Haddock v. Department of Community Development, City of Passaic

Decision Date15 May 1987
Citation526 A.2d 725,217 N.J.Super. 592
PartiesMarta HADDOCK, Christine Adams, Brenda Brinson, Alice Allen, Sally Hinton, Artis Hudson, Tanya Norman, Gail Robinson, Julia Agosta, Brenda Morrison, Yvonne Morrissey, Louise Pickett and Margaret Smalley, Petitioners-Respondents, v. DEPARTMENT OF COMMUNITY DEVELOPMENT, CITY OF PASSAIC, Respondent-Appellant.
CourtNew Jersey Superior Court — Appellate Division

Edward A. Trawinski, Jr., Passaic, for respondent-appellant (John J. McKniff, City Atty. of City of Passaic; John J. McKniff, of counsel and Edward A. Trawinski, Jr., on brief).

Peggy Earisman, Paterson, for petitioners-respondents (Passaic County Legal Aid Soc.; Peggy Earisman, on brief).

John J. Chernoski, Deputy Atty. Gen., for petitioner-respondent, New Jersey Dept. of Community Affairs (W. Cary Edwards, Atty. Gen.; Michael R. Clancy, Deputy Atty. Gen., of counsel; John J. Chernoski, on brief).

Before Judges O'BRIEN, SKILLMAN and LANDAU.

The opinion of the court was delivered by

LANDAU, J.S.C., (temporarily assigned).

The Department of Community Development of the City of Passaic (City of Passaic) appeals from a final determination of the Commissioner of the New Jersey Department of Community Affairs (Commissioner) ordering it to pay relocation assistance benefits to the 13 named petitioners-respondents (respondents) under the "Relocation Assistance Act," N.J.S.A. 20:4-1 et seq. (the Relocation Act), the "Relocation Assistance Law of 1967," N.J.S.A. 52:31B-1 et seq. (the Relocation Law), and N.J.A.C. 5:11-1 et seq.

In January and April 1985 certain owners of apartment buildings located in Passaic were notified by the Superintendent of Housing that they were in violation of the City's Property Maintenance Code, § 5.9 et seq., in that there were tenancies which did not comply with Code minimum floor and/or sleeping area requirements. The letters directed these owners to abate the violations. The building owners then served notices to vacate upon respondents who are tenants in the overcrowded apartments. They were subsequently summoned to court where judgments of possession were entered against them under N.J.S.A. 2A:18-61.1(g). The warrants of removal were stayed pending disposition of the matter.

On various dates between April 16 and May 14, 1985, respondents made written requests to the City of Passaic for relocation assistance benefits. By letters dated April 29 and May 28, 1985, the City of Passaic denied these requests. It based its denial on N.J.A.C. 5:11-2.1(a) which provides that, "[w]henever a ... unit of local government undertakes a program of ... code enforcement ... that causes the displacement of people ... the unit of local government shall provide relocation payments and assistance to all lawful occupants who are displaced ..." (Emphasis added) The City of Passaic maintained that the tenancies were illegal since the number of occupants exceeded the Code maximum permitted for the dwelling units, either by reason of square foot or sleeping room minimum standards. The stipulation of facts indicates that for the most part respondents' apartments have been in violation of the City's Property Maintenance Code since the inception of their respective tenancies. Others came into violation because of births or other additions to the living unit. It was stipulated that none of the respondents were aware of the local Code minimums. The landlords were apparently satisfied to continue their tenancies despite such violations until the City took action.

The City of Passaic's denial of relocation assistance benefits was appealed to the Bureau of Housing Services of the New Jersey Department of Community Affairs. That Bureau denied the appeal, agreeing with the City's determinations that respondents were not "displaced" individuals within the meaning of N.J.A.C. 5:11-1.2, since they did not "lawfully occupy" the apartments which they were required to vacate. The present respondents were advised of their right to an administrative hearing before the Division of Housing and Development of New Jersey, Department of Community Affairs, and requested such a hearing.

On June 26, 1985, the matters were transmitted to the Office of Administrative Law as contested cases. The A.L.J. apparently consolidated the individual hearing requests into a single matter rather than considering the specific facts on each appeal. At a prehearing conference the parties agreed to enter into a joint stipulation of facts and to submit the matter for summary decision. After the stipulation of facts and briefs were filed the A.L.J. issued an "Initial Decision" on September 12, 1985, which recommended that all respondents should be entitled to relocation assistance benefits from the City of Passaic under the Relocation Act, the Relocation Law and regulations promulgated thereunder. The Commissioner's determination adopted these findings and recommendation of the A.L.J.

