NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION v. ROBERT AND MICHELLE HUBER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5874-07T35874-07T3

NEW JERSEY DEPARTMENT OF

ENVIRONMENTAL PROTECTION,

Petitioner-Respondent,

v.

ROBERT AND MICHELLE HUBER,

Respondents-Appellants.

_____________________________________________________

 

Argued December 2, 2009 - Decided

Before Judges Graves, J. N. Harris and Newman.

On appeal from a Final Agency Decision of the New Jersey Department of Environmental Protection, Docket No. PEA020002-1006-01-1001.1.

Howard P. Davis argued the cause for appellants (Law Office of Howard Davis, P.C., attorneys; Mr. Davis, of counsel; Anne Ronan and Deborah Ritter, on the briefs).

Gary W. Wolf, II, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General of New Jersey, attorney for respondent; Melissa H. Raksa, Deputy Attorney General, of counsel; Mr. Wolf, on the brief).

PER CURIAM

Appellants, Robert and Michelle Huber (the Hubers), appeal from a final agency decision by the Commissioner of the Department of Environmental Protection (Commissioner), which adopted an initial decision by Administrative Law Judge (ALJ) Jeff S. Masin, ordering the Hubers to pay a civil administrative penalty assessed by petitioner Department of Environmental Protection (DEP) in the amount of $4,500 and to submit "a proposal for the full restoration of the freshwater wetlands and transition area within the conservation easement to their pre-disturbance condition . . . prepared in accordance with N.J.A.C. 7:7A-15.1." We affirm.

I.

On May 28, 1991, the DEP issued a Letter of Interpretation (LOI) to Arthur R. Ronquist, of developer Sidewood, Inc. (Sidewood), regarding "Block 90, Lot 19," which included the property in question, in Clinton Township. In the LOI, the DEP stated that the wetlands and water boundary lines delineated on a plan map entitled "LOCATION RESULTS OF FIELD INVESTIGATION FOR ARTHUR RONQUIST, BLOCK 90, LOT 19 CLINTON TOWNSHIP, HUNTERDON CO., NJ," were accurate. The LOI instructed, "[y]ou are entitled to rely upon this boundary determination for a period of five years from the date of this letter pursuant to the Freshwater Wetlands Protection Act (FWPA) Rules, N.J.A.C. 7:7A" and that for any future development plans, the boundary lines should be labeled: "Freshwater Wetlands/Waters Boundary Lines as verified by NJDEP on May 10, 1991, file #1006-91-0006.1-FWLI." The LOI also stated that the DEP "determined that the wetlands on the subject property are of Intermediate resource value, and the standard transition area or buffer required adjacent to these wetlands is 50 feet." The wetlands and transition areas were depicted on a 1992 Stream Encroachment Study Map and a 1992 Wetlands Delineation Map.

On October 7, 1992, the DEP issued several waivers, including a Freshwater Wetlands Statewide General Permit and a Transition Area Waiver - Averaging Plan (hereinafter collectively called the "Wetlands Permit"), to Sidewood for Block 90, Lot 17, which contained defendants' subject property, Block 90, Lot 17.11. In the Wetlands Permit, the DEP explained that instead of imposing the required transition area adjacent to wetlands of fifty feet, the DEP would permit "encroachment only in that portion of the transition area that has been determined by the [DEP] to be necessary to accomplish the authorized activities." "Any additional prohibited activities conducted within the standard transition area on-site [would] require a separate transition area waiver" from the DEP, according to the Wetlands Permit. The Wetlands Permit required Sidewood to sign a "Department approved deed restriction . . . which shall be included on the deed and recorded in the office of the County Clerk . . . ." The Wetlands Permit mandated that the "restriction shall state that no regulated activities shall occur in the modified transition area or adjacent wetlands without the prior approval" of the DEP. The Wetlands Permit also stated that the restriction "shall run with the land and be binding upon all successive owners."

The Wetlands Permit led to Sidewood portioning land into a deed restriction/conservation easement. The easement was comprised of the land beginning approximately eighteen feet off the southern back corner from the house now occupied by the Hubers and approximately thirteen feet off the northern back corner of the house.

The conservation easement was delineated on a map entitled, "Septic As-Built," dated July 1, 1994. This map shows that a patio/deck encroached, in part, on the conservation easement.

On August 8, 1994, Sidewood transferred ownership of and title to Block 90, Lot 17.11, to Richard and Jeannie Schmidt. The deed was recorded on August 16, 1994, at the County Clerk's office, in Book 1112, pages 0662 to 0664. Recorded with the deed was a sheet of paper entitled "METES AND BOUNDS." Among the provisions listed on this paper was the following provision: "Subject to NJDEPE Freshwater Wetlands Permit No. 1006-91-0017.5TW, which is dedicated to Clinton Township by conservation easement described as follows," and it recited the metes and bounds of the conservation easement.

On July 28, 1997, the Schmidts transferred the property to James and Elaine Reid, and the deed was recorded on September 17, 1997. This deed did not refer to the conservation easement.

On January, 4, 1999, the property was acquired by the Hubers, and the deed was recorded on February 23, 1999. A title insurance report, effective December 28, 1998, issued to the Hubers, indicated that the property was "[s]ubject to . . . conservation easement . . . and wetlands delineation line as shown on Map No. 1145." The report also stated that the property was also subject to "Freshwater Wetlands Permit in Deed Book 1 112 Page 659 and Deed Book 1 112 Page 662."

