NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION COASTAL AND LAND USE COMPLIANCE AND ENFORCEMENT v. JOHN BLEIMAIER
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0001-16T3
NEW JERSEY DEPARTMENT OF
ENVIRONMENTAL PROTECTION,
COASTAL AND LAND USE
COMPLIANCE AND ENFORCEMENT,
Petitioner-Respondent,
v.
JOHN BLEIMAIER and MARINA
PUSHKAREVA,
Respondents-Appellants.
______________________________
Argued December 12, 2017 – Decided March 28, 2018
Before Judges Fisher, Sumners and Moynihan.
On appeal from the Department of Environmental
Protection.
John Kuhn Bleimaier argued the cause for pro
se appellant.
Aaron A. Love, Deputy Attorney General, argued
the cause for respondent (Gurbir S. Grewal,
Attorney General, attorney; Melissa Dutton
Schaffer, Assistant Attorney General, of
counsel; Aaron A. Love, on the brief).
PER CURIAM
Appellants John Bleimaier and Marina Pushkareva appeal the
July 20, 2016 final decision of the Commissioner of the Department
of Environmental Protection (DEP) adopting the administrative law
judge's grant of the DEP's cross-motion for summary decision and
denial of appellants' motion for summary decision. The DEP issued
an Administrative Order and Notice of Civil Administrative Penalty
Assessment — after appellants filled and graded their delineated-
flood-hazard-area property in Lawrence Township without a permit
– directing appellants to restore the property to its prior
condition and pay a $16,000 civil penalty.
Appellants contend in their merits brief:
POINT I: THE DECISION OF THE DEP COMMISSIONER
WAS UTTERLY ARBITRARY, CAPRICIOUS, [AND]
UNREASONABLE.
POINT II: IN ACCORDANCE WITH N.J.A.C. 7:13-
2.4(a)(1) ONLY AN ALTERATION OF TOPOGRAPHY IS
A REGULATORY EVENT REQUIRING AN APPLICATION
TO [THE] DEP.
POINT III: THE DEP MADE NO TECHNICAL FINDINGS
AND PRESENTED NO TOPOGRAPHIC OR ENGINEERING
EVIDENCE. [THE] DEP HAS NOT BORNE ITS BURDEN
OF PROOF.
POINT IV: [THE] DEP BROUGHT NO EXPERTISE OR
SPECIALIZED KNOWLEDGE TO BEAR IN THIS CASE.
POINT V: THE REPORT PREPARED BY THE
HOMEOWNERS' LICENSED SURVEYOR SHOWS THAT THERE
WAS NO CHANGE IN TOPOGRAPHY AS A RESULT OF THE
HOMEOWNERS['] EROSION REMEDIATION AND THUS NO
REGULATORY EVENT.
2 A-0001-16T3
POINT VI: IT IS IMPROPER TO IMPOSE A PENALTY
IN THE ABSENCE OF CULPABILITY. THE DEP
PENALTY HERE IS ARBITRARY, CAPRICIOUS [AND]
UNREASONABLE.
POINT VII: THE CONDUCT OF [THE] DEP IN THIS
CASE HAS REPRESENTED A DENIAL OF
CONSTITUTIONALLY MANDATED DUE PROCESS.
And they argue in their reply brief:
POINT I: IN ORDER TO PUNISH A HOMEOWNER FOR
THE PLACEMENT OF FILL WITHOUT A PERMIT THE DEP
MUST SHOW THAT THERE HAS BEEN AN ALTERATION
OF TOPOGRAPHY.
POINT II: THE DEP EXERCISE OF DISCRETION HAS
BEEN ARBITRARY AND CAPRICIOUS IN VIOLATION OF
CONSTITUTIONAL PROTECTIONS.
POINT III: THE APPELLANTS' OPPOSITION TO
SUMMARY JUDGMENT BEFORE THE DEP COMMISSIONER
WAS SUPPORTED BY AN AFFIDAVIT SIGNED BY THE
HOMEOWNERS.
