IDALIS KIZIEE VS. CAMDEN COUNTY DEPARTMENT OF HEALTH (NEW JERSEY DEPARTMENT OF COMMUNTIY AFFAIRS) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-2284-17T4
IDALIS KIZIEE,
Petitioner-Respondent,
v.
CAMDEN COUNTY
DEPARTMENT OF HEALTH,
Respondent-Appellant.
______________________________
Argued February 11, 2019 – Decided May 23, 2019
Before Judges Haas and Sumners.
On appeal from the New Jersey Department of
Community Affairs, Agency Docket No. OCA 211-17.
Howard Goldberg, First Assistant County Counsel,
argued the cause for appellant (Christopher A. Orlando,
County Counsel, attorney; Howard Goldberg, on the
brief).
Sonia L. Bell argued the cause for respondent Idalis
Kiziee (South Jersey Legal Services, Inc., attorneys;
Sonia L. Bell, on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent Department of Community Affairs
(Dominic L. Giova, Deputy Attorney General, on the
statement in lieu of brief).
PER CURIAM
The Camden County Department of Health (the County) appeals the final
agency decision of the Commissioner of the Department of Community Affairs,
which adopted the initial decision of the Administrative Law Judge (ALJ) that
ordered the County to pay relocation assistance in accordance with the
Relocation Assistance Act (Relocation Act), N.J.S.A. 20:4-1 to -22, and the
Relocation Assistance Law of 1967 (Relocation Law) , N.J.S.A. 52:31B-1 to -
12, to Idalis Kiziee because she received oral and written notice from the County
to vacate her rental home (the property) due to mold infestation. The County
contends the Commissioner's ruling is arbitrary, capricious or unreasonable
because it did not direct Kiziee and her family to vacate the property as required
by the Relocation Act and the Relocation Law (collectively the legislation). We
agree with the ALJ's interpretation of the legislation, statutes and the
implementing regulations, and applying our deferential standard of review to a
state agency's fact-finding decisions, we affirm.
It is well settled that the Legislature fashioned a statutory design in the
legislation to establish a uniform policy for fair and equitable treatment of
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persons displaced, not only by acquisition, condemnation, or voluntary
rehabilitation programs, but also by building code enforcement activities.
McNally v. Middletown Twp., 182 N.J. Super. 622, 625-626 (App. Div. 1982).
The Relocation Law 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
Relocation Act was enacted to provide "a uniform policy for fair and equitable
treatment of persons displaced by the acquisition of real property by State and
local land 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.
The dispute before us involves whether the County directed Kiziee to
vacate the property due to mold infestation, which thereby entitles her to
relocation expenses under the legislation. Following a fact finding hearing at
which Kiziee and Ann Biondi, the County's Director of Health and Human
Services, testified, the ALJ found that Kiziee, her husband, and their three
children were directed in writing, as well as given verbal direction, to leave the
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property because of mold infestation in the children's bedroom and a second
floor closet caused by a leaking roof.
The ALJ cited inspections by Winslow Township and the County. The
township's Chief Inspector inspected the property after Kiziee retained a private
inspection, and he issued a violation notice 1 requiring the property owner to hire
a certified mold remediation company to remove mold in all areas of infestation.
This was followed by an inspection by the County's Health Officer, who also
reviewed the private inspection report. The Health Officer issued a verbal and
written recommendation that the family should vacate the property. According
to the ALJ, the verbal recommendation was to do so "as soon as possible."
About two weeks later, the family moved out of the property, and Kiziee sought
relocation assistance approximately three weeks later. The County denied the
request for assistance.
In deciding in Kiziee's favor, the ALJ cited the Relocation Act and the
Relocation Law, stating that they both
demonstrate the public policy to provide for the
protection of the health and welfare of the residents of
this State in order to assure the uniform, fair and
equitable relocation of persons displaced by State and
local land acquisition, activities, projects, and code
enforcement. The Legislative policy expressly states
1
In total, the violation notice identified fourteen code violations.
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that the act should be liberally construed to effectuate
the purposes and intent thereof. N.J.S.A. 52:31B-2;
N.J.S.A. 20:4-2.
The ALJ also cited regulations promulgated by the Department of
Community Affairs to carry out the legislation. She referenced N.J.A.C. 5:11-
2.1(a), which provides:
Whenever a State Agency or unit of local government
undertakes a program of building code enforcement,
housing code enforcement or health code enforcement
that causes the displacement of any person, the said
State Agency or unit of local government shall provide
relocation payments and assistance to all lawful
occupants who are displaced, as provided in N.J.A.C.
