ZAKIR HOSSAIN VS. DEPARTMENT OF COMMUNITY AFFAIRS HURRICANE SANDY DIVISION(NEW JERSEY DEPARTMENT OF COMMUNITY AFFAIRS)

• Court: New Jersey Superior Court Appellate Division
• Decided: August 9, 2017
• Docket: A-0921-15T4
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0921-15T4

ZAKIR HOSSAIN,

Petitioner-Appellant,

v.

DEPARTMENT OF COMMUNITY AFFAIRS HURRICANE SANDY DIVISION,

Respondent-Respondent. ____________________________

Submitted May 4, 2017 – Decided August 9, 2017

Before Judges O'Connor and Whipple.

On appeal from the New Jersey Department of Community Affairs, Docket No. 0009245.

Keith T. Smith, attorney for appellant.

Christopher S. Porrino, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Valentina M. DiPippo, Deputy Attorney General, on the brief).

PER CURIAM

Petitioner Zakir Hossain appeals from the final agency

decision of respondent Department of Community Affairs (DCA), which adopted the initial decision of an Administrative Law

Judge (ALJ) pursuant to N.J.S.A. 52:14B-10(c). The ALJ

determined petitioner was ineligible to receive grant money from

the DCA for damage caused by Superstorm Sandy to a residence

petitioner owned, because the residence was not his primary one.

We remand for further proceedings.

I

Following Superstorm Sandy, petitioner applied for and

received a $10,000 grant from the DCA for one of the two

residences he owned. At the time, the DCA assumed the damaged

residence was petitioner's primary one. Thereafter, the DCA

checked the information petitioner provided when he applied for

the grant. The DCA determined the residence was not

petitioner's primary one and deemed him ineligible for the

grant. The DCA demanded petitioner return the grant money.

Petitioner appealed that determination and the matter was

transferred to the Office of Administrative Law as a contested

matter.

The salient evidence adduced at the hearing held before the

ALJ was as follows. Petitioner testified he purchased a

residence on Pacific Avenue in Atlantic City (Pacific residence)

in 2001, and purchased a second residence on Fairmount Avenue

(Fairmount residence), also in Atlantic City, in 2005. 2 A-0921-15T4 Petitioner lived in the Pacific residence with his wife and

children until 2012; meanwhile, he rented out the Fairmount

residence after acquiring it in 2005.

In June 2012, petitioner and his wife separated, and he

moved into the Fairmount residence with his tenant. Petitioner

reduced the rent the tenant was required to pay because he was

sharing the premises with petitioner. When he moved out of the

marital home, petitioner did not remove all of his belongings,

and did not change his mailing address or update his driver's

license to show he was residing at the Fairmount residence. The

day Superstorm Sandy struck on October 29, 2012, petitioner, his

wife, and children evacuated Atlantic City together.

Thereafter, petitioner resumed living with his wife and children

in the Pacific residence.

Petitioner testified he applied for and received the

subject grant from the DCA because of damage to the Fairmount

residence; he did not seek assistance on the ground the Pacific

residence sustained damage. The DCA then advised it had

determined the Fairmount property was not his primary residence

and demanded the return of the grant money.

The record reveals the DCA's reasons for concluding the

Fairmount residence was not petitioner's primary one were that,

while living at such residence, petitioner's driver's license 3 A-0921-15T4 and voter registration records reflected he was living at the

Pacific residence, and the property tax bills for the Fairmount

residence were being sent to the Pacific residence.

Following the hearing, the ALJ noted the eligibility

criteria for the subject grant are found in the Policy and

Procedure manuals for the Resettlement Program (RSP) and the

Renovation, Reconstruction, Elevation and Mitigation Program

(RREM), the relief programs that administer the award of grant

money for victims of Superstorm Sandy. The ALJ cited language

from the manuals stating eligibility for a grant requires an

applicant to have owned and occupied the property that is the

subject of the application as his or her primary residence on

the date of the storm, and that second homes, vacation homes,

and rental properties did not qualify. See RSP Policies &

Procedures, Sections 2.1 and 4.1, http://www.renewjerseystronger

.org/wp-content/uploads/2014/09/Resettlement_Program_Principal_P

olicies_and-Procedures-0214.pdf (last modified July 29, 2013);

RREM Policies & Procedures, Section 1.3, http://www.renewjerseys

tronger.org/wp-content/upds/upds/2017/014/Reconstruction-

Rehabilitation-Elevation-and-Mitigation-RREM-Program-Policies-

Procdures.pdf (last modified April 1, 2017).

The ALJ then determined there was no evidence the Fairmount

residence was petitioner's primary one because, when he resided 4 A-0921-15T4 at such residence, petitioner failed to change his driver's

license and mailing address to reflect his change in residence.

Without citing any legal authority, the ALJ concluded these

omissions revealed petitioner's belief the marital separation

was not permanent and, thus, established the Fairmount residence

was not his primary one. The ALJ stated:

He was engaged in a marital dispute with his wife and temporarily moved from the martial home. Nothing in his conduct indicated intent to render the separation permanent, and indeed, the separation lasted only until immediately after Superstorm Sandy, at which time petitioner returned to his family at [the Pacific residence].