The Hubers claimed that when they bought the property, a mowed lawn existed in the backyard, within the conservation easement.

After purchasing the property in 1999, the Hubers admittedly placed soil or sod to remedy a steep slope behind their driveway/garage.

The DEP became aware of the conditions on the Hubers' property after a neighbor made a complaint about their lawn and the placement of fill within wetlands. After the complaint was made, the Hubers met with a DEP representative and learned about the presence of the conservation easement.

On July 3, 2002, Michael Nystrom, a DEP Supervisor in the Northern Regional office of the Bureau of Coastal and Land Use Compliance and Enforcement (BLUCE), inspected the Hubers' property.

Nystrom observed that native vegetation had been removed from, and fill in the form of soil and sod had been placed in, the freshwater wetlands and the adjacent transition area on the site. Nystrom performed three soil borings, which he said were within the boundaries of the wetlands. At each soil boring location, Nystrom claimed that he performed the "three-parameter approach," which entails identifying wetlands by "evaluating (1) whether the soil is hydric, (2) its hydrology, and (3) the surrounding vegetation." Nystrom said that the three-parameter approach revealed "hydric soil, hydrology consistent with wetlands and a dominance of hydrophytic (water-loving) vegetation." Regarding the first criteria of the approach, Nystrom found that the soil "demonstrated the chroma and redoximorphic features (mottles) necessary to satisfy the low chroma requirement of a hydric soil." Pertaining to the second criteria, Nystrom said his visual observations "confirm[ed] that the Hubers' property surrounding the removed vegetation and fill material had hydrology consistent with wetlands." Nystrom specified that "each sample area demonstrated at least one primary or two secondary hydrology indicators as required by the 'evidence of hydrology' criterion." For the third criteria, Nystrom found that the sampled areas were dominated by facultative, facultative wet, and/or obligate plants "suitable for life in wet conditions." Nystrom filled out information in a Wetlands Determination Data sheet based on the soil borings and the three-parameter approach.

On August 15, 2002, a site meeting was held. At the meeting, Armand Perez, a Principal Environmental Specialist with the DEP, observed a "stabilized area at the toe of [a] slope . . . that it appeared as though some stabilization measures took place, seed and straw," which "indicat[ed] a previously exposed area, exposed soil." The DEP estimated approximately 2500 square feet of fill was placed at "the toe of the slope below the Hubers' driveway." At the meeting, the DEP determined the Hubers' deck, patio, and retaining wall, all constructed prior to the Hubers' acquisition of the property, were partially constructed within the area of the conservation easement. This encumbrance is depicted in the Septic As-Built Plan. The DEP also claimed that it then confirmed that the fill material and the Hubers' mowed manicured lawn extended into the easement, the regulated wetlands, and the regulated transition areas.

On September 5, 2002, the DEP issued a Notice of Violation (NOV) to the Hubers for the removal of native vegetation from, and the placement of fill in the form of soil and sod in, the freshwater wetlands and transition area. In the NOV, the DEP instructed the Hubers to submit a proposal, within thirty days, with plans to restore the freshwater wetlands and transition areas to their pre-disturbance conditions.

Correspondence ensued between representatives of the Hubers and the DEP to restore the property, however this issue was never resolved.

On October 2, 2003, the DEP issued an Administrative Order and Notice of Civil Administrative Penalty Assessment (AONOCAPA) to the Hubers. The AONOCAPA stated that the Hubers' deck, patio, and retaining wall occupied some of the conservation easement's land and that the Hubers had placed fill and maintained and mowed a manicured lawn on land that was designated as regulated freshwater wetlands and within the conservation easement. The DEP assessed the Hubers with a $4,500 fine and ordered them to submit a proposal for restoration of the property to its pre-disturbance condition. The Hubers appealed and requested an administrative hearing. As a contested case, the matter was referred to the Office of Administrative Law.

On March 31, 2006, the DEP submitted a motion for summary decision. On July 18, 2006, the Hubers submitted a cross-motion for summary decision.

ALJ Masin heard argument regarding these motions on February 16, 2007. In an interlocutory order dated March 9, 2007, the ALJ denied both motions but found that the conservation easement was properly recorded, binding on the Hubers, and enforceable by the DEP. However, because the ALJ found that the record was insufficient for a "definitive determination of whether the Hubers' admitted filling-in . . . actually involved the placement of fill within the restricted areas," the ALJ determined a plenary hearing must be held.

At the hearing, the DEP claimed that the Hubers' violations entailed placing fill behind their driveway, mowing the lawn, maintaining the deck, patio, and retaining wall on some land that is part of the conservation easement, and placing fill on lands designated as freshwater wetlands and as a transition area. Regarding the lawn, the DEP asserted that the lawn extended approximately 150 feet beyond the conservation easement boundary and into the wetlands.

The DEP presented an aerial photograph, taken in 1991, of the property at the hearing. Perez testified that the photograph did not indicate a lawn existed on the property at the time, but rather, it showed there was "poor pasture land." Perez testified that another photograph, taken before 1991, showed that there was no lawn on what became the Hubers' property. Perez also explained how mowing alters the existing pattern of vegetation.

