Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the DEPARTMENT OF COMMUNITY AFFAIRS, SANDY RECOVERY DIVISION v. ROBERT RUGGIERO -

NOT FOR PUBLICATION WITHOUT THE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-3604-15T1

DEPARTMENT OF COMMUNITY
AFFAIRS, SANDY RECOVERY
DIVISION,

        Petitioner-Respondent,

v.

ROBERT RUGGIERO,

     Respondent-Appellant.
____________________________

              Argued July 11, 2017 – Decided November 8, 2017

              Before Judges Nugent and Accurso.

              On appeal from the Department of Community
              Affairs, Docket Nos. RSP0015504 and
              RRE0015496.

              Michael Confusione argued the cause for
              appellant (Hegge & Confusione, LLC,
              attorneys; Mr. Confusione, of counsel and on
              the brief).

              Cameryn J. Hinton, Deputy Attorney General,
              argued the cause for respondent (Christopher
              S. Porrino, Attorney General, attorney;
              Melissa Dutton Schaffer, Assistant Attorney
              General, of counsel; Ms. Hinton, on the
              brief).

PER CURIAM
    Robert Ruggiero appeals from a final agency decision of the

Department of Community Affairs (DCA or Department) to recoup

previously-allocated grant funds from two Sandy-related

programs: the Homeowner Resettlement Program and the Renovation,

Reconstruction, Elevation and Mitigation Program.   Because we

agree with the DCA that Ruggiero did not meet the eligibility

requirements for either program, we affirm.

    Following Superstorm Sandy, the United States Department of

Housing and Urban Development allocated Community Block Grant

Disaster Recovery funds to assist property owners who sustained

damage from the storm.   Allocations, Common Application,

Waivers, and Alternative Requirements for Grantees Receiving

Community Development Block Grant (CDBG) Disaster Recovery Funds

in Response to Hurricane Sandy, 
78 Fed. Reg. 14329, 14329-31

(March 5, 2013).   The DCA administers the program in New Jersey.

    Through the Homeowner Resettlement Program, the government

offered grants to affected homeowners for "any non-construction

purpose that assists the homeowner to remain in the county in

which they lived at the time of the storm."   Department of

Community Affairs, Sandy Recovery Division, Resettlement Program

Policy, No. 2.10.35, at 3 (August 2015),

http://www.renewjerseystronger.org/wp-

content/uploads/2014/09/Resettlement-Program-Policies-and-

                                2                           A-3604-15T1
Procedures.pdf. In order to receive a grant of up to $10,000, an

applicant was required to demonstrate:

         1. The damaged residence must be located in
         one of nine most impacted counties:
         Atlantic, Bergen, Cape May, Essex, Hudson,
         Middlesex, Monmouth, Ocean, or Union.

         2. At the time of the storm (October 29,
         2012), the damaged residence must have been
         owned and occupied by the applicant as the
         applicant’s primary residence.

         3. The applicant must have registered for
         FEMA assistance.

         4. The residence must have sustained
         damage, as a result of Superstorm Sandy, a
         Full Verified Loss (FVL) of at least $8,000
         or one foot or more of water on the first
         floor (as determined by FEMA, its sub-
         agencies or affiliates).

         [Ibid.]

    The Renovation, Reconstruction, Elevation and Mitigation

Program's purpose was to assist qualified homeowners to

"complete the necessary work to make their homes livable and

compliant with flood plain, environmental, and other State and

local requirements."   Department of Community Affairs, Sandy

Recovery Division, Reconstruction, Rehabilitation, Elevation and

Mitigation Program (RREM): Policies and Procedures, No. 2.10.36,

at 26 (April 2017), http://www.renewjerseystronger.org/wp-

content/uploads/2017/04/Reconstruction-Rehabilitation-Elevation-

and-Mitigation-RREM-Program-Policies-Procedures.pdf.   The

                                3                            A-3604-15T1
qualifications for this program are nearly identical to those of

the Resettlement Program, with the added requirement that a

recipient have an adjusted household gross annual income of less

than $250,000.    Id. at 28.

    Ruggiero applied for grants from both programs in June

2013, representing the home he owned in Manahawkin was his

primary residence at the time of the storm.      Based on his

representations, he was awarded a $10,000 Resettlement grant in

August 2013 and a $75,000 Reconstruction grant in June 2014.

Ruggiero executed a Promissory Note and a Homeowner's Grant

Agreement for each grant before the funds were disbursed to him.

