IN THE MATTER OF ALAN LORING

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1591-11T4

IN THE MATTER OF ALAN LORING.

_______________________________

October 17, 2012

Argued October 1, 2012 - Decided

Before Judges Graves and Guadagno.

On appeal from the Department of Community Affairs.

Elias L. Schneider argued the cause for appellant Alan Loring.

Debra A. Allen, Deputy Attorney General, argued the cause for respondent, Department of Community Affairs (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Allen, on the brief).

PER CURIAM

Appellant Alan Loring appeals from the denial of his application to the Department of Community Affairs, Division of Housing (DCA), for an increase in his subsidy voucher from a one-bedroom allowance to a three-bedroom allowance. For the reasons that follow, we affirm.

Appellant is an adult male with various mental and physical disabilities. He is a participant in the Section 8 Housing Choice Voucher Program, a federal housing subsidy program established by the United States Department of Housing and Urban Development, pursuant to the United States Housing Act, 42 U.S.C.A. 1437 to 1437z-7, to assist low-income families with affordable housing.

As an adult with no spouse, children or dependents, appellant qualified for a housing benefits voucher for a one-bedroom housing unit. For several years he resided in a subsidized apartment, but living conditions deteriorated to the point where he had to relocate. In 2008, appellant's parents purchased a four-bedroom, two-story home for appellant to live in. To accommodate appellant's disabilities, DCA provided a waiver to permit appellant to use his one-bedroom voucher to pay his mother, as his "landlord," to subsidize the cost of the home.

After purchasing the home, appellant's parents realized that the costs associated with the home were more than they expected. In order to keep appellant in the home, Alan's mother, Susan Loring,1 applied on appellant's behalf to increase his rental assistance from a one-bedroom to a three-bedroom voucher. DCA denied the request and determined that appellant was only entitled to a voucher as a single household member. Susan, who was represented by counsel, appealed to the Office of Administrative Law.

The administrative law judge (ALJ) conducted a hearing where Susan and a DCA regulatory officer testified. After Susan purchased the home, she installed several costly repairs including a new roof, retaining wall, furnace and duct work. Susan realized that the maintenance and repair costs were more than she anticipated. She testified that the "only solution that [she] could think of [was] to ask for a higher voucher." Susan admitted that she knew before purchasing the home that Alan was only entitled to a one-bedroom voucher.

The ALJ found that Alan Loring failed to establish grounds for an exception based on his disability and concluded that Susan cannot correct her "misjudgment" in estimating the costs associated with the home by seeking an increase in Alan's subsidy level. The ALJ also noted that the application did not mention Alan's disability as a basis for seeking the upgraded voucher. The only evidence presented at the hearing relating to Alan's disability was that his therapist suggested that he live with a therapeutic rabbit. The ALJ found insufficient basis to justify additional living space and affirmed the DCA decision to deny the request to upgrade the voucher.

On June 10, 2011, DCA sent appellant's counsel a copy of the ALJ's decision dated November 18, 2010, and informed him that appellant's one-bedroom voucher would continue. On June 21, 2011, appellant filed a "Notice of Appeal and Request for Administrative Law Tribunal Hearing." He requested another administrative hearing to contest DCA's rejection of his request for a three-bedroom voucher. In a fax accompanying the notice, appellant's counsel explained:

The original appeal was denied because Alan Loring's mother was trying not to hurt his feelings by detailing his medical problems. That concern resulted in a technical denial and does not stop him from making a new application and supplying the medical documentation which would satisfy the concerns of the Administrative Law Judge.

In a letter dated November 2, 2011, a DCA hearing officer denied appellant's application, finding that it was not a "new" request for an exception but an attempt to have DCA reconsider the prior denial. The hearing officer noted that the additional materials provided by appellant were reviewed and, while they "more clearly describe Mr. Loring's issues, both mental and physical, there is nothing that supports the position that he is in need of a three bedroom voucher." It was also noted that Alan had already been granted an exception allowing him to use his one-bedroom subsidy to pay rent to his parents, and nothing in the newly-submitted materials establish that Alan's disabilities necessitate a larger residence.

On appeal, Alan does not challenge the merits of the denial of his application for a three-bedroom voucher. Rather, he seeks a remand "directly to DCA with instructions to consider the 2011 application as a new application, not an appeal of the 2010 rejection of similar relief." Even though his June 21, 2011 Notice of Appeal sought another administrative law hearing, he now seeks to "bypass the Office of Administrative Law and 'avoid a needless expenditure of judicial resources.'"