Perez testified, "I believe the conservation easement was deeded to Clinton Township," "I believe they would have zoning jurisdiction over the conservation easement," and "DEP would have wetland and transition area jurisdiction over the conservation easement."

Nystrom also testified at the hearing for the DEP. He confirmed the existence of wetlands on the property. He explained how he conducted the three-parameter approach on the Hubers' property. He also said that he observed evidence of a mowed lawn on the transition area and wetlands.

Nystrom said that before he arrived at the Hubers' residence, he was not sure if the Hubers would be hostile towards him, but he recalled being relieved because the Hubers were "very nice" and "polite." Nystrom testified that he was given permission to enter the Hubers' property before inspecting it. Mr. Huber denied that he consented and claimed that he was away on vacation that day.

Mr. Huber testified that he stopped mowing some of the property in 2003.

Following the hearing, the ALJ issued an initial decision on April 30, 2008. The ALJ found by a preponderance of the credible evidence that the Hubers placed fill "in at least one restricted area in the backyard area." The ALJ found that it was clear that the Hubers were mowing and maintaining a manicured lawn which was in the "restricted conservation and wetland areas."

The Commissioner issued a final decision on June 23, 2008. In the final decision, the Commissioner found the ALJ's factual findings and conclusions of law to be proper and well supported by the record. The Commissioner adopted the initial decision and ordered the Hubers to comply with the terms of the AONOCAPA. The Commissioner ordered the Hubers to submit "a proposal for the full restoration of the freshwater wetlands and transition area within the conservation easement to their pre-disturbance condition . . . prepared in accordance with N.J.A.C. 7:7A-15.1." The Commissioner stated that the Hubers may include with their proposal, facts and information substantiating the Hubers' claim that "removal of the retaining wall and deck will create a hazardous condition and impose an unreasonable economic burden on them." The Commissioner instructed:

[i]n order for the Department to consider approving the retention of these structures, [the Hubers] must present a robust restoration plan for all of the other unauthorized activities that took place within the freshwater wetlands transition area (including removal of vegetation and placement of fill in the form of soil and sod) and within the area extending into the deed restricted conservation area and regulated wetlands (including the mowing and maintenance of manicured lawn).

The Commissioner, lastly, ordered the Hubers to fully restore, without exception, these areas to their "pre-disturbance condition."

This appeal followed. The Commissioner denied a stay of the final decision on August 22, 2008.

On appeal, the Hubers raise the following arguments for our consideration:

I. THE DEP DID NOT PROVE AN ENFORCEABLE CONSERVATION EASEMENT AGAINST MOWING AND PASSIVE ENJOYMENT OF THE PROPERTY AS IT EXISTED WHEN SIDEWOOD TRANSFERRED TITLE.

A. The intended conservation easement was never recorded.

B. Ambiguous deed restrictions are unenforceable.

C. DEP has no standing to enforce the "conservation easement."

II. THE DEP DID NOT PROVE THAT THE HUBERS VIOLATED THE FWPA.

A. DEP did not prove the existence, location or resource value of wetlands on the Hubers' property during their ownership.

1. The Nystrom evidence should be excluded because he searched the Hubers' residential property without a warrant or their consent.

2. Even with Nystrom, DEP did not prove any violations.

a. Nystrom did not test the areas of alleged disturbance.

b. Nystrom took no measurements to locate his samples.

c. Nystrom's field records are imprecise and incomplete.

1. The field reports are missing necessary data.

2. The field records do not include measurements.

3. DEP did not prove the existence of any transition areas.

III. THE DEP MAY NOT HOLD THE HUBERS RESPONSIBLE FOR THE DEVELOPER'S ACTS.

A. The statute is clear.

B. Close precedent disallows the DEP's interpretation.

IV. CONTINUED MAINTENANCE OF THE PROPERTY IS PERMISSIBLE UNDER N.J.A.C. 7:7A-2.6(b)(1).

A. DEP's new version of the regulation may not be enforced retrospectively against the Hubers.

V. EQUITY SHOULD PREVENT DEP'S PROSECUTION THEREIN.

A. DEP should be barred by laches, estoppel, and waiver.

II.

The Hubers argue that because the Wetlands Permit was never recorded as intended and the reference in the 1994 deed to the Wetlands Permit did not specify the restrictions of the conservation easement, the conservation easement is not enforceable against the Hubers.

The ALJ, in the interlocutory order, found that the 1994 deed defined the metes and bounds of the easement, and that a "search conducted thereafter of the chain of title would have identified the existence of a Freshwater Wetlands Permit by its number and a conservation easement created thereby affecting the property." The ALJ noted that this, in fact, occurred when the title insurance company conducted the title search for the Hubers. Even though the deed did not specify that regulated activities could not occur in the modified transition area or adjacent wetlands without prior approval of the DEP, the ALJ pointed out that the Hubers were specifically alerted to the facts that there was a conservation easement, which was described in the deed by its metes and bounds, and a Wetlands Permit, which was identified by number in the deed, each affecting the property they were seeking to purchase.

The ALJ found that the Hubers had notice that easements and permits affected the property. The ALJ concluded that if the Hubers had engaged in due diligence, "they could readily have determined to what extent the use of their property was restricted by the conservation easement and the Permit." Determining that the Hubers were bona fide purchasers with notice, unlike the purchasers in Island Venture Assocs. v. New Jersey Dep't of Environmental Protection, 179 N.J. 485 (2004), the ALJ found the conservation easement was applicable.

