Herrera v. Township of South Orange Village

Decision Date28 December 1993
Citation637 A.2d 526,270 N.J.Super. 417
PartiesRufina HERRERA, Petitioner-Appellant, v. TOWNSHIP OF SOUTH ORANGE VILLAGE, Respondent-Respondent.
CourtNew Jersey Superior Court — Appellate Division

Joan Pransky, Newark, argued the cause for appellant (Seton Hall University School of Law Center for Social Justice, attorney).

David Schechner, West Orange, argued the cause for respondent Township (Schechner and Targan, attorneys).

Cheryl R. Clarke, Deputy Attorney General, argued the cause for respondent Dep't of Community Affairs (Fred DeVesa, Acting Attorney General, attorney; Joseph L. Yannotti, Assistant Attorney General, of counsel).

Before Judges MUIR, Jr., THOMAS and LEVY.

The opinion of the court was delivered by

MUIR, Jr., J.A.D.

Petitioner Rufina Herrera appeals from a final determination of the Commissioner of the Department of Community Affairs. The Commissioner held that Herrera is not entitled to relocation assistance benefits under either the Relocation Assistance Law of 1967, N.J.S.A. 52:31B-1 to -12, or the Relocation Assistance Act, N.J.S.A. 20:4-1 to -22, as those statutes are referred to by the Anti-Eviction Act, N.J.S.A. 2A:18-61.19, and as they are implemented by promulgated regulations, N.J.A.C. 5:11-1.1 to -9.3. The Commissioner's determination accepted an Administrative Law Judge's decision that, to be eligible for assistance, Herrera had to be a lawful occupant of the third floor apartment in which she resided and that, due to the fact the apartment violated South Orange's zoning ordinance, her occupancy was illegal. The Administrative Law Judge refused to consider the issue of whether petitioner had waived her entitlement to assistance. We affirm the determination but for reasons other than those relied upon by the Commissioner.

The Legislature has determined several circumstances when relocation assistance shall be provided. The Relocation Assistance Law of 1967 provides "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). The Law allows assistance not to exceed $200. N.J.S.A. 52:31B-4(c).

The Relocation Assistance Act was enacted in 1972 to provide "a uniform policy for fair and equitable treatment of persons displaced by acquisition of real property by State and local acquisition programs, by building code enforcement activities, or by a program of voluntary rehabilitation of buildings or other improvements conducted pursuant to governmental supervision." N.J.S.A. 20:4-2. This Act provides for a moving expense allowance not to exceed $300 and a dislocation allowance of $200. It also allows for replacement housing costs for tenants not to exceed $4,000.

The influence these relocation assistance statutes have on dispossess actions is set out in N.J.S.A. 2A:18-61.1g. When a landlord is confronted with citations for substantial violations affecting the health and safety of a tenant, any subsequent warrant of removal engendered thereby is stayed pending compliance with the applicable provisions of the 1967 and 1972 statutes.

Petitioner reads all the statutory provisions to require relocation assistance in this instance. We disagree.

We are satisfied from our review of the statutes, the implementing regulations, and the explicating decisional law that petitioner, if she qualifies at all, is entitled to assistance afforded only by the Relocation Assistance Law of 1967. The Relocation Assistance Act, N.J.S.A. 20:4-1 to -22, applies only to those instances where a municipality displaces persons for building code enforcement activities, but not for zoning ordinance enforcement activities. Zoning ordinances are distinguishable from building codes. The former are enacted pursuant to the Municipal Land Use Law, see N.J.S.A. 40:55D-1 to -129, while the latter are governed by N.J.S.A. 52:27D-123. 1 Had the Legislature intended the Relocation Assistance Act to apply to zoning ordinance enforcement, it could have said so. Statutes are to be construed as written, not according to some unexpressed intention. Dacunzo v. Edgye, 19 N.J. 443, 451, 117 A.2d 508 (1955). Moreover, the words of a statute are to be given their ordinary and well-understood meaning. Fahey v. City of Jersey City, 52 N.J. 103, 107, 244 A.2d 97 (1968). We consequently conclude none of the 1972 Act's provisions encompass persons displaced as the result of zoning ordinance enforcement. See Haddock v. Department of Community Dev., City of Passaic, 217 N.J.Super. 592, 598, 526 A.2d 725 (App.Div.1987); McNally v. Township of Middletown, 182 N.J.Super. 622, 625-26, 442 A.2d 1075 (App.Div.1982). The language of N.J.S.A. 2A:18-61.1g does not expand the Act's scope.

On the other hand, the language of the Relocation Assistance Law of 1967 is less precise. It applies to "a program of law enforcement," a term the statute does not define. Thus, it is less clear whether the 1967 Law applies to zoning ordinance enforcement.

Initially, the Department of Community Affairs considered the term to include zoning ordinance enforcement. Regulations promulgated to carry out the provisions of the two relocation assistance statutes at issue here, under the topic "Eligibility," initially provided:

Whenever a State Agency or unit of local government undertakes a program of building code enforcement, housing code enforcement, health code enforcement or zoning code enforcement that causes the displacement of people, ... the said State Agency or unit of local government shall provide relocation payments and assistance to all lawful occupants who are displaced....

[ N.J.A.C. 5:11-2.1(a) (emphasis added) ]

However, in apparent response to an unpublished opinion of this court in Moran v. Randolph Tp., 6 N.J.A.R. 58, 60 (Dep't of Community Affairs 1980), rev'd, Moran v. Township of Randolph, A-649-80T2 (App.Div. Jan. 20, 1983), certif. denied, 94 N.J. 573, 468 A.2d 215 (1983), and a prior hearing decision of the Commissioner in Hickey v. Borough of Park Ridge, 5 N.J.A.R. 291 (Dep't of Community Affairs 1983), the regulation was amended in 1984 to delete the phrase "zoning code enforcement." See 16 N.J.R. 175(a), 16 N.J.R. 870(b).

Thereafter, this court in Haddock v. Passaic Community Dev. Dep't, 217 N.J.Super. 592, 600-01, 526 A.2d 725 (App.Div.1987), found Moran correctly followed by the Commissioner when he made a distinction between zoning ordinance enforcement and property maintenance (housing) code enforcement. However, in Haddock we also held that in instances of program enforcement, other than zoning ordinance enforcement, a tenant would be entitled to relocation assistance where code violations were not primarily attributable to conduct of the tenant and tenants were not in possession as a result of trespass or an illegal sublease. Thus where a tenant was a legal occupant, relocation assistance had to be awarded.

The Department responded to Haddock by amending its regulations. In a regulation that became effective December 21, 1987, see 19 N.J.R. 1596(a), 19 N.J.R. 2388(c), lawful occupant is defined as "a person whose occupancy of a dwelling unit or property is recognized by the owner and is not the result of a trespass or unauthorized sublease or assignment." N.J.A.C. 5:11-1.2.

After a contested hearing in this case, an Administrative Law Judge concluded petitioner was an illegal occupant. He relied upon...

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    ... ... 283, 287, 647 A.2d 1344 (App.Div.1994); Herrera v. Township of S. Orange, 270 ... N.J.Super. 417, 420, 637 A.2d 526 ... ...
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