DEPARTMENT OF COMMUNITY AFFAIRS, SANDY RECOVERY DIVISION v. ERIK CARNEY
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4228-15T3
DEPARTMENT OF COMMUNITY
AFFAIRS, SANDY RECOVERY
DIVISION,
Petitioner-Respondent,
v.
ERIK CARNEY,
Respondent-Appellant,
and
ERIK CARNEY,
Petitioner-Appellant,
v.
DEPARTMENT OF COMMUNITY
AFFAIRS, SANDY RECOVERY DIVISION,
Respondent-Respondent.
__________________________________
Submitted January 17, 2018 – Decided February 1, 2018
Before Judges Leone and Mawla.
On appeal from the Department of Community
Affairs, Docket Nos. RSP0016854 and
RRE0016844.
Erik Carney, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney
for respondent (Melissa Dutton Schaffer,
Assistant Attorney General, of counsel;
Valentina M. DiPippo, Deputy Attorney General,
on the brief).
PER CURIAM
Petitioner Erik Carney appeals from an April 8, 2016 final
decision by the State Department of Community Affairs (DCA), which
adopted an initial decision by an Administrative Law Judge (ALJ)
following a hearing. Petitioner was determined to be ineligible
to receive funds from the Resettlement Program (RSP) and the
Reconstruction, Rehabilitation, Elevation, and Mitigation Program
(RREM) to rebuild his home following Superstorm Sandy. Petitioner
was ordered to return $10,000 he had received from the RSP. On
appeal, petitioner contends he proved the home was his primary
residence, and should have been permitted to keep the grant money.
We disagree and affirm.
The following facts are taken from the record. After
Superstorm Sandy, the United States Department of Housing and
Urban Development (HUD), through the Community Development Block
Grant, provided funds to the DCA, which allocated the funds to
programs, including the RSP and RREM, to assist New Jersey
residents affected by the storm. Specifically, the RSP provided
$10,000 grants to encourage eligible homeowners to remain in the
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county in which they resided at the time of the storm. The RREM
program provided grants up to $150,000 to assist those eligible
with reconstruction, rehabilitation, elevation, and mitigation of
their affected homes.
HUD through DCA approves the eligibility criteria for both
the RSP and the RREM program. Both programs require that the
damaged residence must have been owned and occupied by the
applicant at the time of the storm, October 29, 2012, as the
applicant's primary residence.1
Pursuant to the RSP, primary residency is established through
a public title search confirming ownership of the affected
property; "FEMA records must show the application reported to FEMA
that the property was the applicant's primary residence at the
time of the storm"; and the applicant must provide "a New Jersey
driver's license or New Jersey non-driver identification card that
shows the damaged residence as the address." RSP Policies &
Procedures 4.2.
1
N.J. Dep't of Cmty. Affairs, Resettlement Program (RSP) Policies
and Procedures 2.1 & 4.1 (2015),
http://www.renewjerseystronger.org/wp-
content/uploads/2014/09/Resettlement-Program-Policies-and-
Procedures.pdf ; N.J. Dep't of Cmty. Affairs, Reconstruction,
Rehabilitation, Elevation, and Mitigation (RREM) Program Policies
and Procedures 1.3 (2017), http://www.renewjerseystronger.org/wp-
content/uploads/2017/04/Reconstruction-Rehabilitation-Elevation-
and-Mitigation-RREM-Program-Policies-Procedures.pdf.
3 A-4228-15T3
If the applicant is unable to provide a New Jersey driver's
license or non-driver identification card or if FEMA records do
not confirm primary residency, the applicant must still provide
proof of ownership using any two of the following alternative
documentation: "Government issued document sent to the damaged
residence[;] Voter Registration Card[; and] Insurance
documentation indicating that the damaged address is the
applicant's primary residence." RSP Policies & Procedures 4.3.
In October 2013, the DCA published identical criteria to
verify primary residency for eligibility under the RREM program.
Under the RREM, if the applicant is unable to provide a New Jersey
driver's license or non-driver identification card or if FEMA
records do not confirm primary residence the following alternative
documentation may be provided: "Federal tax return document
indicating [the] damaged residence is primary residence[;] and
Voter registration card showing the damaged residence. The
applicant may complete the Certification of Primary Residence as
evidence of primary residence under exceptional circumstances.
