denying reconsideration.

1 Petitioner South Washington Avenue, LLC, was also one of the farm's owners but has not filed a brief on appeal.