Petitioner's situation at the time of Superstorm Sandy was no different from a man who leaves his wife and move[s] into a motel. The mere act of renting a motel room would not by itself establish residence in the motel. Petitioner's situation is identical. Instead of moving into a motel, he took a room with his tenant at [the Fairmount residence]. That action by itself did not establish permanent residence.

II

On appeal, petitioner argues: (1) the Fairmount residence

was his primary one at the time of the storm; (2) as a

domiciliary of Atlantic City at the time of the storm, he should

be afforded benefits; and (3) he should be permitted to amend

his application at this time to state the Pacific residence was

his primary one at the time of the storm. 5 A-0921-15T4 The second and third arguments were not raised before the

agency, not to mention decided, and thus we decline to address

them. "Generally, an appellate court will not consider issues,

even constitutional ones, which were not raised below." State

v. Galicia, 210 N.J. 364, 383 (2012). Even if this issue had

been raised, the ALJ did not address this question in his

opinion and, thus, we decline to do so in the first instance.

Duddy v. Gov't Emps. Ins. Co., 421 N.J. Super. 214, 221 (App.

Div. 2011).

An appellate court defers to an administrative agency's

findings of fact if supported by substantial credible evidence

in the record. See In re Herrmann, 192 N.J. 19, 27-28 (2007).

However, we are not bound by an agency's determination of a

strictly legal issue. Norfolk S. Ry. Co. v. Intermodal Props.,

LLC, 215 N.J. 142, 165 (2013). Thus, to the extent an agency's

determination constitutes a legal conclusion, we review it de

novo.

The ALJ accurately summarized the provisions in the RSP and

RREM programs addressing residency. See RSP Policies &

Procedures, supra, Sections 2.1 and 4.1; RREM Policies &

Procedures, supra, Section 1.3. These provisions do state that,

to be eligible for a grant, applicants must have owned and

occupied the subject property as their primary residence on the 6 A-0921-15T4 date of the storm, and that second homes, vacation homes, and

rental properties did not qualify as a primary residence. Ibid.

We note the RSP manual also addresses verification of

residency. Sections 4.2 and 4.3 of the RSP manual provide:

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:

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

[2] 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.

[3] 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 [Section] 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[:]

7 A-0921-15T4 [1] Government issued document sent to the damaged residence[.]

[2] Voter Registration Card[.]

[3] Insurance documentation indicating that the damaged address is the applicant's primary residence.

[RSP Policies and Procedures, supra, Sections 4.2 and 4.3.]

Here, although there is no question defendant owned the

Fairmount residence, there was no evidence (1) he reported to

FEMA the Fairmount property was his primary residence at the

time of the storm, and (2) his driver's license reflected the

address of the Fairmount residence. However, as stated in

Section 4.2, the production of this evidence is merely the

"preferred" method of establishing a residence is primary;

therefore, the production of this evidence is not the only

method. Moreover, the manual does not state the failure to

establish these three criteria is proof an applicant's residence

is not primary. In fact, this section states verification of a

primary residence is determined through the evaluation of

"multiple data sources and documents." RSP Policies and

Procedures, supra, Section 4.2.

Section 4.3 provides alternative documentation will be

"considered" if the applicant's primary residence cannot be

confirmed through the documents referenced in Section 4.2. Id. 8 A-0921-15T4 at Section 4.3. Petitioner failed to provide these documents as

well, specifically, a copy of a document issued by the

government that was sent to the Fairmount residence, a voter

registration card reflecting his address to be the Fairmount

one, and an insurance document indicating the Fairmount property

was his primary residence. However, the failure to produce any

of these documents also is not fatal to establishing the

Fairmount residence was his primary one. The documentation

referenced in Section 4.2 and 4.3 may well be probative of

whether a residence is an applicant's primary one, but the

failure to produce these documents does not conclusively

establish an applicant’s particular residence is not primary.

In our view, the ALJ was required to make findings on

whether the Fairmount residence constituted petitioner's primary

residence, and that required, at the outset, a determination of

what constitutes a "primary residence." Here, the ALJ

determined the Fairmount residence was not primary because some

of the documents listed in Sections 4.2 and 4.3 were not

produced. But, as we have observed, that omission on

petitioner’s part does not necessarily establish the Fairmount

residence was not his primary one.

The ALJ also determined petitioner's move from the marital

home was temporary because the petitioner did not exhibit any 9 A-0921-15T4 conduct indicating he believed the separation was permanent;

therefore, the ALJ concluded, the Fairmount residence was not a

primary one. However, the ALJ did not cite any authority for

the premise a person's subjective belief a move to a particular

residence is temporary establishes a person's residence is not

primary. Accordingly, we are constrained to remand for further

findings on what constitutes a "primary residence."

Remanded for further proceedings consistent with this

opinion. We do not retain jurisdiction.

10 A-0921-15T4