Other documentation by the applicant may be considered on a case-
by-case basis." RREM Program Policies & Procedures 3.4.
Petitioner submitted RSP and RREM program applications to the
DCA listing his Point Pleasant residence as his primary residence.
Petitioner executed an RSP grant agreement and certified the
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impacted residence was his primary residence at the time of the
storm. The DCA issued an RSP check to petitioner for $10,000.
The DCA rejected petitioner's RREM program application
concluding the damaged property was not his primary residence.
Petitioner appealed the determination and the DCA sent
correspondence stating he was ineligible for both the RSP and RREM
program. Petitioner appealed this determination and the matter
was referred to the ALJ for a hearing. The DCA presented testimony
from Hearing Officer Nicole Colon, and petitioner testified on his
own behalf.
Colon explained that at the time petitioner applied for and
was approved for the RSP grant, he had a driver's license issued
April 19, 2013, which listed his address as the Point Pleasant
address. She stated the DCA did not have access to petitioner's
motor vehicle records until April 2014. Colon testified the DCA
obtained petitioner's motor vehicle records when it was processing
his RREM program application. Those records revealed petitioner's
residence was in Nutley at the time of the storm, and that his
address had not been changed to Point Pleasant until after the
storm, on November 13, 2012.
Colon testified the DCA then searched voter registration
records and found petitioner had registered to vote with the Point
Pleasant address on May 10, 2013. The DCA also adduced
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petitioner's 2012 and 2013 tax returns and his 2013 W-2, all of
which listed his Nutley address.
Colon testified that after petitioner appealed, the DCA
conducted a public records search. The DCA adduced an Accurint
report, which revealed petitioner had several motor vehicles
registered to the Nutley address at the time of the storm. The
DCA searched petitioner's motor vehicle registration history and
confirmed several vehicles and a boat were registered to the Nutley
property. The Accurint report also showed petitioner's FAA
certification was not associated with his Point Pleasant address
until September 2013.
Petitioner provided the DCA with documents to prove his
residence in Point Pleasant. Specifically, he furnished his FAA
identification card, Medical Certificate Second Class, and Flight
Instructor card. However, the FAA identification did not list the
Point Pleasant address or indicate a date of issuance. The medical
certificate and Flight Instructor card bore the Point Pleasant
address, but were issued after Superstorm Sandy. Also,
petitioner's U.S. Department of Transportation employee
information did not state when his address was changed to the
Point Pleasant address.
Petitioner also offered testimony explaining that he resided
at the Nutley residence with his girlfriend until he purchased the
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Point Pleasant property in 2010. He testified he spends two nights
per week in the Nutley residence. He conceded several of his
vehicles and his primary vehicle were registered to the Nutley
property, but the address for insurance purposes was the Point
Pleasant residence.
Petitioner testified he lost his driver's license in August
2012, due to a driving while intoxicated conviction, and when his
license was reinstated in November 2012, his address was changed
to the Point Pleasant residence. Petitioner admitted his pay
check and credit card bills were mailed to the Nutley address. He
also conceded he continued to use the Nutley property for his
taxes and other important correspondence.
The ALJ issued a written decision affirming the DCA's
determination petitioner was ineligible for grants under the RSP
and RREM program because petitioner had not proven the Point
Pleasant residence was his primary residence at the time of the
storm. Specifically, the ALJ found although petitioner had
purchased the Point Pleasant home on October 25, 2010, he did not
change his mailing address until November 13, 2012. The ALJ found
petitioner resided with his girlfriend in Nutley because it was
close to his work in Newark-Liberty International Airport. The
ALJ concluded "[i]t is more logical that he stayed with his
girlfriend in the nearby town of Nutley on those days when he was
7 A-4228-15T3
working at Newark Airport rather than making the long commute back
to the Point [Pleasant] property."
