DEPARTMENT OF COMMUNITY AFFAIRS, SANDY RECOVERY DIVISION v. WILLIAM NOE -

NOT FOR PUBLICATION WITHOUT THE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-5173-15T1

DEPARTMENT OF COMMUNITY
AFFAIRS, SANDY RECOVERY
DIVISION,

          Petitioner-Respondent,

v.

WILLIAM NOE,

     Respondent-Appellant.
___________________________________

                   Submitted October 1, 2018 – Decided October 16, 2018

                   Before Judges Sabatino and Mitterhoff.

                   On appeal from the New Jersey Department of
                   Community Affairs, Sandy Recovery Division, Docket
                   No. RSP0033362.

                   William M. Goldberg, attorney for appellant.

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (Melissa Dutton Schaffer, Assistant
                   Attorney General, of counsel; Valentina M. DiPippo,
                   Deputy Attorney General, on the briefs).

PER CURIAM
     William Noe appeals the June 13, 2016 final agency decision of the

Department of Community Affairs ("DCA") rescinding the agency's award of a

Superstorm Sandy grant to him, and directing him to refund the $10,000 grant

that he improperly received. We affirm.

     Noe applied for the grant under the Homeowner's Resettlement Program,

known as the "RSP." The RSP is one of four homeowner assistance programs

administered by the DCA through the Sandy Recovery Program to aid eligible

New Jersey residents who were affected by Superstorm Sandy. Pursuant to the

Disaster Relief Appropriations Act of 2013, the United States Department of

Housing and Urban Development ("HUD") awarded Community Development

Block Grant Disaster Recovery ("CDBG-DR") funds to assist in the State's

recovery from Superstorm Sandy. N.J. CDBG-DR Action Plan at 1- 1 (2013).

     The RSP grant program rules require the damaged property be the

applicant's "primary residence" as of the date of Superstorm Sandy, which was

October 29, 2012. Noe owns a house in Brick Township in Ocean County that

was damaged in the storm. Noe asserted on his application that the damaged

house was his primary residence, and he accordingly received the grant funds.

On closer review in a compliance "spot check," however, the DCA questioned



                                                                     A-5173-15T1
                                     2
Noe's eligibility with respect to the primary residency requirement, and

undertook to rescind the grant. Noe contested that decision.

      The contested matter was referred to the Office of Administrative Law

("OAL"). An administrative law judge ("ALJ") presided over a one-day hearing

at which Noe, his significant other, and the owner of a neighboring house in

Brick testified.

      The ALJ issued a written decision on August 21, 2015, concluding that

Noe had proven that the Brick property was his primary residence at the time of

the storm.   However, the DCA Commissioner rejected the ALJ's decision,

concluding from the "objective evidence" that Noe's primary residence was in

North Arlington, in Hudson County, not Brick.

      Noe appealed to this court, and the matter was temporarily remanded to

the DCA to allow it to amplify its decision. The DCA Commissioner issued a

detailed amplification of reasons on November 17, 2017, reiterating his

conclusion that Noe was ineligible for the grant.

      The program rules specify the preferred method of establishing an

applicant's primary residence of the damaged property is by providing a New

Jersey driver's license identifying the address. N.J. Dep't of Cmty. Affairs,

Resettlement Policies & Procedures 4.2 (2015) ("RSP Policies & Procedures").


                                                                       A-5173-15T1
                                       3
If the proof on the driver's license is lacking, the applicant must present two of

the following alternative documents: (1) a government-issued document sent to

the damaged residence; (2) voter registration records; (3) insurance

documentation listing the damaged address as the primary residence; or (4) other

documentation on a case-by-case basis. RSP Policies & Procedures 4.3.

      Noe testified at the OAL hearing he bought the house in Brick initially as

a vacation home while he was living primarily at his mother's house in North

Arlington. Noe worked for the Town of North Arlington in its maintenance

department. In 2008, Noe's significant other was transferred to a full-time

position in or near Ocean County and moved into the Brick residence. The North

Arlington house is a two-family dwelling, where Noe's mother and son now live.