"It is well recognized that a record which affords record notice of the transfer therein made may contain a statement or recital which does not of itself give either record notice or actual notice but which does place on inquiry one who is affected by the record." Garden of Memories, Inc. v. Forest Lawn Mem'l Park Ass'n, 109 N.J. Super. 523, 535 (App. Div.), certif. denied, 56 N.J. 476 (1970). "A purchaser who is placed on inquiry is chargeable with notice of such facts as might be ascertained by a reasonable inquiry." Ibid. Hence, within the expansive framework of our State's recording statutes, our courts "charge a subsequent purchaser with notice of a recorded instrument if it 'can be discovered by a reasonable search of the particular chain of title.'" Island Venture, supra, 179 N.J. at 493.

Here, the Wetlands Permit instructed Sidewood to record a deed restriction that states, "no regulated activities shall occur in the modified transition area or adjacent wetlands without the prior approval of the Department." Sidewood did not record a restriction with such language, but rather, it included language in the 1994 deed that it was "subject to NJDEPE Freshwater Wetlands Permit No. 1006-91-0017.5TW, which is dedicated to Clinton Township by a conservation easement" and set forth its metes and bounds. This deed restriction preceded the drafting of N.J.A.C. 7:15-1.7, and we do not hold it subject to that regulation retrospectively. To be sure, this deed and the reference to the conservation easement were recorded, even though the deed restriction was not recorded as the DEP had intended.

The Hubers had constructive notice of the deed restriction because a reasonable inquiry would have uncovered the Wetlands Permit and its restrictions. The 1994 deed, which referred to the permit, was only five years old. The chain of title was not so vast that this deed would go unnoticed upon inspection. Further, the deed stated that it was subject to a conservation easement, gave the relevant metes and bounds, and acknowledged it was "[s]ubject to NJDEPE Freshwater Wetlands Permit No. 1006-91-0017.5TW," and the title report indicated that the property was subject to the easement. A reasonable inquiry would include contacting the DEP to discover what restrictions were imposed upon the property by the Wetlands Permit. As a consequence, the Hubers are charged with constructive notice of the deed restriction because a reasonable inquiry would have identified it.

The Hubers contend that the Wetlands Permit and the deed restriction are ambiguous and, therefore, unenforceable. Even though this argument was not raised before the ALJ, we will consider it.

The Wetlands Permit expressly stated that "the deed restriction shall state that no regulated activities shall occur in the modified transition area or adjacent wetlands without the prior approval of the Department." Although the deed restriction in the 1994 deed itself did not state the language required by the Wetlands Permit, the Wetlands Permit is unambiguous as to the parties' intent, and the deed restriction itself sets forth the applicable metes and bounds of the permit. The deed restriction may be enforced because it is unambiguous.

The Hubers contend that the DEP may not enforce the conservation easement because the easement was dedicated to Clinton Township, as evidenced by the language of the Sidewood deed and the 1994 "Septic As-Built" map.

Our Legislature has expressed its intent regarding the DEP's protection of our State's wetlands, under the scheme of the FWPA:

The Legislature finds and declares that freshwater wetlands protect and preserve drinking water supplies by serving to purify surface water and groundwater resources; that freshwater wetlands provide a natural means of flood and storm damage protection, and thereby prevent the loss of life and property through the absorption and storage of water during high runoff periods and the reduction of flood crests; that freshwater wetlands serve as a transition zone between dry land and water courses, thereby retarding soil erosion; that freshwater wetlands provide essential breeding, spawning, nesting, and wintering habitats for a major portion of the State's fish and wildlife, including migrating birds, endangered species, and commercially and recreationally important wildlife; and that freshwater wetlands maintain a critical baseflow to surface waters through the gradual release of stored flood waters and groundwater, particularly during drought periods.

The Legislature further finds and declares that while the State has acted to protect coastal wetlands, it has not, except indirectly, taken equally vigorous action to protect the State's inland waterways and freshwater wetlands; that in order to advance the public interest in a just manner the rights of persons who own or possess real property affected by this act must be fairly recognized and balanced with environmental interests; and that the public benefits arising from the natural functions of freshwater wetlands, and the public harm from freshwater wetland losses, are distinct from and may exceed the private value of wetland areas.

The Legislature therefore determines that in this State, where pressures for commercial and residential development define the pace and pattern of land use, it is in the public interest to establish a program for the systematic review of activities in and around freshwater wetland areas designed to provide predictability in the protection of freshwater wetlands; that it shall be the policy of the State to preserve the purity and integrity of freshwater wetlands from random, unnecessary or undesirable alteration or disturbance; and that to achieve these goals it is important that the State expeditiously assume the freshwater wetlands permit jurisdiction currently exercised by the United States Army Corps of Engineers pursuant to the Federal Act and implementing regulations.

[N.J.S.A. 13:9B-2.]

The FWPA "provides a comprehensive scheme for the regulation and protection of New Jersey's freshwater wetlands." MCG Assocs. v. Dep't of Envtl. Prot., 278 N.J. Super. 108, 111 (App. Div. 1994). The FWPA "established a program of systematic review of wetlands, consolidated all regulatory programs affecting wetlands . . ., and imposed permit and transition area requirements . . . ." A.R. Criscuolo & Assocs., Inc. v. N.J. Dep't of Envtl. Prot., 249 N.J. Super. 290, 297 (App. Div. 1991).

