DEPARTMENT OF COMMUNITY AFFAIRS SANDY RECOVERY DIVISION v. ANTHONY MELIA -

NOT FOR PUBLICATION WITHOUT THE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-2297-19

DEPARTMENT OF
COMMUNITY AFFAIRS,
SANDY RECOVERY DIVISION,

          Petitioner-Respondent,

v.

ANTHONY MELIA,

     Respondent-Appellant.
______________________________

                   Argued December 8, 2021 – Decided March 11, 2022

                   Before Judges Gilson and Gummer.

                   On appeal from the New Jersey Department of
                   Community Affairs, Docket No. CAF 11786-18.

                   Joshua I. Savitz argued the cause for appellant (Weiner
                   Law Group, LLP, attorneys; Joshua I. Savitz, of counsel
                   and on the briefs).

                   Eric A. Reid, Deputy Attorney General, argued the
                   cause for respondent (Andrew J. Bruck, Acting
                   Attorney General, attorney; Sookie Bae, Assistant
                   Attorney General, of counsel; Eric A. Reid, on the
                   brief).
PER CURIAM

      Anthony Melia appeals from the final decision of the Department of

Community Affairs (Department), which determined that Melia had to refund

grant monies he received from the Department to repair a house damaged by

Superstorm Sandy because the house was not Melia's primary residence. Melia

contends that the Department's decision was arbitrary, capricious, and

unreasonable, and was based on an improper shifting of the burden to prove

Melia's eligibility to receive the grants. We reject those arguments and affirm.

                                       I.

      On October 29, 2012, Superstorm Sandy struck New Jersey. In response

to the damage caused by the storm, the United States Department of Housing

and Urban Development (HUD), through the Community Development Block

Grant-Disaster Recovery Program, provided funds to the Department for a

variety of programs designed to assist affected New Jersey residents who met

the eligibility requirements.

      The Department established several programs, including the Resettlement

program (RS program) and the Reconstruction, Rehabilitation, Elevation, and

Mitigation program (RREM program).          The RS program provided $10,000

grants for non-construction purposes to encourage eligible homeowners to

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remain in the county in which they lived at the time of the storm. The RREM

program provided grants of up to $150,000 to assist eligible homeowners with

construction, rehabilitation, elevation, and other mitigation efforts to restore

their residences.

      To be eligible for grants under either program, the damaged residence

must have been the applicant's primary residence at the time of the storm. The

Department published the eligibility criteria for the grants.    The published

criteria explained that for both programs the Department preferred that

applicants verify their primary residence through multiple data sources and

documents.     The preferred verification required documents showing (1)

ownership of the property; (2) Federal Emergency Management Agency

(FEMA) records showing the applicant reported to FEMA that the property was

the primary residence at the time of the storm; and (3) a New Jersey driver's

license or non-driver identification card showing the damaged residence as the

address. See RS program policy at 4.2 and RREM policy at 3.4.

      If primary residence could not be established through the preferred

documentation, an applicant to the RS program could provide two of three

documents: a government-issued document sent to the damaged residence; a




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voter registration card; or insurance documentation showing "that the damaged

address is the applicant's primary residence." RS program policy at 4.3.

         An applicant seeking a grant under the RREM program could establish

primary residence by providing federal tax return documents showing the

damaged residence is his or her primary residence, as well as a voter registration

card showing the damaged residence. RREM program policy at 3.4. The

policies and procedures for both programs also stated that the Department might

consider other documentation to prove primary residence on a case-by-case

basis.

         Melia owned two homes at the time of Superstorm Sandy: a home he

inherited from his father located at 71 Glenview Road, Nutley (the Nutley

property), and a home located at 71 West Granada Drive, Brick (the Brick

property). Melia purchased the Brick property in April 2012. On October 29,

2012, Superstorm Sandy damaged Melia's Brick property.

         In June 2013, Melia submitted applications for grants under both the RS

program and the RREM program. In July 2013 and February 2014, Melia

executed grant agreements and promissory notes for grants under both programs.

In the grant agreements, Melia certified that the Brick property was his primary

residence at the time of Superstorm Sandy.