In March 2015, the DCA advised Ruggiero that a review of his

applications revealed the Manahawkin home was not his primary

residence at the time of the storm, making him ineligible for

the grant funds he had received.      The DCA asked Ruggiero to void

the checks or return the funds.

    Ruggiero timely appealed the DCA's ineligibility

determination, and it was transmitted to the Office of

Administrative Law (OAL) to be heard as a contested case.         At

the hearing before the Administrative Law Judge (ALJ), a

representative of the Department testified that Ruggiero

appeared initially to meet the eligibility criteria for the

grant programs.   But because Ruggiero had correspondence with

                                  4                             A-3604-15T1
the Department sent to an address in Wayne, the Department

undertook a review to verify his primary address.

    In the course of that investigation, the Department's

witness learned that at the time of the storm, Ruggiero's

driver's license listed his address in Wayne, not Manahawkin.

Ruggiero's 2012 through 2014 federal tax returns also reflected

the Wayne address, as did Ruggiero's 2012 boat registration.      He

was registered to vote in Essex County.   The tax bill for the

Manahawkin property was sent to the Wayne address.   Information

from Ruggiero's property insurer revealed that the Manahawkin

property was insured as a primary residence, as did a home

equity loan, although no information was provided as to when

that loan was made.   Ruggiero also received a Homestead Tax

Benefit for 2012 for his Manahawkin home, notwithstanding his

address of record reflected the Wayne address.

    After reviewing that evidence, the Department concluded the

Manahawkin address was not Ruggiero's primary residence as of

the time of the storm.   The witness testified the most

significant of the proofs, the driver's license and voter

registration, did not reflect the Manahawkin address at the time

of the storm.   The bank loan was not specific as to time, and

the Homestead Benefit account was not enough to outweigh other



                                5                           A-3604-15T1
evidence that Ruggiero's primary residence was in Wayne at the

time of the storm.

    Ruggiero testified that he and his wife purchased the

Manahawkin house in 1999 to use as their shore house.   When his

wife retired in 2007, she began residing there for 185 days a

year, from April through November when they closed the house for

the winter.   Ruggiero continued to work in Lyndhurst and live in

the couple's mobile home on a leased plot in Wayne during the

week.   During the months the shore house was open, he would come

down on Friday night and return to Wayne on Sunday evening.       The

couple lived in Wayne from December through April.

    Ruggiero testified he used H&R Block software to prepare

his taxes and understood from the instructions that he could

declare the Manahawkin house his primary residence so long as

either he or his wife lived there for the majority of the year.

He explained he did all his paperwork and paid all his bills

from Wayne because that was where his computer was located.

    Although admitting the facts testified to by the DCA

witness were correct, Ruggiero testified that he and his wife

intended to make the Manahawkin home their primary address since

2007, and believed they had done so.   He testified he was

unaware of the requirement to change the address on his driver's

license, and that he and his wife only did so in 2013 when

                                6                            A-3604-15T1
someone from the Department suggested it.   Mrs. Ruggiero

testified the couple was always clear that their mailing address

was in Wayne, and would have done things differently had the

State told them in the beginning they did not qualify for the

grant money.

    After hearing the testimony and reviewing the documents

submitted by the parties, ALJ Susan Scarola concluded the DCA

proved by a preponderance of the credible evidence and in

accordance with the Program Guidelines that Ruggiero's primary

residence was not in Manahawkin.    She found Ruggiero and his

wife credible witnesses, and accepted their testimony that he

lived in Wayne during the week and spent weekends with her in

Manahawkin during the months the house was open.

    The ALJ also accepted the DCA's position that the issue

before her was not whether Ruggiero had tried to defraud the

Program but whether he was eligible for the grants under the

Program Guidelines.   She acknowledged the Promissory Notes

Ruggiero executed provided his representations as to his primary

residence were material, had been relied on by the State in

determining his eligibility to receive the grant funds, and if

intentionally or willfully false or fraudulent would allow the

State to declare a default and file an action in the Superior

Court to recover the payments, as well as attorney's fees and

                                7                           A-3604-15T1
costs.   She also noted the Promissory Notes further provided

that the agreement was governed by New Jersey law, and that any

lawsuits of any nature pertaining to the agreements were to be

brought in the Superior Court in Mercer County.

    The ALJ noted, however, that the DCA did not contend

Ruggiero intentionally or willfully made false representations

as to his primary residence.   Instead, the Department contended

Ruggiero would not be eligible for the Program if his primary

residence were in Passaic rather than Ocean County.      The

Department asserted its power to make an administrative

determination as to Ruggiero's eligibility, which he could have

reviewed in the OAL.   The ALJ agreed that eligibility

determinations were properly in the agency and "where it is

alleged that an unintentional misrepresentation led to a grant

payment by mistake," review in the OAL was appropriate.

