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).

NOT FOR PUBLICATION WITHOUT THE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.
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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 that 

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.