POINT IV: THE APPELLATE DIVISION REVIEWS THE
DECISION OF THE DEP COMMISSIONER DE NOVO. IT
IS APPROPRIATE TO VACATE THE JUDGMENT IN THE
AGENCY'S FAVOR AND GRANT THE APPELLANTS'
MOTION FOR SUMMARY JUDGMENT IN LIGHT OF THE
FACTS PRESENTED.
POINT V: THE INTRODUCTION OF FILL DOES NOT
REQUIRE A PERMIT IN THE ABSENCE OF [AN]
ALTERATION OF TOPOGRAPHY, EVEN WITHIN A FLOOD
HAZARD AREA OR A RIPARIAN ZONE.
POINT VI: FEDERAL LEGISLATION PREEMPTS AND IS
INCONSISTENT WITH THE NEW JERSEY DEPARTMENT
OF ENVIRONMENTAL PROTECTION'S POSITION IN THIS
CASE (NOT RAISED BELOW).
We disagree with appellants' arguments and affirm.
3 A-0001-16T3
The standard governing review of an agency's summary decision
"under N.J.A.C. 1:1-12.5 is 'substantially the same as that
governing a motion under Rule 4:46-2 for summary judgment in civil
litigation.'" L.A. v. Bd. of Educ. of Trenton,
221 N.J. 192, 203
(2015) (quoting Contini v. Bd. of Educ. of Newark,
286 N.J. Super.
106, 121 (App. Div. 1995)). "[A] court must ascertain 'whether
the competent evidential materials presented, when viewed in the
light most favorable to the non-moving party in consideration of
the applicable evidentiary standard, are sufficient to permit a
rational factfinder to resolve the alleged disputed issue in favor
of the non-moving party.'" Id. at 204 (quoting Brill v. Guardian
Life Ins. Co. of Am.,
142 N.J. 520, 523 (1995)). "A court is 'in
no way bound by [an] agency's interpretation of a statute or its
determination of a strictly legal issue.'" Ibid. (alteration in
original) (quoting N.J. Div. of Youth & Family Servs. v. T.B.,
207 N.J. 294, 302 (2011)). "Because an agency's determination on
summary decision is a legal determination, our review is de novo."
Ibid.
Appellants do not dispute that their property lies within a
regulated flood hazard area — Shipetauken Creek. Nor do they
dispute that they did not have a permit. Appellants argue they
did not engage in a regulated activity because N.J.A.C. 7:13-
2.4(a)(1) – which defines regulated activity, in pertinent part
4 A-0001-16T3
as "[a]ny action that includes or results in . . . [t]he alteration
of topography through . . . placement of fill" – does not prohibit
homeowners from remediating erosion if they do not alter the
preexisting topography. We reject that argument recognizing that
although we are not bound by the agency's legal conclusions, Levine
v. State, Dep't of Transp.,
338 N.J. Super. 28, 32 (App. Div.
2001), "[a]n administrative agency's interpretation of statutes
and regulations within its implementing and enforcing
responsibility is ordinarily entitled to our deference," In re
Appeal by Progressive Cas. Ins. Co.,
307 N.J. Super. 93, 102 (App.
Div. 1997).
When it was proposed, the comment to N.J.A.C. 7:13-2.4(a)(1)
indicated the intention was "to clarify which activities are and
are not regulated under" the rules promulgated pursuant to the
Flood Hazard Area Control Act1 (the Act), N.J.A.C. 7:13-1.1 to
19.2.
38 N.J.R. 3966 (Oct. 2, 2006). The comment specified
regulated activities requiring a permit included "any topographic
alteration, such as excavation, grading or the placement of fill."
Ibid. (emphasis added) (commenting on N.J.A.C. 7:13-2.4). Under
N.J.A.C. 7:13-1.2, "'fill' means to deposit or place material on
the surface of the ground and/or under water. 'Fill' also means
1 N.J.S.A. 58:16A-50 to -103.
5 A-0001-16T3
the material being deposited or placed," and includes "earth" and
"soil." N.J.A.C. 7:13-7.1, which permits "[n]ormal property
maintenance," specifically excludes "[g]rading and other changes
in topography" and "placement of fill." Another section of the
rules authorizes "placement of no more than five cubic yards of
landscaping material," which includes "stone, topsoil, woodchips,
or other landscaping material." N.J.A.C. 7:13-7.7. Appellants'
actions do not fall within these permitted activities.