    Reviewing the Guidelines for eligibility under the

Resettlement Program, that ALJ noted that as to primary

residence, the Guidelines provide:

          4. Occupancy as Primary Residence.

          4.1. Applicants must have occupied the
          property as their primary residence on the
          date of the storm. Second homes, vacation
          homes and rental properties do not qualify
          an applicant for a Resettlement Grant.



                                8                              A-3604-15T1
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:

    Ownership of the property must be
    verified as described in Section 3.4.

    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.

    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 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

    Government issued document sent to the
    damaged residence

    Voter Registration Card

    Insurance documentation indicating that
    the damaged address is the applicant’s
    primary residence.

Other documentation offered by the applicant
may be considered on a case-by-case basis.

[No. 2.10.35, supra, at 6.]




                     9                         A-3604-15T1
    The Guidelines for determining primary-residence

eligibility for the Renovation, Reconstruction, Elevation and

Mitigation Program are similar and provide as follows:

         3.4 Primary Residence

         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.

         Verification of primary residence is
         determined through evaluation of multiple
         data sources and documents. The preferred
         verification requires all three of the
         following:

              Ownership of the property must be
              confirmed as described in Section 3.3.

              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.

              The applicant must present a New Jersey
              driver's license or New Jersey non-
              driver identification card dated prior
              to the date of the storm which shows
              the damaged residence as the
              applicant's address.

         Alternative documentation will be considered
         if primary residence cannot be confirmed as
         above. If an applicant is unable to provide
         New Jersey identification (driver's license
         or non-driver identification card) or if
         FEMA records do not confirm primary
         residence, the applicant must present the
         following documents as verification of proof
         of primary residence:


                              10                         A-3604-15T1
               Federal tax return document indicating
               damaged residence is primary residence,
               and Voter registration card showing the
               damaged residence.

           [No. 2.10.36, supra, at 63.]

    Applying the Program Guidelines to the undisputed facts,

the ALJ found it clear Ruggiero could not establish his

Manahawkin home was his primary residence on the date of the

storm.   As of October 29, 2012, Ruggiero's driver's license

listed his Wayne address; he was registered to vote in Essex

County; tax bills for the Manahawkin property were sent to

Wayne; and the couple's federal returns carried their Wayne

address.   Although the ALJ noted Ruggiero's homeowner's carrier

insured the Manahawkin property as his primary residence, she

noted it is the only real property Ruggiero owned, and thus

could not be considered dispositive under the Guidelines.

    The ALJ noted that unlike domicile, which "requires

presence, intention to remain and abandonment of previous

domicile," see In re Settlement of Accounts of Unanue, 
255 N.J.

Super. 362, 376 (Law Div. 1991), aff'd, 
311 N.J. Super. 589

(App. Div.), certif. denied, 
157 N.J. 541 (1998), cert. denied

sub. nom., Unanue-Casal v. Goya Foods, Inc., 
526 U.S. 1051, 
119 S. Ct. 1357, 
143 L. Ed. 2d 518 (1999), the Sandy Program

Guidelines rely on a definition of primary residence that


                               11                           A-3604-15T1
requires "documentary proof, preferably from a government

agency, to prove 'primary residence.'"    She noted that "nowhere

is intention listed as a factor for proving primary residency,"

and surmised that this is presumably "so that assistance can be

provided to those whose primary residency is supported by

physical presence on the date of the storm supported by official

documentation and other objective evidence, and not only by a

subjective intention."    The ALJ concluded that "[t]he

Resettlement and [Renovation, Reconstruction, Elevation and

Mitigation] programs require more than time and intention to

prove primary residence; they require documentation, which is

absent in this matter."   The DCA issued a final decision

adopting ALJ Scarola's decision in its entirety.

    Ruggiero appeals, arguing the DCA's decision contravenes

New Jersey law and lacks fair support in the record, that the

OAL did not have jurisdiction to hear the case, the ALJ

misapplied the test for primary residency, the grant agreements

do not provide for the remedy granted to the DCA and the ALJ did

not apply New Jersey law as to when a mistake can provide relief

to one party to a contract.   We reject those arguments.