His mother has a life estate in the home. According to Noe, he moved his

primary residence to Brick in 2008, and commuted from there to his job in North

Arlington. He stated he would often visit his mother in North Arlington for

lunch during the week.

      Much of the documentation in the record is inconsistent with Noe's claim

of having his primary residence in Ocean County. He continued to use a North

Arlington address on his driver's license, as well as on the registrations of his

cars and boat. He continued to be registered to vote in North Arlington. In fact,


                                                                          A-5173-15T1
                                        4
Noe voted in North Arlington in November 2011 before the 2012 storm, and in

March 2013 after the storm. Moreover, his federal and state income tax returns

used the North Arlington address.

      Noe provided his homeowners insurance policy listing the Brick property

as his primary residence, which counts as one of the two necessary documents.

Noe also provided his government-issued property tax bills for the Brick

residence, which were mailed to the Brick address.         The DCA points out,

however, that a taxpayer can request tax bills be mailed for convenience to a

different address other than that of the taxed property.

      Noe provided his utility bills for the Brick property which showed a slight

increase after he and his significant other contend he moved there. Noe also

presented a resignation letter that he wrote to the Lyndhurst volunteer fire

department, dated November 2008. In the letter he claims he is resigning

because he moved to the shore.

      Noe continued to hold himself out as a North Arlington resident when he

applied for a promotion in the town. He explained that he did not change his

address to the Brick residence with his employer, out of concern that doing so

might have raised "red flags" and diminished his chances of obtaining the

promotion.


                                                                         A-5173-15T1
                                        5
      The DCA Commissioner's amplified decision concluded the ALJ "erred

in valuing subjective testimony . . . over objective evidence," and "incorrectly

accepted and considered documentation that is not acceptable proof of primary

residence."    The Commissioner determined that the ALJ's decision was

"contradicted by sufficient, competent, and credible evidence in the record ," and

rejected it as "arbitrary, capricious and/or unreasonable and not supported by

credible evidence." Accordingly, the Commissioner concluded that Noe was

ineligible for an RSP grant, and the agency directed him to refund the grant

monies he had improperly received.

      On appeal, Noe argues the Commissioner's decision was unsupported by

competent and credible evidence, and unfair. He seeks reversal and a restoration

of his eligibility for the grant.

      Our scope of review of this 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 to substantial deference.” In re Eastwick

Coll. LPN–to RN Bridge Program,  225 N.J. 533, 541 (2016); see also In re

Carroll,  339 N.J. Super 429, 437 (App. Div. 2001) (finding a "strong

presumption of reasonableness attaches to the actions of administrative

agencies") (citation omitted). To that end:


                                                                          A-5173-15T1
                                        6
            The appellate court ordinarily should not disturb an
            administrative agency's determinations or findings
            unless there is a clear showing that (1) the agency did
            not follow the law; (2) the decision was arbitrary,
            capricious, or unreasonable; or (3) the decision was not
            supported by substantial evidence.

            [In re Virtua-West Jersey Hosp. Voorhees for a
            Certificate of Need,  194 N.J. 413, 422 (2008).]

      When, as here, a contested case is submitted to the OAL for a hearing, the

agency head must review the record submitted by the ALJ and give attentive

consideration to the ALJ's initial decision. New Jersey Dep't of Pub. Advocate

v. New Jersey Bd. of Pub. Utilities,  189 N.J. Super. 491, 500 (App. Div. 1983).

The agency head remains the primary factfinder and maintains the ultimate

authority to reject or modify findings of fact, conclusions of law, or

interpretations of agency policy. Id. at 507; see also  N.J.S.A. 52:14B-10(c);

N.J.A.C. 1:1-18.6(c). Nonetheless, ALJs are not mere conduits for transmitting

evidence to the agency head, and they should not be considered "second-tier

players or hold an inferior status as factfinders." In Matter of Hendrickson, ___

N.J. ___, ___ (2018) (slip op. at 19).

