On appeal from the Superior Court, Law Division, Atlantic County.
Pressler, Baime and Ashbey. The opinion of the court was delivered by Pressler, P.J.A.D. Baime, J.A.D. (concurring).
[216 NJSuper Page 438] By this action, the Public Advocate challenges the validity of conditions placed both by regulation and administrative interpretation on the availability of emergency assistance to homeless families with dependent children, pursuant to N.J.A.C. 10:82-5.10(c).*fn1 He contends that the 90-day time limitation imposed by the regulation and the fault standard employed by the administering agency in applying the regulation separately and in conjunction contravene the enabling legislation. Our review of this record persuades us that despite its apparent extensiveness and comprehensiveness, it nevertheless constitutes an inadequate basis for evaluating the Public Advocate's contention. Accordingly, we remand to the Department of Human Services, Division of Welfare (Division), for a full evidential hearing to determine whether and to what extent
there are other available resources in this state affording relief to families with dependent children who are unable, within a reasonably brief period after being rendered homeless, to obtain new permanent housing.
In order properly to focus the factual background and legal issues involved in this controversy, we refer first to the challenged regulation. N.J.A.C. 10:82-5.10(c) authorizes emergency assistance for families with dependent children
[w]hen there has been substantial loss of shelter, food, clothing, or household furnishings by fire, flood or other similar natural disaster, or when, because of an emergent situation over which they had no control or opportunity to plan in advance, the eligible unit is in a state of homelessness and the county welfare agency determines that the providing of shelter and/or food and/or emergency clothing, and/or minimum essential house furnishings are necessary for health and safety. . . .
Subparagraph (1) of that section, as amended effective June 1986, imposes a maximum 90-day time limitation on the grant of emergency assistance for shelter by restricting assistance to a "temporary period not to exceed two calendar months following the month in which the state of homelessness first becomes known to the county welfare agency." The Publicf Advocate's objection to (c)(1) is based directly on the 90-day limit itself, which, he claims, has proved in many cases to provide an insufficient time for the obtaining of new housing by displaced families. His objection to paragraph (c) is not textual but is rather based on the interpretation by the Division of the phrase "emergent situation over which they [the eligible family unit] had no control or opportunity to plan in advance." By its Public Welfare Instruction No. 85-9-1 issued on September 4, 1985, and purportedly codifying long-standing Division policy, the Division construed "emergency" as follows:
The terms " emergency " and " emergent " apply to occurrences which are sudden, unexpected and which require immediate attention. The intent of the regulation is to limit emergency assistance to occurrences in which all three criteria are present. The terms "control" and "opportunity to plan in advance" are interrelated and address the issue of whether, as in the event of a disaster, the eligible unit lacked sufficient forewarning of the event to enable the family to avoid the adverse consequences of the event. " Opportunity to plan in advance " is thus defined with respect to the length of time the
eligible unit had to plan for the emergency, and not with respect to the availability or existence of suitable or comparable alternative arrangements, e.g., shelter. The regulation is intended to meet the needs of those recipients upon whom extreme hardship has been imposed unavoidably and extends accordingly a limited degree of extra assistance, to be made available only in extraordinary circumstances. [Emphasis added].
Thus prior notice to a family of the imminence of loss of shelter is ipso facto deemed by the Division to constitute an adequate opportunity to plan which disqualifies it from eligibility for emergency assistance. Accordingly, families having prior notice of eviction by reason of code enforcement, condemnation or other cause are deemed ineligible for emergency assistance. It is apparently the Division's theory that by failing to use the opportunity afforded by the notice to obtain alternative shelter, the family itself is responsible for its ensuing homelessness. This is the "fault standard" challenged by the Public Advocate. The fundamental argument the Public Advocate makes is that the severe constraints placed on the availability of emergency assistance by both the time standard and the fault standard result in the contravention by the Division of the mandate and underlying policy of N.J.S.A. 44:10-1 et seq. (Assistance for Dependent Children), whose stated purposes are
(1) To provide for the care of eligible dependent children in their own homes or in the homes of relatives, under standards and conditions compatible with decency and health,
(2) To help maintain and strengthen family life,
(3) To help such parents or relatives to attain the maximum self-support and personal independence consistent with the maintenance of continuing parental care and protection, and
(4) To provide for the care of a dependent child whose parents have been denied assistance under the provisions of section 2. [ N.J.S.A. 44:10-2]
[ N.J.S.A. 44:10-1(a); footnote omitted]
The Public Advocate's contention in its present contextual framework has reached us by a tortuous procedural and substantive route. The Public Advocate first filed this action in February 1984. The named individual plaintiffs were six homeless and indigent men and women for whom no emergency shelter was available in Atlantic City, who lacked the means of obtaining shelter, and who therefore attempted to survive on
the streets of Atlantic City or under its boardwalk or in abandoned buildings. The gravamen of that complaint was that the City, by not providing emergency shelter for its indigent homeless, was violating obligations imposed upon it by the General Public Assistance Law, N.J.S.A. 44:8-107, et seq.