According to the FWPA, transition areas serve as:

(1) [a]n ecological transition zone from uplands to freshwater wetlands which is an integral portion of the freshwater wetlands ecosystem, providing temporary refuge for freshwater wetlands fauna during high water episodes, critical habitat for animals dependent upon but not resident in freshwater wetlands, and slight variations of freshwater wetland boundaries over time due to hydrologic or climatologic effects; and

(2) [a] sediment and storm water control zone to reduce the impacts of development upon freshwater wetlands and freshwater wetlands species.

[N.J.S.A. 13:9B-16(a).]

The DEP has explained that a transition area subject to a conservation easement is especially important "because it represents the portion of the transition area that remains after other portions have been eliminated. It is therefore important that it remain entirely unaltered." 39 N.J.R. 3587(a) (Sept. 4, 2007). Cf. In re Protest of Coastal Permit Prog. Rules, 354 N.J. Super. 293, 368 (App. Div. 2002).

Deed restrictions, such as this conservation easement, serve to protect the freshwater wetlands. The Legislature passed the FWPA to protect the freshwater wetlands. In order to accomplish this objective, the FWPA's comprehensive scheme requires the preservation of transition areas. Enforcement of a conservation easement, which serves as a transition area, enables the DEP to accomplish its statutory objective of protecting the wetlands. Hence, enforcement falls within the DEP's incidental powers, and the DEP may enforce this conservation easement, despite its dedication to Clinton Township, against the Hubers.

III.

The Hubers argue that the DEP failed to demonstrate that they violated the FWPA since it did not prove the existence of the freshwater wetlands.

In the ALJ's initial decision, the ALJ noted that in his interlocutory order he determined that the Hubers had constructive notice of the conservation easement, that the deck and patio had been built on the conservation easement before the Hubers acquired the property, and that the Hubers admitted to placing fill somewhere close to the conservation easement. Reviewing the evidence, the ALJ noted that Perez testified that the Hubers' mowed land extended approximately 150 feet beyond the conservation easement boundary and that 39,000 square feet of lawn had been mowed. The ALJ reviewed the photographs that showed Mr. Huber placing fill on what Perez identified as the wetlands. The ALJ noted that Perez testified that he observed about twenty square feet of the Hubers' deck and their retaining wall extended into the conservation easement. The ALJ reviewed the LOI and pointed out that Nystrom confirmed the presence of the wetlands during his inspection. The ALJ discussed how Nystrom performed soil borings near the fill placed by the Hubers and that he determined the fill was placed near freshwater wetlands based on his analysis of the three-parameter approach.

The ALJ found that Mr. Huber placed fill in the conservation easement based on his own admission, that he placed fill in a restricted area in the backyard, and that the Hubers maintained a mowed lawn in the "conservation and wetland areas." The ALJ, however, noted that he Hubers did not place the deck or retaining wall that slightly protrudes into the conservation easement, and therefore, he ordered the DEP to "seriously consider allowing the Hubers to retain the deck and retaining wall 'as is.'"

In the Commissioner's final decision, the Commissioner adopted the ALJ's initial decision.

Our review of an agency's factual determinations entails determining "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record considering the proofs as a whole with due regard to the opportunity of the one who heard the witnesses to judge their credibility." In re Taylor, 158 N.J. 644, 656 (1999) (internal quotations and citations omitted). We are satisfied that the findings made by the ALJ and adopted by the Commissioner are fully supported by the credible evidence in the record.

The Hubers argue that the evidence collected by Nystrom should be excluded because he did not possess an administrative search warrant to search their property. We disagree.

We need not determine if Nystrom had consent to conduct an inspection and testing on the Hubers' property. We realize that there was a factual dispute on this issue which was not resolved by the ALJ. However, we are persuaded that consent was not essential and that Nystrom had statutory authority to enter the property and perform his inspection.

State statutory schemes have permitted administrative agencies to conduct warrantless inspections. Such warrantless inspections have generally involved a pervasively or closely regulated industry and an administrative inspection scheme. See N.J. Dep't of Envtl. Prot. v. Duran, 251 N.J. Super. 55 (App. Div. 1991); Greenblatt v. N.J. Bd. of Pharmacy, 214 N.J. Super. 269 (App. Div. 1986); State v. Bromell, 251 N.J. Super. 85, 91 (Law Div. 1991). In permitting such warrantless searches, our courts have adopted the analytical framework set forth in New York v. Burger, 482 U.S. 691, 699, 107 S. Ct. 2636, 2642, 96 L. Ed. 2d 601, 612 (1987); State v. Turcotte, 239 N.J. Super. 285, 291-94 (App. Div. 1990). Three criteria must be met in order for a warrantless search of a regulated industry or activity to be deemed constitutionally reasonable. Turcotte, supra, 239 N.J. Super. at 292. "First, there must be a 'substantial government interest that informs the regulatory scheme pursuant to which the inspection is made.'" Ibid. (quoting Burger, supra, 482 U.S. at 702, 107 S. Ct. at 2644, 96 L. Ed. 2d at 614). "Second, the warrantless inspection must be 'necessary to further [the] regulatory scheme.'" Ibid. (quoting Burger, supra, 482 U.S. at 702, 107 S. Ct. at 2644, 96 L. Ed. 2d at 614). "Third, the regulatory inspection 'in terms of the certainty and regularity of its application,' must provide a constitutionally adequate substitute for a warrant." Id. at 293 (quoting Burger, supra, 482 U.S. at 703, 107 S. Ct. at 644, 96 L. Ed. 2d at 614).