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        The Department approved Melia's application under both programs. In

2013, Melia received $10,000 from the RS program. The RS program's grant

agreement and promissory note provided that the grantee would be obligated to

repay the entire grant amount if the grantee failed to maintain a qualifying

primary residence. In 2014, Melia received two RREM program grant checks

totaling $133,519.99. The RREM program's grant agreement stated that false

or materially misleading representations in either the grant agreement or

application would constitute an event of default, and the remedies for a default

include recovery of the grant.

        In March 2016, the Department sent Melia a letter demanding repayment

of the monies under both grant programs because it had determined that the

Brick property was not Melia's primary residence.         Melia administratively

appealed that determination, and the Department transferred the matter to the

Office of Administrative Law as a contested case.

        In 2019, an Administrative Law Judge (ALJ) heard testimony and

received evidence on three days: March 8, 2019, March 11, 2019, and July 22,

2019.    The Department relied on documentation, principally consisting of

Melia's driver's license, voter registration, tax returns, and mortgage documents.

Melia's driver's license showed that his primary residence was the Nutley


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property, and on November 12, 2012, he changed his driver's license so that it

listed his Brick property. Melia's voter registration listed the Nutley property

as his primary residence at the time of Superstorm Sandy, and he changed his

voter registration on December 20, 2012, to list the Brick property.         The

evidence at the hearing showed that Melia voted in Nutley in the November 2012

election.   Melia's federal 2012 tax return, which was filed in April 2016,

identified the Nutley property as his primary residence.

      Melia also executed several mortgages that listed the Nutley property as

his primary residence. When Melia purchased the Brick property, he obtained

a mortgage and executed a "second home rider" in which he agreed that he would

occupy the Brick property only as his second home. Melia also executed a

separate mortgage in March 2013 on the Nutley property. In that mortgage

Melia stated he would occupy the Nutley property as his primary residence.

      At the hearing, Melia contended that he used the Brick property as his

primary residence. He testified that he had begun living at the Brick property

in April 2012. He explained that he had failed to change his driver's license and

voter registration because he did not get around to it. Concerning the mortgage

documents, Melia contended that he had not carefully reviewed those documents

and instead had relied on his attorney. Melia also provided testimony from ten


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neighbors and friends, all of whom testified that, based on their observations,

Melia used the Brick property as his primary residence after he had purchased it

in April 2012.

      On September 26, 2019, the ALJ issued an initial decision upholding the

Department's determination that Melia was not eligible for the grants under

either program. The ALJ relied on the driver's license, voter registration, tax

returns, and mortgages to find that Melia had not used the Brick property as his

primary residence at the time of Superstorm Sandy. The ALJ determined that

the documents provided by Melia were not sufficient to establish that the Brick

property was his primary residence. The ALJ also rejected the testimony of

Melia's friends and neighbors, reasoning that they had offered only subjective

observations and "no direct objective evidence" that Melia's primary residence

was the Brick property at the time of the storm.

      Melia administratively appealed the ALJ's initial determination to the

Department. In connection with his exceptions, Melia filed a motion to reopen

the record and submit a December 18, 2019 FEMA decision finding that Melia

was not required to return the FEMA funds because the Brick property was his

primary residence.




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      On December 27, 2019, the Department, through its commissioner, issued

a final agency decision adopting the ALJ's initial decision and holding that Melia

must refund the grants he had received under the RS and RREM programs. The

Department reasoned that documentary evidence is the preferred method for

establishing primary residence under both programs.              Accordingly, the

Department found that the ALJ had properly focused on the documentary

evidence.    The Department then addressed and analyzed Melia's various

arguments and rejected them. Finally, the Department acknowledged the FEMA

determination but found that it was not "controlling or persuasive" because the

FEMA analysis differed significantly from the State programs' focus on the

required documentation.

                                        II.

      On this appeal, Melia contends that the Department's decision should be

reversed because (1) it was arbitrary, capricious, unreasonable, and lacked a

factual basis; and (2) it relied on an erroneous burden of proof. We are not

persuaded by either of these arguments.