    We agree with the ALJ that the question presented was one

of initial eligibility for receipt of the grant funds in

accordance with the terms of the Programs and not breach of the

                                12                          A-3604-15T1
grant agreements, making jurisdiction in the agency, and not the

Superior Court, appropriate.    There is no dispute that Ruggiero

had no intent to defraud the Programs by asserting that his

Manahawkin shore house was his primary residence.    The ALJ found

Ruggiero and his wife sincere and credible witnesses, who had no

intent to take grant funds to which they were not entitled.

     The DCA did not contend Ruggiero breached the grant

agreements by making intentional or willful misrepresentations

or misapplying the funds.    It maintained the agreements were

void ab initio because Ruggiero could not qualify for the grants

based on the Programs' definition of primary residence.      But the

fact that Ruggiero's representations were not willfully or

intentionally false does not deprive the DCA of the ability to

recoup the grant funds.1    The DCA has an appeals process

governing eligibility determinations under both the Homeowner

Resettlement and the Renovation, Reconstruction, Elevation and

Mitigation Programs.   See Department of Community Affairs, DCA


1
  It does, however, deprive the Department from recovering its
fees and costs for the effort. The remedy of fees and costs is
provided only in the grant agreements, which we agree with the
DCA were void ab initio on the facts presented. See Department
of Community Affairs, Grant Reconciliation Policy, No. 2.10.90,
at 3 (April 2016) (providing that "[n]o interest, fees, or charges
will be assessed" for any recapture agreement payment plan).
Accordingly, we disagree with the ALJ to the extent her opinion
could be read to suggest the Department could recover its fees
and costs in recouping the funds based on the grant agreements.

                                 13                          A-3604-15T1
Appeals Process, No. 2.10.7, (March 2015),

http://www.renewjerseystronger.org/wp-content/uploads/2014/09/2-

10-7-DCA-Appeal-Process-Revised-March-2015.pdf.    Given that

Ruggiero availed himself of the DCA's established appeals

process and does not claim he was deprived of any due process

right, we reject his challenge to the agency's jurisdiction to

determine and resolve eligibility disputes under the Sandy grant

programs pursuant to the Administrative Procedure Act, 
N.J.S.A.

52:14B-1 to -31.

    We likewise reject Ruggiero's arguments the ALJ misapplied

the test for primary residency and that her decision lacks fair

support in the record.    Ruggiero's argument that the ALJ should

have applied general New Jersey law as to the meaning of

"primary residence" as opposed to the Program Policies and

Procedures governing the Grant Programs is without merit.

Ruggiero applied for federal grant funds made available only on

proof of eligibility in accordance with the terms of the

Programs.    He cannot substitute another definition of primary

residence for the one included in the Programs for which he

applied.    As the record establishes that Ruggiero lacked a

driver's license, voter registration card or a federal tax

return document listing the Manahawkin property as his home

address as of October 29, 2012, he could not establish that he

                                14                          A-3604-15T1
occupied the property as his primary residence on the date of

the storm in accordance with the Program Guidelines.

    Finally, we reject Ruggiero's argument that a mistake by

the DCA in determining his eligibility and disbursing the grant

funds does not entitle the DCA to recoup the money.    The

Programs' "Recapture – Write Off Policy" plainly permits

recovery of funds incorrectly awarded to an applicant later

determined to be ineligible.    See Department of Community

Affairs, Recapture – Write off Policy, No. 2.10.43, at 1

(September 13, 2013).

    We agree with the ALJ that the Resettlement and Renovation,

Reconstruction, Elevation and Mitigation Programs "were

established by the State under federal guidelines and were

designed to efficiently and expeditiously provide financial

assistance to those seriously affected by Superstorm Sandy."

The obvious need for the Department to provide qualified

applicants with the funds they needed to resettle and rebuild

their damaged homes as expeditiously as possible would almost

certainly result in some mistakes as to an applicant's

eligibility for the funds.     A more rigorous and searching

initial application process would as certainly have delayed

necessary funds to deserving applicants.    The Programs'

"Recapture – Write Off Policy" was designed to recover funds

                                 15                            A-3604-15T1
mistakenly "paid out to applicants who are later determined to

be ineligible."   Ibid.    Nothing in the Sandy Policies or New

Jersey law generally prohibits the recovery of federal grant

funds from Ruggiero under the circumstances presented.

    Because the record is clear Ruggiero did not meet the

eligibility requirements for the Resettlement and Renovation,

Reconstruction, Elevation and Mitigation Programs, we affirm,

essentially for the reasons expressed in ALJ Scarola's thorough

and thoughtful initial decision subsequently adopted by the

Commissioner of the DCA.

    Affirmed.




                                 16                         A-3604-15T1