Supreme Court of New Jersey,No. A-116 September Term 2010 065540, April 4, 2013: Inspection under wetlands permit on conservation easement constitutionally permitted.

The Hubers’ residence includes land subject to a wetlands permit under New Jersey’s Freshwater Wetlands Protection Act (FWPA; N.J.S.A. 13:9B-1 to -30) and a deed restriction/conservation easement to their Township. After a neighbor complained about fill within wetlands, a New Jersey Department of Environmental Protection (DEP) representative went to the Huber residence, identified himself, and was permitted to inspect the subject land. The inspector found violations and the DEP imposed a civil penalty and restoration remedy on Huber. After administrative appeals were exhausted, the penalty and remedy were upheld and the Hubers challenged them in court.

On appeal, the Hubers argued that the inspector’s testimony, based on observations made during that inspection, should not have been included in the record because it was a warrantless search that violated the protections against unreasonable search under the Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution. Without that testimony, the Hubers said, the violations were not proven to exist. The NJ Appellate Division rejected that constitutional argument.

The NJ Supreme Court, the state’s highest court, initially refused to hear an appeal of that decision. The Hubers filed a petition for certiorari to the United States Supreme Court to hear the constitutional case. When the Supreme Court denied certiorari Justices Alito, Roberts, Scalia and Thomas questioned whether relevant federal precedent on this subject applied to residential property. Huber v. New Jersey Department of Environmental Protection, ___ U.S. ___, 131 S. Ct. 1308, 179 L. Ed. 2d 643 (2011).  The NJ Supreme Court (referred to in this blog post as “the court”) then took up the appeal.

After reviewing the federal precedents allowing certain warrantless searches of commercial premises operated for a “pervasively regulated business” — New York v. Burger, 482 U.S. 691, 699-702, 107 S. Ct. 2636, 2642-44, 96 L. Ed. 2d 601, 612-14 (1987),  applied in New Jersey in State v. Turcotte, 239 N.J. Super. 285, 291-94 (App. Div. 1990), andCamara v. Mun. Court of San Francisco, 387 U.S. 523, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967) – the court held that those precedents do not extend to a private residence. The court wrote that the reasoning in Burger and the criteria it established by which to test the validity of a warrantless search “fail to provide support for a general extrapolation … to the more heightened privacy interests that are associated with a private, residential property”.

The court nevertheless held that because of the extent of the provisions in New Jersey’s statutes and regulations detailing the procedures for DEP wetlands inspections (including procedures for when the property owner doesn’t consent to inspection), the DEP inspector’s testimony could be constitutionally admissible. The court cited United States Supreme Court precedents for the proposition that “process to enforce a reasonable, non-arbitrary inspection scheme can be compliant with Fourth Amendment protections, despite the lack of consent by the property owner, provided the regulatory scheme advances important governmental interests, takes into account reasonable expectations of privacy, and avoids nonconsensual, forcible entry accomplished outside of the warrant framework.” Marshall v. Barlow’s, Inc., 436 U.S. 307, 98 S. Ct. 1816, 56 L. Ed. 2d 305 (1978) (workplace safety), Colonnade Corp. v. United States, 397 U.S. 72, 90 S. Ct. 774, 25 L. Ed. 2d 60 (1970) (liquor dealerships) and United States v. Biswell, 406 U.S. 311, 92 S. Ct. 1593, 32 L. Ed. 2d 87 (1972) (firearms).

The court wrote:

“[W]hen a private land owner takes property subject to a recorded deed restriction that allowed development to occur conditioned on the issuance of a carefully delineated wetlands permit and transition area waiver, the permittee cannot claim a full expectation of privacy to such protected lands…. In view of the vital importance of protecting freshwater wetlands in New Jersey, privacy expectations to freshwater wetlands and transition areas that are subject to a FWPA permit are diminished…. In effect, a property owner receives the right to develop restricted land in exchange for giving the right of reasonable entry to the DEP to inspect. To be sure, this bargained-for exchange is subject to the reasonableness of the entry and search.”

 Having gone through this entire analysis, the court then decided the case on the basis of evidence in the record other than the inspector’s testimony.  The court said it would be inappropriate on appeal for the court to weigh the credibility of the inspector’s and Huber’s different accounts of whether the inspector was refused access for inspection. Nevertheless, even excluding the inspector’s testimony, the court found “more than sufficient evidence” to sustain the findings of a violation by the Hubers. The court affirmed the Appellate Division’s judgment upholding the administrative order and penalty.

The court also declined to rule on whether the DEP has a right to enter and inspect land subject to a conservation easement under the New Jersey Conservation Restriction and Historic Preservation Restriction Act (Preservation Act). N.J.S.A. 13:8B-1 to -9, generally as a matter of law, and specifically as applied to the conservation easement in this matter. That Act allows the DEP to enforce a conservation restriction by entering the land to assure compliance with the restriction. N.J.S.A. 13:8B-3.

Decision available by search at http://www.judiciary.state.nj.us/opinions/index.htm (temporarily) or http://njlaw.rutgers.edu/collections/courts/search.php.