This analysis is satisfied by the comprehensive regulatory scheme under FWPA. This court has recognized that activity "integrally related to the issue of water pollution and conservation of resources" is extensively regulated in this State. In re Envtl. Prot. Dep't, 177 N.J. Super. 304, 313 (App. Div. 1981). The Wetlands Permit applicable to this property brought it directly under the regulatory arm of the DEP just as much as if it was regulated industry. Further, such an inspection is authorized by the FWPA to ascertain compliance with the Act. N.J.S.A. 13:9B-21(m). See also N.J.S.A. 13:1D-9(d) (authorizing the DEP to "[e]nter and inspect any property, . . . premise[], site, or place for the purpose of . . . ascertaining compliance or noncompliance with any laws, permits . . ., and regulations of the department"). Nystrom had the authority to enter the Hubers' property, conduct his inspection, and perform his testing to determine if the Hubers were in violation of the FWPA. He did not have to secure an administrative search warrant to fulfill his regulatory duties.

The Hubers assert that Nystrom's inspection was deficient because he did not test areas of the alleged disturbance but rather tested adjacent soil, that he did not take measurements to measure the distance or to pinpoint the location of where he performed the soil borings, and that he did not fill out all of the data in the Wetlands Determination Data Report.

On cross-examination, Mr. Huber asked Nystrom whether he made any specific measurements when he conducted his inspection on the Hubers' property. Nystrom said that he estimated and paced distances. Huber also questioned Nystrom about where he conducted the soil borings. Nystrom said he conducted the first soil boring in a wetlands area near an area that had been filled, and he marked it on a photograph and map for the ALJ. He also marked where he conducted the other soil borings. Nystrom said that his soil borings never were done directly through fill but rather along the edges of fill.

In the ALJ's initial decision, which was adopted by the Commissioner, the ALJ noted that Perez conducted five inspections of the Hubers' property, Perez reviewed charts, photographs, and documents which showed no lawn existed on the property prior to the FWPA's enactment, and that a mowed lawn was maintained beyond the conservation easement and into the wetlands. The ALJ also noted that the Hubers acknowledged placing fill near their driveway and that Perez identified that the fill was placed within the conservation easement. Moreover, the ALJ stated that Perez found that the patio, deck, and retaining wall extended into the conservation easement. The ALJ also observed that photographs showed that fill was placed beyond the wetlands. Regarding Nystrom's inspection, the ALJ noted that Nystrom confirmed that wetlands were present on the Huber property by conducting soil borings and the three parameter approach.

Although Mr. Huber questioned Nystrom about the locations of the soil borings, how he measured distances, and where he conducted the soil borings, Mr. Huber did not raise the issues regarding "[m]issing necessary data," imprecise or incomplete records. Moreover, there is no specification as to what is missing, not precise enough, or incomplete. These contentions lack any factual substance and are rejected.

As already mentioned, "an appellate court may not 'engage in an independent assessment of the evidence as if it were the court of first instance.'" Taylor, supra, 158 N.J. at 656. An administrative agency's findings of fact "are considered binding on appeal when supported by adequate, substantial, and credible evidence." Id. at 656-57 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co, 65 N.J. 474, 484 (1974)).

The testimony of Perez, Nystrom, and Mr. Huber and the photographs of Mr. Huber placing fill on the property adequately support the Commissioner's finding that the Hubers violated the FWPA. Nystrom and Perez pointed out on photographs and maps where they observed fill and that they were placed in freshwater wetlands and the transition area. Nystrom also said that pacing was an accurate method for estimating the distances and that his borings were within the wetlands area. Nystrom's testimony regarding the soil borings and the three-parameter approach support the finding that the wetlands and, therefore, the transition area existed on the property. It is undisputed that the retaining wall, deck, and patio encroach on the conservation easement. Moreover, it is undisputed that the Hubers had maintained a manicured lawn up until 2003, if not more recently. The evidence from Nystrom's inspection, along with substantial other credible evidence which we have described, amply supports the Commissioner's final decision.

IV.

The Hubers argue that the language of the FWPA does not support the DEP's enforcement of the FWPA "for Sidewood's apparent violations." They argue for a strict interpretation of N.J.S.A. 13:9B-21, which authorizes the DEP to take action against a "person [who] is in violation of [the FWPA], or any rule or regulation adopted, or permit or order issued," and that under N.J.S.A. 13:9B-3, the definition of person does not include "successor in interest," "subsequent property owner," or the like. The Hubers maintain that this definition does not include and should not apply to successors in title. This argument primarily focuses on the violation regarding the patio, deck, and retaining wall.

In the Commissioner's final decision, after reviewing the legislative intent of and the remedies provided for in the FWPA, the Commissioner had this to say:

[s]afeguarding the public health, safety and welfare is an essential government function and police power. Environmental protection legislation, given its clear purpose of protection of public health, safety and welfare, is entitled to especially liberal construction for its beneficient objectives. Thus, given its duty to protect the environment, the DEP has been granted broad powers as necessary to give full effect to the FWPA and its regulations. Also, given the insidious cumulative effect of losses of wetlands, although the effect of the loss of a particular wetland may not be quantifiable or may seem minimal, that is not a reason to exclude that wetland from protection under the FWPA.