      Our scope of review of an administrative agency's final determination is

limited. In re Herrmann,  192 N.J. 19, 27 (2007). The "final determination of

an administrative agency . . . is entitled to substantial deference." In re Eastwick


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Coll. LPN-RN Bridge Program,  225 N.J. 533, 541 (2016).                  A "strong

presumption of reasonableness attaches" to an agency's decision. In re Carroll,

 339 N.J. Super. 429, 437 (App. Div. 2001) (quoting In re Vey,  272 N.J. Super.
 199, 205 (App. Div. 1993), aff’d,  135 N.J. 306 (1994)). We will 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).

      Moreover, we do not second-guess or substitute our judgment for that of

the agency. Accordingly, we do not "engage in an independent assessment of

the evidence as if [we] were the court of first instance." In re Taylor,  158 N.J.
 644, 656 (1999) (quoting State v. Locurto,  157 N.J. 463, 471 (1999)). Instead,

we give "due regard to the opportunity of the one who heard the witnesses to

judge . . . their credibility" and, therefore, accept the findings of fact "when

supported by adequate, substantial and credible evidence." Ibid. (first quoting

Close v. Kordulak Bros.,  44 N.J. 589, 599 (1965); and then quoting Rova Farms

Resort, Inc. v. Invs. Ins. Co.,  65 N.J. 474, 484 (1974)). Nevertheless, we are not

bound by an agency's "interpretation of a statute or its determination of a strictly


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legal issue." In re Carter,  191 N.J. 474, 483 (2007) (quoting Mayflower Sec.

Co. v. Bureau of Sec.,  64 N.J. 85, 93 (1973)).

      We discern no basis for disturbing the Department's determination that

Melia was not eligible for grants under the RS program or the RREM program.

The Department adopted the fact findings made by the ALJ. The ALJ, in turn,

found that Melia had not proven that the Brick property was his primary

residence based on his driver's license, voter registration, tax returns and

mortgages. That determination is supported by substantial credible evidence.

The Department and the ALJ also considered but rejected Melia's testimony and

the testimony of his friends and neighbors. In that regard, the Department

adopted the ALJ's reasoning in finding that their testimony was not objective

evidence of his primary residence. We discern no basis for rejecting tha t

finding, which essentially is a credibility determination.

      Melia further argues that the Department should have placed greater

weight on the FEMA decision that concluded, largely based on witness

testimony, that the Brick property was his primary residence. This is not the

first time this court has been asked to discard the document-focused approach

used by the Department to determine a property owner's "primary residence."

See N.J. Dep't of Cmty. Affs., Sandy Recovery Div. v. Maione, 456 N.J. Super.


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146, 155-56 (App. Div. 2018). In Maione, this court declined to hold that the

"primary residence" question should be resolved by relying on the common-law

concept of "domicile." Id. at 155. We rejected that test in part because it would

generate extensive litigation, diverting resources intended for disaster relief to

"pay lawyers" and not "carpenters, masons, and plumbers." Id. at 156. The

Department's "straightforward approach," on the other hand, informs grant

applicants of the "list of specific documents" that the Department uses to make

"critical eligibility determinations."        Id. at 155.   That approach assists

homeowners through an uncomplicated process that serves the important "public

policy underpinning these relief programs." Ibid.

      Following that same logic, we decline to hold that the Department should

have used a different test here.     Instead, the Department's straightforward

approach is in line with both public policy and the clear requirements of both

programs' policies.

      Melia also raises a contention concerning the burden of proof. He argues

that it was the Department's burden to show substantial credible evidence that

he should return the grant monies. He then contends that the Department and

ALJ incorrectly focused on his failure to establish that the Brick property was

his primary residence on the day of Superstorm Sandy.


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      The Department concedes that it must demonstrate that Melia does not

qualify under the grant-program rules.      It points out, however, the grant

programs' policies and procedures clearly state that the applicant must establish

that the damaged property was his or her primary residence at the time that

Superstorm Sandy struck.     The ALJ and the Department evaluated all the

evidence presented and found that Melia was not eligible for grants under either

program. We discern no improper shifting of a burden that would warrant a

reversal of the Department's final agency determination.

      Affirmed.




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