On appeal from the Department of Community Affairs, Docket No. OCA-276-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically Argued: January 10, 2008
Before Judges Axelrad and Sapp-Peterson.
Petitioners, Sushil Chatterjee and Abdur Rafiq, are Atlantic City homeowners whose single family properties were subject to condemnation by the Atlantic City Board of Education (BOE) in connection with a building project for the school system. Chatterjee's 1577 square foot (sf), three-story attached rowhouse was located at 58 North Windsor Avenue and Rafiq's 1380 square foot, semi-detached home was located at 45 Richmond Avenue. Both properties were located in the "Lower Chelsea" area of the city, at the southern end, directly above Ventnor.
In the fall of 2002, the BOE submitted a Workable Relocation Assistance Plan (WRAP) to the Department of Community Affairs (DCA) for payment of additional replacement housing expenses to displaced homeowners, including petitioners, which it determined to be $15,000 per property pursuant to N.J.S.A. 20:4-5. On April 1, 2003, counsel for petitioners and other affected property owners sent correspondence to the DCA challenging the WRAP and requesting DCA demand the BOE "stop all condemnation activities until such time as a proper WRAP is established."*fn1
Subsequent to December 23, 2002, the BOE filed a condemnation complaint in the Superior Court, Law Division. On September 12, 2003, the parties, through present counsel, executed consent orders for judgment in the condemnation action, filed September l7, providing that just compensation for the acquisition of Chatterjee's and Rafiq's properties was $131,250 and $140,000, respectively, and they agreed to vacate by September l2. The orders further provided for the BOE to pay each of them $15,000, plus statutory relocation expenses (moving, closing costs, etc.) (all of which were paid), further stating:
7. [BOE] understands and agrees that by execution of [these] Consent Order[s], defendant[s Chatterjee and Rafiq are] not waiving any rights regarding [their] appeal filed April l, 2003 with the . . . ("DCA").
9. The parties acknowledge there are still outstanding issues regarding additional replacement housing payments and the legitimacy of the Workable Relocation Assistance Plan, and it has been determined by the Court that the appropriate forum in which these issues should be addressed, at least in the first instance, is the Department of Community Affairs, and there presently being a request for a hearing before the Department of Community Affairs, these issues are to remain outstanding and are not resolved, waived or determined by the dismissal of the Answer.
Meanwhile, in May 2003, Rafiq purchased a 2296 square foot duplex located at 20 N. Hillside Avenue in Ventnor, approximately seven blocks south of the Ventnor-Atlantic city boundary, for $215,000. In August 2003, Chatterjee purchased a 1840 square foot single family home at 29 N. Bartram Avenue in Atlantic City (Lower Chelsea area) for $217,000.
Petitioners' application contesting the amount of relocation aid provided to them under the Relocation Assistance Act, N.J.S.A. 20:4-1 to -22, proceeded before the OAL. Petitioners urged the BOE was obligated to pay the cost of comparable replacement housing, and that the $15,000 was insufficient. They argued if they can prove comparable replacement sale or rental housing is not available, the BOE must exceed the $15,000 limitation contained in N.J.S.A. 20:4-5a*fn2 pursuant to its authority to "take such action as is necessary or appropriate to provide such housing by use of funds authorized for such project" under N.J.S.A. 20:4-9. The Administrative Law Judge (ALJ) adopted the BOE's position that the relocation funds were statutorily limited to $15,000.
On February 23, 2005, the DCA Commissioner modified and remanded the ALJ's initial decision and remanded for further factual determinations. Reading N.J.S.A. 20:4-5 with N.J.S.A. 20:4-9, in light of the remedial purpose of the Relocation Assistance Act, the Commissioner stated:
I therefore reject the finding that the $15,000 limitation set forth in . . . N.J.S.A. 20:4-5 is determinative. I find, instead, that the determinative principle is that the displacing agency must provide meaningful relocation assistance, including comparable alternative housing, before it can displace the petitioners, and that it may use project funds, if necessary, for such purpose. As provided in N.J.A.C. 5:11-3.7, the amount that the petitioners are entitled to shall not exceed the difference between the acquisition price and cost of comparable housing, as determined by a list of at least three comparable properties, an area-wide survey or some other method approved by the Department.*fn3
I therefore remand this matter to the Office of Administrative Law for a determination of what additional assistance in relocation, including, without limitation, how much additional compensation, if any, is required to meet the [BOE's] responsibilities under the relocation statutes and to provide petitioners with the difference between the acquisition price paid for their properties, ...