5:11-3 and 4. The date of eligibility shall be the date
occupants received formal written notice to vacate from
the State Agency or unit of local government. Said
written notice shall include the information required
pursuant to N.J.A.C. 5:11-4.2.
The ALJ pointed out the notification requirements under N.J.A.C. 5:11-
4.2 required that
[w]henever a displacing agency determines that their
activities shall cause a displacement of individuals or
businesses that are eligible for relocation payments and
assistance, the displacing agency shall notify those
individuals and businesses, in writing, at the earliest
possible date of the benefits and obligations of the Act
and this chapter. Said notice shall be issued
immediately upon the determination of the displacing
agency that displacement shall occur. The notice shall
contain the nature and types of payments and assistance
available, the eligibility criteria, and a notice that the
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displacee should not vacate the property prior to being
authorized to do so in order to remain eligible for
payment and assistance and that they should continue
to pay rent to the landlord, as provided by the law.
To determine whether Kiziee and her family were displaced, the ALJ cited
the Relocation Act, which defines a displaced person as:
A person who moves or discontinues his business or
moves other personal property, or moves from his
dwelling on or after the effective date of this act as the
direct result of code enforcement activities, or a
program of rehabilitation of buildings conducted
pursuant to a governmental program, is deemed to be a
displaced person for the purposes of this act.
[N.J.S.A. 20:4-14.]
She also relied upon the Relocation Law that states the term "displaced"
shall mean required to vacate any real property, or any
tenancy therein, pursuant to any lawful order or notice
of any State agency or unit of local government on
account of the acquisition of any real property for a
public use, or on account of a program of law
enforcement, or on account of a program or project for
the voluntary rehabilitation of dwelling units.
[N.J.S.A. 52:31B-3(e).]
The ALJ then cited McNally, where we relied upon the statutory
provisions and the same regulations to determine that the Commissioner
properly allowed relocation assistance where the inhabitant vacated her home
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"by virtue of the direct, not indirect, action of [the township's] building
inspector." 182 N.J. Super. at 626.
Consequently, the ALJ concluded that Kiziee received "both oral and
written notice to vacate [her] rental home because of a serious health condition,
and the notification is within purview of the applicable statutes and regulations
to qualify for relocation assistance."
Before us, the County argues that Kiziee was not displaced due to a law
enforcement process and that the Relocation Law does not apply to her situation
because she was not provided a written notice to vacate the property. Thus, it
asserts the ALJ, and in turn the Commissioner, misapplied the law. We are not
persuaded.
Our scope of review of an administrative agency's final decision is limited.
In re Hermann, 192 N.J. 19, 27 (2007). The "final determination of an
administrative agency . . . is entitled to substantial deference." In re Eastwick
Coll. LPN-to RN Bridge Program, 225 N.J. 533, 541 (2016). To that end, 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
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supported by substantial evidence." In re Virtua-West Jersey Hosp. Voorhees
for a Certificate of Need, 194 N.J. 413, 422 (2008).
Additionally, we give "due regard to the opportunity of the one who heard
the witnesses to judge . . . their credibility[,]" and, therefore, accept their
findings of fact "when supported by adequate, substantial and credible
evidence[.]" In re Taylor, 158 N.J. 644, 656 (1999). "'Deference to an agency
decision is particularly appropriate where the interpretation of the [a]gency's
own regulation is in issue.'" R.S. v. Div. Med. Assistance & Health Servs., 434
N.J. Super. 250, 261 (App. Div. 2014) (quoting I.L. v. N.J. Dep't of Human
Servs., Div. of Med. Assistance & Health Servs., 389 N.J. Super. 354, 364 (App.
Div. 2006)). "Nevertheless, 'we are not bound by the agency's legal opinions.'"
A.B. v. Div. of Med. Assistance & Health Servs., 407 N.J. Super. 330, 340 (App.
Div. 2009) (quoting Levine v. State Dep't of Transp., 338 N.J. Super. 28, 32
(App. Div. 2001)). "Statutory and regulatory construction is a purely legal issue
subject to de novo review." Ibid. (citing Mayflower Sec. Co. v. Bureau of Sec.,
64 N.J. 85, 93 (1973)).
We have considered the County's contentions that the ALJ's initial
decision, which was fully adopted by the Commissioner, is arbitrary, capricious
or unreasonable. In light of the record and applicable legal principles, we
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conclude they are without sufficient merit to warrant a discussion in a written
opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed
in the ALJ's decision, which is supported by sufficient credible evidence in the
record, Rule 2:11-3(e)(1)(D), and is not arbitrary, capricious, or unreasonable.
Affirmed.
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