[(Internal citations omitted).]

The Commissioner continued:

[t]o effectuate the broad purposes of the FWPA, the Department must have the right to determine, on a case-by-case basis, whether to order restoration, monetary penalties, or both, and the specifics of these penalties. Here the Department established that [the Hubers] purchased the property with notice of the conservation easement and the restrictions it imposed . . . . While [the Hubers] may have "bought the violation" created by the deck and retaining wall, allowing them to avoid restoration of this area simply on this basis ignores the vital importance of the State's wetlands and the broad powers that the Department must be able to exercise to protect them . . . . Violations cannot be legalized simply by selling the property to another, and such violations should not be allowed to be legalized, in effect, by exempting subsequent property owners who bought with knowledge of these violations.

Ordinarily, courts give substantial deference to an agency's interpretation of a statute it is charged with enforcing. Lourdes Med. Ctr. of Burlington County v. Bd. of Review, 197 N.J. 339, 361 (2009). Although a court is not "bound by the agency's interpretation of a statute . . ., [courts] give considerable latitude when [the agency] construes the 'express and implied powers' of a statute for the purpose of carrying out legislative intent." Ibid. (citation omitted).

To protect transition areas and freshwater wetlands, the FWPA prohibits the erection of structures, the "[r]emoval, excavation, or disturbance of the soil," and the "[p]lacement of pavements" on transition areas without the approval of the DEP. N.J.A.C. 7:7A-2.5(f); N.J.A.C. 7:7A-2.6(a). However, the FWPA permits certain "regulated activities," when they are "performed in a manner that minimizes the adverse effects to the transition area and adjacent freshwater wetlands." N.J.A.C. 7:7A-2.6(b). These "regulated activities" include "[n]ormal property maintenance." N.J.A.C. 7:7A-2.6(b)(1). "Normal property maintenance" includes "activities required to maintain lawfully existing artificial and natural features, landscaping and gardening." N.J.A.C. 7:7A-2.6(b)(1)(i).

The Legislature has directed that "[w]henever, on the basis of available information, the commissioners find that a person is in violation of any provision of [the FWPA], or any rule or regulation adopted, or permit or order issued pursuant thereto, the commissioner may" take action to remedy the violation. N.J.S.A. 13:9B-21. The FWPA defines a person as, "an individual, corporation, partnership, association, the State, municipality, commission or political subdivision of the State or any interstate body." N.J.S.A. 13:9B-3.

Although the definition of person provided by the FWPA does not include "successors in interest" or "subsequent property owners," it is within the implied powers of the DEP to enforce the violation of the FWPA against the Hubers. As previously mentioned, the FWPA "provides a comprehensive scheme for the regulation and protection of New Jersey's freshwater wetlands." MCG Assocs., supra, 278 N.J. Super. at 111. Transition areas and conservation easements, which extend transition areas, serve to protect freshwater wetlands. N.J.S.A. 13:9B-16(a); 33 N.J.R. 3045(a) (Sept. 4, 2007). It would defeat the purpose of the FWPA, which is to protect freshwater wetlands, if, as the Commissioner stated, violations were legalized by the sale or transfer of property. This is especially true because the Hubers had notice of the conservation easement. The DEP should be permitted to enforce the violations on the Hubers' property even though the violating structures were constructed by Sidewood.

The Hubers contend that they should not be held liable for a preceding landowner's violation of the FWPA, relying on State, Department of Environmental Protection v. Arky's Auto Sales, 224 N.J. Super. 200 (App. Div. 1988). In Arky's Auto Sales, the property owner, a corporation, was not held liable under the Water Pollution Control Act for the act of its tenant's burying of steel drums which had leaked and contaminated some of the property. Id. at 208. We found that the property owner's officers and agents did not bury the steel drums, and rather that only a tenant had engaged in polluting the property without the property owner's knowledge. Id. at 205-06.

Reliance on Arky's is misplaced. Aside from the different features of the legislation involved in Arky's Auto Sales, there is no indication that the property owner was aware of the tenant's violating acts; here, the Hubers had constructive notice of the violations. The Commissioner properly held the Hubers liable.

V.

The Hubers assert that, even if the DEP had proved that the conservation easement consisted of transition areas, the Hubers are permitted to maintain their property and mow their lawn according to N.J.A.C. 7:7A-2.6(b)(1). The Hubers argue the DEP is retrospectively enforcing the regulation, as amended in 2008, which prohibits "[t]he conversion of a field to a lawn by . . . frequent mowing . . . is not considered normal property maintenance and requires a transition area waiver," should not be applied to the Hubers because it would be fundamentally unfair.

The DEP is not seeking retroactive application of the current regulation, but rather it claims that the Hubers violated N.J.A.C. 7:7A-2.6(a)(5) and N.J.A.C. 7:7A-2.6(b)(1)(i)(1) as they had been previously written.

The Commissioner, in adopting the ALJ's initial decision, denied relief upon the following reference to Perez's testimony:

[h]e explained that mowing alters the existing pattern of vegetation and insures the continuing existence of a monoculture of lawn grasses by stopping the natural succession of vegetation in the mowed areas, so that taller, woody vegetation and saplings do not generate and the area does not become more inviting to wildlife.