By way of interim relief, the court ordered the City "immediately to take such steps as are reasonably necessary to provide eligible persons with emergency shelter and immediate assistance as required by the Public Assistance Law and the appropriate applicable regulations." The court also granted leave to the City to file a third-party complaint against the New Jersey Department of Human Services, its Commission, and Atlantic County. That complaint, filed in April 1984, alleged that the Department had improperly failed to reimburse the City for 75% of its general assistance expenditures and that it had failed to ensure the compliance by neighboring municipalities of their respective general assistance obligations. It also alleged that although the County had, by its Department of Social Services, established a County Coordinated Emergency Assistance Network pursuant to the recommendations of the 1983 report of the Governor's Task Force on the Homeless, it had nevertheless failed either to adopt or implement the recommended regional approach to homelessness.
The litigation proceeded, and in January 1985 the trial judge entered an order adjudicating Atlantic City's obligation to provide emergency shelters for the homeless and directing the City to prepare "a comprehensive plan for the provision of safe and suitable emergency shelter and other immediate assistance (emergency shelter services) to homeless and needy persons in Atlantic City." In compliance with the order, the City ultimately prepared a comprehensive plan which it filed with the court in December 1985. The Public Advocate was thereafter granted leave to file an amended complaint alleging direct claims against the Department of Human Services and Atlantic County. The amended complaint, filed in April 1986, focused upon homeless families and asserted the standing of the Public
Advocate to sue in a representative capacity on their behalf. Insofar as the issues here are concerned, it was the allegation of the Public Advocate that the Department of Human Services and the County had failed to comply with the dictates of the state constitution and state and federal law by not having made adequate provision for the assistance of homeless families. The amended complaint also specifically challenged N.J.A.C. 10:82-5.10 as violative of state and federal law.
The response of the Department and the County to the amended complaint was a motion for summary judgment dismissing the newly added claims. The Public Advocate and the City cross-moved for summary judgment declaring a state constitutional right to shelter and invalidating the fault and time standards of the disputed regulation. Early in July 1986 the trial court granted the State and County motion in respect of the constitutional claim and dismissed that count of the amended complaint. Decision was, however, reserved on the other issues. Within several days thereafter, on July 11, 1986, the Public Advocate sought emergent relief from the trial court by way of an order requiring the Department and the County to afford emergency assistance to a group of families facing imminent homelessness. To a significant extent, the present posture of this litigation derives from that application and the proceedings both in the trial court and in this court which followed.
The occasion of the July 1986 emergency was as follows. During the pendency of the litigation, the City had voluntarily undertaken to pay for emergency motel housing for families with dependent children who had either been denied emergency assistance by the County or who had qualified for emergency assistance but had failed to find substitute housing within the time limit of the regulation. On July 7, 1986, a City representative advised the Public Advocate that, having spent over a million dollars to provide for the homeless families referred back to it by the County as either ineligible for emergency assistance or ineligible for continued assistance, the City had
exhausted all of the funds available to it by grant or appropriation. Consequently, it was forced to advise these families that they would have to vacate their motel rooms by August 11, 1986. In further support of his emergent application, the Public Advocate relied on the affidavits of seven single-parent women who were receiving AFDC assistance; who had either been declared ineligible for emergency assistance or had exhausted the time limitation; who had among them a total of nineteen children ranging in age from 3 months to 12 years; who were living in motel rooms paid for by the City; and who had been unable by their own efforts or with the assistance of others to find substitute housing for the homes they had lost by fire, code enforcement, condemnation, or eviction for other cause. While the temporary motel accommodation in all cases was unsatisfactory, it was all that protected them and their children from a total lack of shelter.
In denying the application for emergent relief, the trial judge recognized that while the homeless families who were about to lose their motel shelter would suffer irreparable harm, he was without power to direct governmental entities with respect to the allocation of their resources. He further concluded that the essence of the reserved issues raised by the amended complaint was the challenge to the validity of the limitations imposed by the emergency assistance regulation on the availability of that relief. That challenge, he concluded, and correctly so, is one required by R. 2:2-3(a)(2) to be brought in the first instance in the Appellate Division. Accordingly, he entered an order on August 15, 1986, pursuant to R. 1:13-4, transferring to this court that portion of the amended complaint attacking the regulation. We then entered an order accelerating these proceedings, which we and all parties view as limited to the issue of whether the regulation violates state and federal statute.
In October 1986 the Public Advocate applied to us for emergent relief on behalf of six families faced with imminent homelessness, only one of which ...