The DEP's interpretation of the regulation – that any fill
above the five-yard-limit that changes the existing topography
requires a permit – is consistent with the rule's stated purpose
and with the State's public interest declared when the Act was
adopted, "that legislative action be taken to empower the [DEP]
to delineate and mark flood hazard areas [and] to authorize the
[DEP] to adopt land use regulations for the flood hazard area."
N.J.S.A. 58:16A-50(b). The DEP sought to further those objectives
by adopting regulations "governing human disturbance to the land
and vegetation in . . . flood hazard area[s]," N.J.A.C. 7:13-
1.1(a), in order to "minimize damage to life and property from
flooding caused by development within flood hazard areas, to
preserve the quality of surface waters, and to protect the wildlife
and vegetation that exist within and depend upon such areas for
sustenance and habitat," N.J.A.C. 7:13-1.1(c).
6 A-0001-16T3
We therefore reject appellants' argument that they did not
need a permit to remediate erosion if they did not alter the
preexisting topography. Under appellants' theory, a landowner
could place fill in a flood hazard area without a permit by picking
an arbitrary period and claiming she or he was simply restoring
the topography that existed at that time. That interpretation
contravenes both the logical agency interpretation and the purpose
of the Act. Further, we agree with the ALJ's finding that
appellants' "claim that the fill did not change the topography
from what it may have been prior to [the date fill was first
observed being placed in the flood zone] is unsupported by any
meaningful evidence."
We also reject appellants' contention that the DEP's proofs
failed due to the lack of expert testimony. The signed
certifications of Lawrence Township Engineer James F. Parvesse2
and DEP Senior Environmental Specialist Michael D. Palmquist 3
provided sufficient evidence.
2
Parvesse set forth his education and experience in his
certification: he received a Bachelor of Science degree in civil
engineering and — as of February 2012 — was a licensed professional
engineer, a certified municipal engineer, and had served as the
township engineer for four years.
3
Palmquist's February 2012 certification recited that he received
a Bachelor of Science degree in geo-environmental science, and had
been a senior environmental specialist in the Bureau of Coastal
and Land Use Compliance & Enforcement since July 2007.
7 A-0001-16T3
Parvesse visited the property on April 8, 2010, and observed
"multiple piles of fill around the front, sides, and rear of the
residence that appeared to have been recently dumped, but not yet
spread or graded" and "a layer of fill covering a large area in
the rear yard" the depth of which he estimated to be at least
twelve inches at the center; truck-tire ruts – approximately eight
inches deep – were visible in one of the loads of "newly-spread
fill" in the rear yard. He also noticed "fill had been spread
back into the woods adjacent to a tributary to . . . Shipetaukin
Creek." A bulldozer was present on the property. He saw "two
double-axle dump trucks" – estimated by Parvesse to have an
approximate ten-cubic-yard capacity – empty their full loads onto
the rear of the property in his presence. Parvesse also spoke
with a woman who claimed to be "the [property] owners' daughter,"
who stated "it was her idea to have the fill delivered and spread
on the property, and that she 'had no idea' that she needed a
permit."
During Palmquist's site inspection on November 30, 2010, he
measured a "largely bare and unvegetated" filled area behind the
residence – approximately 175 feet by 180 feet – which he estimated
to be twelve inches deep. He calculated the volume of that fill
to be 1166 cubic yards; his calculation did not include areas of
fill in the front and side yards of the residence because the
8 A-0001-16T3
volume of fill in the rear yard exceeded the "maximum threshold
for fill volume in the 'seriousness' matrix."
This competent evidence proved that well over the five-cubic-
yard maximum of fill was placed and graded without a permit in the
flood zone, altering the topography of appellants' property,
justifying the summary decision in favor of the DEP.