The ALJ found petitioner's driver's license and voter
registration did not demonstrate he resided at the Point Pleasant
residence on October 29, 2012. The ALJ found petitioner's 2012,
2013, and 2014 tax returns were all filed using the Nutley address
and did not support petitioner's testimony that he resided in
Point Pleasant. The ALJ reviewed each vehicle and boat
registration and found them either registered to the Nutley
property or registered to the Point Pleasant residence after the
storm. As noted, the ALJ found although the FAA certification was
addressed to the Point Pleasant residence, it was dated after the
storm, and petitioner's FAA medical certificate had no date of
issuance. The ALJ noted petitioner's 2013 W-2 was addressed to
Nutley.
The ALJ found some of the evidence provided by petitioner
supported his claim the Point Pleasant property was his primary
residence and that the Nutley property belonged to his girlfriend.
Specifically, petitioner provided the property tax bills for the
Point Pleasant residence for 2011 through 2013, which were sent
to the residence. The property tax bills for the Nutley property
were addressed to petitioner's girlfriend at the Nutley residence.
8 A-4228-15T3
Also, the ALJ found a June 2012 memorandum of judgment issued
by the Ocean County Board of Taxation for the Point Pleasant
property supported petitioner's claims of residence there. The
ALJ found petitioner's testimony that he obtained medical
treatment in Wall Township from May 2012 through November 2012
supported his claim of residence in Point Pleasant. The ALJ also
credited the evidence petitioner adduced of treating with a
provider in Point Pleasant Beach from July 2012 to November 2012,
and a therapist in Brick from December 2011 to March 2012.
The ALJ accepted evidence of a loan application form dated
September 1, 2010, which referred to the Point Pleasant home as
petitioner's primary residence. The ALJ also accepted a Fannie
Mae letter dated January 27, 2011, addressed to petitioner at the
Point Pleasant property regarding a loan for the residence.
Petitioner provided the closing documents for the Nutley
residence to prove his girlfriend had purchased the residence as
an unmarried person, which the ALJ considered. The ALJ also
considered bills petitioner had provided for sewer and utility and
condominium maintenance fees, all associated with the Point
Pleasant residence.
The ALJ found petitioner had not produced the proofs required
by the RSP and RREM programs and that the evidence provided was
9 A-4228-15T3
"outweighed by the proofs working against petitioner." The ALJ
concluded:
Although petitioner may have treated with
physicians nearby the Point [Pleasant]
property, and while he has produced utility
bills from the . . . property, those proofs
do not rise to the required level to qualify
for these grants. Loan documentation from the
closing of the Point [Pleasant] property is
helpful, but the date of the documents from
September 2010, renders them insufficient and
untimely.
Petitioner had also provided evidence in the form of
certifications of neighbors attesting to his primary residence in
Point Pleasant. However, the ALJ ruled the certifications were
hearsay, "and there is no evidence set forth therein as to how the
individuals making the certifications in March 2015, had specific
knowledge and recollection of the whereabouts of petitioner in the
fall of 2012."
The ALJ entered a judgment affirming the DCA's determination.
Plaintiff appealed and the DCA Commissioner entered a final
judgment adopting the ALJ's initial decision. This appeal
followed.
Our scope of review of an administrative agency's final
decision is limited. In re Hermann,
192 N.J. 19, 27 (2007). The
"final determination of an administrative agency . . . is entitled
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to substantial deference." In re Eastwick Coll. LPN-to RN Bridge
Program,
225 N.J. 533, 541 (2016).
An appellate court will not reverse an
agency's final decision unless the decision
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. (quoting Univ. Cottage Club of
Princeton N.J. Corp. v. N.J. Dep't of Envtl.
Prot.,
191 N.J. 38, 48 (2007)).]
On appeal, petitioner argues he met his burden to prove the
Point Pleasant home was his primary residence. Petitioner also
claims he was deprived of due process because the proof of
residence requirements changed in the middle of the application
process. We find these arguments unpersuasive.
As we noted above, the policies and procedures of the RSP and
RREM program identify specific documents that are required to meet
the primary residency requirements to receive grant funding. Both
RSP and the RREM program permit the DCA to consider other
documentation, however as the DCA notes in its brief "'other
documentation' on a case-by-case basis [may be considered] where
the . . . required documentation is not available."