On appeal, the City of Passaic contends that the Commissioner's final determination ordering it to provide relocation assistance was arbitrary, unreasonable and illegal. Specifically, it argues that the Commissioner's affirmance, based on a finding that the respondents were "lawful occupants" of their apartments notwithstanding that their tenancies violated the minimum floor and/or sleeping requirements of the City's Property Maintenance Code, was erroneous as a matter of law. Inasmuch as the facts were stipulated, the issue presented on appeal is strictly a legal one. Were the respondents lawful occupants?

We begin by noting that interpretation by an administrative agency of the statute it is responsible to administer is entitled to some weight, with due regard to the agency's expertise, but it must be consistent with the policy and language of the legislation. Fiola v. N.J. Treas. Dept., 193 N.J.Super. 340, 347, 474 A.2d 23 (App.Div.1984).

In McNally v. Middletown Tp., 182 N.J.Super. 622, 625-626, 442 A.2d 1075 (1982), we recognized a statutory design to establish a uniform policy for fair and equitable treatment of persons displaced, not only by acquisition, condemnation, or voluntary rehabilitation programs, but by building code enforcement activities. As set forth in N.J.S.A. 20:4-2, such policy is to be uniform as to relocation payments, advice, housing availability, and state reimbursements.

The Legislature has spoken in several ways with respect to relocation. N.J.S.A. 2A:18-61.1(g) permits removal of residential tenants, their assigns and undertenants from buildings and tenements leased for residential purposes where, among other statutory exceptions:

... The landlord or owner (1) seeks to permanently board up or demolish the premises because he has been cited by local or State housing inspectors for substantial violations affecting the health and safety of tenants and it is economically unfeasible for the owner to eliminate the violations; (2) seeks to comply with local or State housing inspectors who have cited him for substantial violations affecting the health and safety of tenants and it is unfeasible to so comply without removing the tenant; simultaneously with service of notice of eviction pursuant to this clause, the landlord shall notify the Department of Community Affairs of the intention to institute proceedings and shall provide the department with such other information as it may require pursuant to rules and regulations ...

In 1967, the Legislature enacted the "Relocation Assistance Law of 1967," ( N.J.S.A. 52:31B-1 et seq.), providing, among other things, "for relocation assistance payments to persons or businesses displaced on account of acquisition of real property for a public use, or on account of a program of law enforcement, or on account of a program for voluntary rehabilitation of dwelling units." N.J.S.A. 52:31B-4(a). N.J.S.A. 52:31B-4(c) provides for relocation assistance payments not to exceed $200. The Relocation Assistance Law does not address directly the question of lawful occupancy.

N.J.S.A. 20:4-1 et seq. was enacted in 1972 as the "Relocation Assistance Act." As previously noted, the declaration of policy in that act, by express language, and as interpreted in McNally, extends its provisions to displacement caused by building code enforcement activities, as well as other designated causes for displacement. N.J.S.A. 20:4-4(a) authorizes "fair and reasonable relocation payments to displaced persons for actual reasonable expenses of moving." It also permits the election of payments under 20:4-4(b) in amounts not to exceed $300 for moving and $200 for dislocation allowance. No reference is made in this section of the statute to the question of lawful occupancy. In N.J.S.A. 20:4-6, however, there is authorization for additional payments to displaced persons, under certain circumstances. The statute interposes a requirement that a dwelling be "actually and lawfully occupied by such displaced person for not less than 90 days prior to the initiation of negotiations for acquisition ..." N.J.S.A. 2A:18-61.1(g) provides that no warrant for possession shall be issued unless there has been compliance with both the Housing Relocation Act and the Housing Relocation Law of 1967.

Both the Relocation Assistance Act and the Relocation Assistance Law of 1967 authorize the promulgation of appropriate regulations.

Consistent with the purpose to achieve uniform, fair and equitable treatment of persons displaced due to state and local programs of acquisition, Code enforcement and voluntary rehabilitation of buildings, the Department of Community Affairs promulgated regulations which are embodied in N.J.A.C. 5:11-1.1 et seq. In N.J.A.C. 5:11-1.2, the regulations set forth as the definition of "displaced" 1 the following:

... means required to vacate any real property lawfully occupied pursuant to any order or notice of any displacing agency on account of a program of acquisition, code...

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