We see no merit to appellants' claim that the penalty imposed
was arbitrary and capricious because it was based on an "almost
unconstitutionally vague formula." "[A]ppellate review of an
agency's choice of sanction is limited." In re License Issued to
Zahl,
186 N.J. 341, 353 (2006). "Courts generally afford
substantial deference to the actions of administrative agencies
. . . ." Ibid. "Deference is appropriate because of the 'expertise
and superior knowledge' of agencies in their specialized fields
and because agencies are executive actors." Ibid. (quoting
Greenwood v. State Police Training Ctr.,
127 N.J. 500, 513 (1992)).
In exercising . . . authority to alter a
sanction imposed by an administrative agency,
the [c]ourt can do so only when necessary to
bring the agency's action into conformity with
its delegated authority. The [c]ourt has no
power to act independently as an
administrative tribunal or to substitute its
judgment for that of the agency. It can
interpose its views only where it is satisfied
that the agency has mistakenly exercised its
discretion or misperceived its own statutory
authority.
9 A-0001-16T3
[In re License of Polk,
90 N.J. 550, 578
(1982).]
"[T]he test in reviewing administrative sanctions is 'whether such
punishment is "so disproportionate to the offense, in the light
of all the circumstances, as to be shocking to one's sense of
fairness."'" Ibid. (quoting Pell v. Bd. of Educ.,
313 N.E.2d 321,
327 (N.Y. 1974)).
The penalty – sanctioned by statute,
N.J.S.A. 58:16A-63 —
followed the established penalty matrix and considered the type
of violation, the conduct of appellant, the seriousness of the
violation and the duration of the violation.4 The DEP determined
appellants did not, by filling without a permit, intend to violate
the Act; but found it foreseeable that appellants' actions would
require a permit. The amount of fill – not including that placed
in the rear and side yards – exceeded the maximum volume of that
part of the matrix assessing the seriousness of the violation.
The DEP, in its discretion, decided not to sanction appellants for
each of the 322 days of noncompliance; rather, it imposed a penalty
for four days of violations, and imposed a total penalty of
$16,000. We conclude the DEP was not arbitrary or capricious in
imposing the penalty. We need not reach appellants' constitutional
4
Palmquist's certification sets forth the method of calculation.
10 A-0001-16T3
argument,5 which, in any event, we deem without sufficient merit
to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
The penalty was not excessive – especially considering the maximum
possible fine of $25,000 per day,
N.J.S.A. 58:16A-63(d) – and thus
did not offend the Eighth Amendment as argued by appellants.
We also determine the balance of appellants' arguments are
similarly meritless. R. 2:11-3(e)(1)(E).
Appellants' expert's uncertified report and survey were
correctly rejected. N.J.A.C. 1:1-12.4(a). The Commissioner also
noted the expert's report
was not based on knowledge of fill placed on
the property and in fact stated that any
amount of additional fill between 1997 and
2013 "could not be determined in the field due
to the period of time which has elapsed since
the fill was introduced." Even assuming that
the report and survey had been authenticated,
they do not controvert [the] DEP's visual and
documentary evidence.
Appellants' unsigned affidavit was, likewise properly disallowed.
N.J.A.C. 1:1-12.4(a).
The DEP did not impose a penalty for any violations related
to the Freshwater Wetlands Protection Act (FWPA),
N.J.S.A. 13:9B-
5
See Randolph Town Ctr., LP v. Cty. of Morris,
186 N.J. 78, 80
(2006) (stating, "[c]ourts should not reach a constitutional
question unless its resolution is imperative to the disposition
of litigation").
11 A-0001-16T3
1 to -30, only the Flood Hazard Area Control Act – so the lack of
evidence relating to the FWPA is of no consequence.
The DEP played no role in causing any delay in the resolution
of this case; the delay was caused by the illness of the ALJ
initially assigned to the case. In fact, during that time, the
deputy attorney general, for the DEP, submitted several letters
requesting a disposition on the motions. Appellants, who were not
deprived of the use of their property and did not sustain any
proven financial burden during the delay, have not shown a due
process violation.
That the trucking company that delivered the fill was not
charged is of no moment. Summary decision against appellants was
still appropriate; the trucking company's actions did not abrogate
appellants' liability.
Finally, we will not consider appellants' federal preemption
argument raised for the first time in their reply brief. See
Borough of Berlin v. Remington & Vernick Eng'rs,
337 N.J. Super.
590, 596 (App. Div. 2001) (stating, "[r]aising an issue for the
first time in a reply brief is improper").
Affirmed.
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