      Applying these standards of review here, we are satisfied the

Commissioner's final agency decision finding Noe ineligible for the RSP grant

is amply supported by substantial credible evidence in the record, and is neither


                                                                         A-5173-15T1
                                         7
arbitrary nor capricious. In particular, we are persuaded the Commissioner had

a sound basis in the record and in the governing law to reject the ALJ's finding

that the Brick dwelling was Noe's "primary residence" at the time of Superstorm

Sandy.

      In his brief on appeal, Noe contends the Brick residence was his

"domicile" as of October 2012, and thus should be treated for purposes of his

RSP grant eligibility as his primary residence, regardless of the documentation

listing North Arlington at that time as his address. Recently, we repudiated such

reliance upon common-law domicile principles in New Jersey Dep't of Cmty.

Affairs, Sandy Recovery Div. v. Maione, ___ N.J. Super. ___ (App. Div. Aug.

23, 2018) (slip op. at 14). As we explained in Maione, relying on the concept

of domicile "would seriously compromise the essential purpose of these relief

programs. It would require applicants to retain lawyers to research how the

common law concept of 'domicile' can be applied in this context." Maione, ___

N.J. Super. ___ (slip op. at 10).

      In Maione, the DCA Commissioner concluded that the applicant was not

eligible under the RSP grant because he did not prove his shore property in Toms

River was his primary residence. Maione, ___ N.J. Super. ___ (slip op. at 10).

The applicant's driver's license listed a Hoboken address, his tax returns listed a


                                                                           A-5173-15T1
                                        8
Hoboken address, and he was registered to vote in Hoboken. Maione, ___ N.J.

Super. ___ (slip op. at 7).    Additionally, although Maione had received a

property tax rebate for the Toms River address in 2011 that rebate would not be

considered "the type of documentation the DCA considers as proof of primary

residence, especially in cases such as this, where there is strong countervailing

evidence establishing otherwise." Ibid.

      We upheld the agency's finding of Maione's ineligibility. As we stated:

            Appellant's argument attacking the approach employed
            by the ALJ and adopted by the Commissioner in
            determining what constitutes “primary residence” for
            determining who is eligible to receive a grant under
            RREM and RSP is not only without merit, it would lead
            to needless uncertainty and undermine the sound
            administration of these relief programs.

                   The Sandy-related grants at issue here were
            created to assist a class of property owners whose
            "primary residence" was damaged or destroyed by this
            "[S]uperstorm." The grant applications contained a list
            of specific documents that the DCA uses to make these
            critical eligibility determinations. The public policy
            underpinning these relief programs is to provide
            financial assistance to a particular class of homeowners
            in a straightforward manner.

            [Maione, ___ N.J. Super. ___ (slip op. at 13-14)
            (emphasis added).]

      Similar to the situation presented in Maione, Noe's license, tax returns,

and voter registration records during the pertinent period contradicted his claim

                                                                         A-5173-15T1
                                       9
that his primary residence was the Brick property. The Commissioner's final

decision noted the alternative documentation presented by Noe – namely his

2008 resignation letter from the Lyndhurst volunteer fire department, his

property tax bills, and his utility bills – were inadequate to substantiate that

Brick was his primary residence.

      Consistent with our analysis in Maione, the DCA Commissioner's final

decision in this case appropriately required grant eligibility to be verified

through objective documentary proof. The ALJ impermissibly relied on the

subjective intent of Noe and inadequate documents. As the Commissioner

accurately summarized the objective evidence:

            [T]he record reflects that there is substantial credible
            evidence, such as Noe's driver's license, voter
            registration, motor vehicle and boat registrations, and
            2012 taxes, which show that the North Arlington
            property was Noe's primary residence at the time of
            Superstorm Sandy . . . . For all of these reasons, I
            reversed and rejected the ALJ's determination that the
            Brick property was Noe's primary residence . . . . All of
            the objectively verified documents presented reflect the
            North Arlington property as Noe's primary residence.

We endorse this sound conclusion.

      Affirmed.




                                                                        A-5173-15T1
                                      10