11 A-4228-15T3
Here, petitioner had the required documentation sought by the
RSP and RREM programs relating to his residency, namely, proof of
ownership, FEMA records, and a New Jersey driver's license.
However, those proofs did not support the finding the Point
Pleasant home was his primary residence.
Moreover, the record supports the ALJ's finding that the
evidence of primary residence did not weigh in petitioner's favor.
Petitioner's motor vehicle records, voter history, tax return, and
income information all objectively demonstrated the Nutley address
was his home at the time of the storm. The ALJ did not act in an
arbitrary, capricious, or unreasonable manner by according less
weight to the evidence that supported petitioner's argument. The
ALJ did not err by finding the certifications furnished by
petitioner to be hearsay. Even when the ALJ overlooked the hearsay
and considered the certifications, his decision to give them little
weight on account of their failure to demonstrate knowledge of
petitioner's residency on the date of the storm was not erroneous.
The ALJ's fact-finding is supported by substantial and
credible evidence in the record. Given the substantial deference
we accord to the DCA, there is no basis to second guess its
decision to accept the ALJ's determination.
We also reject petitioner's argument he was deprived of due
process because the DCA issued modifications to the RREM program
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residency requirements. "[T]he Due Process Clause provides that
certain substantive rights — life, liberty, and property — cannot
be deprived except pursuant to constitutionally adequate
procedures." Cleveland Bd. of Educ. v. Loudermill,
470 U.S. 532,
541 (1985). The New Jersey Supreme Court recently stated
"[a]lthough the State Constitution 'does not enumerate the right
to due process,' Article 1, Paragraph 1 'protects values like
those encompassed by the principle[] of due process.'" State v.
Robinson,
229 N.J. 44, 75 (2017) (alteration in original) (quoting
Greenberg v. Kimmelman,
99 N.J. 552, 568 (1985)). Therefore,
inherent in the due process claim is that one must possess a
property right.
We agree with the DCA this case can be likened to Blanchard
v. Newton,
865 F. Supp. 2d 709, 718 (M.D. La. 2012). In Blanchard,
a United States District Court granted a state agency's motion to
dismiss the plaintiff's complaint. The plaintiff, a homeowner,
had argued they had a right to receive Hurricane Katrina disaster
relief funds appropriated to HUD, and in turn provided to the
state agency to administer.
The Blanchard court rejected the homeowner's claim and
stated:
The [c]ourt finds that plaintiff has failed
to state a due process claim under the facts
of this case. The Road Home Program is clearly
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not an entitlement program . . . . As
defendants correctly contend, the Federal
Disaster Relief Funds under the Federal
Appropriations Act were not appropriated
directly to property owners; rather, the funds
were appropriated by Congress to HUD, then
allocated as CDBG funds to the State of
Louisiana. Pursuant to [Louisiana statute],
the OCD is the state agency authorized by law
to develop the Action Plan Amendments and
establish the policies regarding the CDBG
funds and administration of the Road Home
Program. A property owner simply has no
individual, vested property interest to these
funds.
[Id. at 718.]
There is no dispute the funds provided by HUD to New Jersey
after Superstorm Sandy were allocated in the same manner as the
Hurricane Katrina funds in Blanchard. Indeed, RSP's "Program
Overview" states:
The State of New Jersey Department of
Community Affairs (DCA) has allocated
Community Block Grant Disaster Recovery (CDBG-
DR) funds to support the Homeowner
Resettlement Program currently available to
homeowners in the nine counties most impacted
by the storm. . . .
The funds available for this program are
provided by the Department of Housing and
Urban Development (HUD). The program is one
of three programs that make up the Superstorm
Sandy Housing Intake Program (SSHIP). The
other three programs are the Homeowner
Reconstruction, Rehabilitation, Elevation and
Mitigation Program (RREM) . . . .
[RSP Policies & Procedures 1.]
14 A-4228-15T3
For these reasons, petitioner was not deprived of due process
because he possessed no fundamental property right to the grant
funds. Even if petitioner could claim a property right to the
funds, the amendment made to the RREM program policies and
procedures was to require that proof of residence documents be
dated prior to the date of the storm. This modification did not
alter the nature of the proofs required, and that petitioner did
not possess them.
Affirmed.
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