When the regulations for the FWPA were first adopted in 1989, N.J.A.C. 7:7A-2.6(a)(5) set forth "prohibited activities" in transition areas. 21 N.J.R. 1874 (Jul. 3, 1989). The regulation remained largely the same, but effective September 4, 2001, the regulation was amended to require DEP approval before engaging in such "regulated activities." 33 N.J.R. 3045(a) (Sept. 4, 2001); 32 N.J.R. 2693(a) (Aug. 7, 2000). N.J.A.C. 7:7A-2.6(a) lists the following as "regulated activities":

1. Removal, excavation or disturbance of the soil;

2. Dumping or filling with any materials;

3. Erection of structures;

4. Placement of pavements; and

5. Destruction of plant life which would alter the existing pattern of vegetation.

Sufficient credible evidence supports the finding that the Hubers' continued mowing of the transition area altered the existing pattern of vegetation. Perez's testimony explained the effect that mowing has existing patterns of vegetation. It is undisputed that the Hubers mowed the lawn on the transition area.

The Hubers argue that they were permitted to mow their lawn under N.J.S.A. 7:7A-2.6(b)(1)(i)(1). They claim that because their lawn was existing prior to their acquisition of the property, they should have been permitted to continue to mow the lawn.

Under N.J.S.A. 7:7A-2.6(b)(1)(i)(1), until it was amended in 2008, land owners were permitted to perform "normal property maintenance," such as mowing an existing lawn or field, in transition areas so long as the "normal property maintenance" was done in a manner that "minimizes adverse effects" on the freshwater wetlands and transition areas. See 21 N.J.R. 1875 (Jul. 3, 1989).

The Hubers' argument is flawed because their continued mowing of the transition area destroyed plant life which altered the existing pattern of vegetation. For the Hubers' mowing to have been permissible, it had to have been conducted by minimizing adverse effects to the transition area and wetlands or they would have needed DEP approval. The alteration of the existing pattern of vegetation is an adverse effect and, consequently, the Hubers' mowing was a violation of the FWPA.

The Hubers' contention that the DEP is retrospectively enforcing N.J.S.A. 7:7A-2.6(b)(1)(i) is unfounded.

The language of the regulation remained essentially the same, until October 6, 2008. See 39 N.J.R. 3587(a) (Sept. 4, 2007). Then, N.J.A.C. 7:7A-2.6(b)(1)(i)(1) was amended to read that normal property maintenance includes "[m]owing of existing lawns. The conversion of a field to a lawn by planting, seeding, frequent mowing or any other means is not considered normal property maintenance and requires a transition area waiver." See 39 N.J.R. 3587(a) (Sept. 4, 2007). The DEP explained that this amendment sought to "clarify activities that are regulated, as opposed to those that are considered normal property maintenance, reducing confusion and possible inadvertent negative impacts to transition areas." Id.

N.J.S.A. 7:7A-2.6(b)(1)(i)(1) was not amended until after the ALJ's final decision was issued. The DEP could not have retrospectively enforced a regulation against the Hubers, when the amended regulation had not even been adopted. Moreover, neither the Commissioner's decision nor the ALJ's decisions were based on the claim that the Hubers converted a field into a lawn by their mowing of the property. The basis of this violation was the alteration of the existing pattern of the transition area.

VI.

The Hubers claim that equity should prevent the DEP from enforcing the FWPA against them.

Equity does not bar the DEP from enforcing the FWPA violations. The DEP may not be equitably estopped because it never made a "knowing and intentional misrepresentation" that it would not enforce the FWPA against the Hubers or prior property owners. See O'Malley v. Dep't of Energy, 109 N.J. 309, 317 (1987). Moreover, a waiver did not take place because the DEP did not make a voluntary, clear act demonstrating its intent to waive its right to enforce the FWPA against the Hubers or prior property owners. See County of Morris v. Fauver, 153 N.J. 80, 103 (1998). Lastly, the Hubers were not misled to their harm by the DEP's delay in enforcing the FWPA violation. See id. at 105-06. In fact, shortly after the DEP received complaints about the Hubers, it inspected the premises and contacted the Hubers about the FWPA violations. We are satisfied that none of the asserted equitable remedies are available to the Hubers.

 
Affirmed.

NJDEPE is the former name of what is now the DEP.

Effective July 7, 2008, N.J.A.C. 7:15-1.7 sets forth the recording requirements for a conservation restriction. The regulation requires the conservation restriction to use the specific form and terms approved of by the DEP, to be recorded in accordance with the New Jersey Recording Act, N.J.S.A. 46:15-1.1 to 46:26-1, and to run with the property and bind the property owner and successors in interest. N.J.A.C. 7:15-1.7.

Language was added to N.J.A.C. 7:7A-2.6 specifically prohibiting normal maintenance activities in a transition area subject to a conservation easement unless the activities have been explicitly permitted by the easement. See 39 N.J.R. 3587(a) (Sept. 4, 2007).

N.J.S.A. 58:10A-1 to -43.

Previously N.J.A.C. 7:7A-6.2(a)(5).

These activities remained the same from when they were called "prohibited activities."

(continued)

(continued)

37

A-5874-07T3

January 20, 2010