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In re Relocation Berwick Ice Inc.

Decided: March 22, 1989.

IN RE RELOCATION CLAIM OF BERWICK ICE, INC., PETITIONER-APPELLANT


On appeal from Final Decision of the Department of Community Affairs.

Michels, Muir, Jr. and Keefe. The opinion of the court was delivered by Muir, Jr., J.A.D.

Muir

[231 NJSuper Page 392] Berwick Ice, Inc., appeals from a final administrative determination of the Department of Community Affairs (DCA) denying its application for relocation assistance pursuant to the

provisions of the Relocation Assistance Law of 1967, N.J.S.A. 52:31B-1 et seq., and the Relocation Assistance Act of 1971, N.J.S.A. 20:4-1 et seq. The appeal raises an issue on the correlation between the 1967 and 1971 Acts and the Federal Uniform Relocation Assistance Act of 1970 (Uniform Act), 42 U.S.C. § 4601-4655. It requires us to determine whether the DCA properly rejected Berwick's application after the latter (1) received relocation assistance pursuant to the Uniform Act; (2) reapplied for further assistance and was granted only $200 on a $640,000 claim by the Newark Housing Authority (Authority); (3) appealed the Authority's limited grant to the Regional Director of the Department of Housing and Urban Development (HUD), which denied the appeal on grounds further grants were procedurally barred, and (4) then applied to the DCA for relocation benefits after apparently abandoning any judicial recourse from the HUD denial. DCA denied Berwick's application on the grounds the relief under State statutes and related regulations are not available to claimants when the Federal statutes and regulations are applicable. Accordingly, DCA denied jurisdiction. Berwick contends N.J.A.C. 5:11-9.2 required the DCA to give it an administrative law judge hearing on its claim. We disagree and affirm.

HUD provided federal financial assistance to the Authority to carry out an Urban Renewal Project in an area in Newark which included Berwick's warehouse. The Authority, by agreement, took title to the warehouse on December 30, 1982, but Berwick remained in possession pending relocation. Due to unexpected unsafe conditions in the warehouse, the Authority required Berwick to move to temporary quarters pending completion of a new warehouse. In April 1984, the Authority paid Berwick $277,500 "undocumented self move expenses." Berwick moved its personalty, essentially frozen meat, to temporary quarters. Each party "reserved their rights" in connection with the payment.

In November 1985, Berwick submitted a relocation claim for approximately $640,000 to cover costs of transfer to its new

building. After several delays, none of which are significant to this opinion, a hearing examiner for the Authority determined Berwick should be paid $200 on its claim. The Authority so notified Berwick in December 1987. In February 1988, Berwick appealed to the HUD regional office. In late March, HUD's regional office manager advised Berwick the appeal was denied on grounds no further funds could be paid due to completion of the project. Berwick took no appeal from that determination. Instead, it filed with the DCA the claim under review on this appeal.

The DCA rejection letter stated in pertinent part:

The Relocation Assistance Law of 1967, N.J.S.A. 52:31B-1 et seq., and the Relocation Assistance Act of 1971, N.J.S.A. 20:4-1 et seq. are not applicable to this matter. The Newark Redevelopment and Housing Authority displaced Berwick Ice, Inc. in accordance with the federal Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. 4601 et seq. and the regulations promulgated thereunder, 24 CFR 42.1 et seq. The state statute and related regulations are not applicable where a federal act and federal regulations are in place. The deciding agency in this matter is the Authority. Any challenge to a denial of assistance must be raised in accordance with those federal regulations and reviewed in accordance with applicable procedures. Your request for relief should be raised in the first instance to the Authority and if unsuccessful to the court with jurisdiction over this matter.

This appeal followed.

I.

UNIFORM RELOCATION ACT OF 1970

The Uniform Act and HUD regulations pursuant thereto establish "a uniform policy for the fair and equitable treatment of persons displaced as the result of Federal and federally assisted programs in order that such persons shall not suffer disproportionate injuries as the result of programs designed for the benefit of the public as a whole." 42 U.S.C.A. § 4621. The Uniform Act provides that federal financial assistance will not be available to pay all or part of the cost of any program or project after January 2, 1971, unless the State agency provides for relocation and assistance ...


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