In support of his proposal, appellant cites State v. Hogue, 175 N.J. 578 (2003). In Hogue, a defendant convicted of murder moved before us for a limited remand to the trial court to have forensic samples taken from the murder victim tested for DNA. Id. at 578. Hogue argued that he had a different blood type than the sample found beneath the victim's fingernails and DNA testing would establish conclusively that the blood found on the victim belonged to a third party. Id. at 582. We denied Hogue's motion and our Supreme Court granted leave to file an interlocutory appeal. Ibid. The Court held that a limited remand was appropriate because the results of the DNA testing may resolve Hogue's appeal and concerns of basic fairness and the need to conserve judicial resources outweigh the consequences of a delay in the appeals process arising from the grant of a limited remand. Id. at 585.

Hogue is distinguishable. There, DNA testing was never requested at the trial level and Hogue was clearly entitled to that relief pursuant to N.J.S.A. 2A:84A-32a, enacted after his conviction, which permits "[a]ny person who was convicted of a crime and is currently serving a term of imprisonment" to make a motion for DNA testing. N.J.S.A. 2A:84A-32a(a).

Here, appellant has already received the relief he is asking us to direct. The hearing officer reviewed his entire supplemental submission and found nothing to justify the upgrade of housing benefits. Whether the hearing officer treated the application as newly filed or one for reconsideration of a prior decision is immaterial.

Appellant's argument that the "first rejection was on the technicality of his failure to provide proof of the disabilities," misreads the decision of the ALJ, which stated:

"[t]he undisputed credible evidence demonstrates that Alan Loring has not set forth sufficient grounds to justify increasing the subsidy standard for his voucher. His written request was based solely on his concern for assisting his mother to cover her expenses in maintaining the house, as his landlord."

The ALJ noted that "Susan Loring admitted that she assisted Alan in making the request because it was 'the only solution [she] could think of,' after realizing that her costs of maintaining the house were more than she anticipated."

Moreover, appellant's submission of his "Notice of Appeal and Request for a Law Tribunal Hearing" was, in fact, a request for reconsideration. It sought the same relief as the initial application and simply provided additional documentation regarding appellant's disability. There is a specific provision in the administrative code prohibiting an administrative law judge from reopening a matter after a decision. N.J.A.C. 1:1-18.5(b). However, there is no specific counterpart governing reconsideration by a hearing officer. See Mackler v. Board of Educ., 16 N.J. 362, 369 (1954); Padovano v. Borough of East Newark, 329 N.J. Super. 204, 217-218 (App. Div. 2000). It has long been settled that:

. . . administrative tribunals possess the inherent power of reconsideration of their judicial acts, except as qualified by statute. This function arises by necessary implication to serve the statutory policy

. . . . Barring statutory regulation, the power may be invoked by administrative agencies to serve the ends of essential justice and the policy of the law.

[Handlon v. Town of Belleville, 4 N.J. 99, 106-07 (1950).]

As the Court noted in Handlon, the power to reopen "cannot be denied except by legislative fiat; and there is none such here." Id. at 107.

Clearly, the hearing officer reviewed the materials in the supplemental submission and determined that nothing supported the position that appellant qualified for a three-bedroom voucher.

An administrative agency's ruling carries the presumption of correctness. Campbell v. New Jersey Racing Comm'n, 169 N.J. 579, 587 (2001). As long as the decision of the agency is based upon the admitted evidence and the inferences drawn from that evidence, we must affirm. Ibid. Moreover,

"[w]hen an administrative agency interprets and applies a statute it is charged with administering in a manner that is reasonable, not arbitrary or capricious, and not contrary to the evident purpose of the statute, that interpretation should be upheld, irrespective of how the forum court would interpret the same statute in the absence of regulatory history."

[Reck v. Dir., Div. of Taxation, 345 N.J. Super. 443, 448 (App. Div. 2001), aff'd, 175 N.J. 54 (2002) (quoting Blecker v. State, 323 N.J. Super. 434, 442 (App. Div. 1999).]

Applying that standard here, we conclude that there is sufficient credible evidence to support the determination that appellant is not entitled to upgraded subsidies. Appellant was not entitled to a second administrative hearing to re-litigate the same factual and legal issues.

We have carefully considered the additional points raised in appellant's brief and find they lack sufficient merit to warrant discussion in a written decision. R. 2:11-3(e)(1)(E).

Affirmed.

1 Although the case caption identifies Susan Loring as the petitioner, the holder of the voucher and the party in interest is Alan Loring. Alan authorized his mother to represent his interests due to his medical issues.