NJ: Residential property on regulated wetlands subject to reasonable entry to inspect alleged violations

When a landowner takes residential property subject to a deed restriction showing that it is subject to the N.J. Freshwater Wetlands Protection Act, there is a reduced expectation of privacy to entries onto the land by regulators. It is not highly regulated, just regulated, and entries are still subject to reasonableness. N.J. Dep’t of Envtl. Prot. v. Huber, 213 N.J. 338, 63 A.3d 197 (2013):

Although the Act expects permittee consent, and will penalize the permittee who denies a DEP representative reasonable entry onto property to inspect for compliance with the Act, the inspection scheme taken as a whole does not purport to authorize forcible, nonconsensual entry into the backyard of a residential property owner. Rather, the Act provides a means for the DEP to obtain judicial access to secure a court-issued injunctive order authorizing the administrative search to which the DEP is entitled. Here, as in Barlow’s, supra, the regulatory scheme represents a choice to proceed by process when entry is refused, and its effectiveness should not be hobbled by that requirement, just as OSHA’s was not. See 436 U.S. at 319, 98 S. Ct. at 1823-24, 56 L. Ed. 2d at 315-16. Implementing regulations anticipate notice to the permit holder upon the presentation of credentials by an inspector, N.J.A.C. 7:7A-13.1(a)(9), and enforcement is furthered through a Commissioner order, issued under N.J.S.A. 13:9B-21(b), and, if necessary, through the available judicial process authorized by N.J.S.A. 13:9B-21(c). In this context, the standard of proof to gain court-ordered entry to a property is different than probable cause in the criminal context; probable cause in the administrative-search context “may be based not only on specific evidence of an existing violation but also on a showing that ‘reasonable legislative or administrative standards for conducting an … inspection are satisfied.'” Barlow’s, supra, 436 U.S. at 320, 98 S. Ct. at 1824, 56 L. Ed. 2d at 316 (1978) (footnote omitted) (quoting Camara, supra, 387 U.S. at 538, 87 S. Ct. at 1736, 18 L. Ed. 2d at 941).

The FWPA’s inspection scheme cannot fairly be viewed as unreasonable as applied to a residential homeowner whose property is subject to a FWPA permit because, by seeking the permit to disturb land on or near otherwise statutorily protected wetlands, a landowner and his or her successors in title are bound to compliance with the permit. That includes compliance with the permitting scheme’s mechanism that authorizes reasonable entry onto land affected by the permit to ensure that these valuable natural resources are maintained as required by the conditions of the permit. Indeed, if the DEP could only inspect the permitted areas on the basis of probable cause that a violation had occurred, the damage would already be done, and the FWPA would be relegated to a damages recovery mechanism. Such an interpretation would undermine the proactive role taken by the Legislature for protecting, in advance, freshwater wetlands from disturbance. See Hubner, supra, 203 N.J. at 194 (reiterating judicial responsibility to discern and implement legislative intent); Merin, supra, 126 N.J. at 436 (same). Rather, probable cause must be understood in the context of the legislative and administrative regulatory program that includes a right to access and inspect property.

Here, the regulatory scheme anticipates thoughtful steps and provides constitutional recourse for the DEP to secure access to inspect land subject to a FWPA permit for compliance with the strict protections placed on freshwater wetlands and transition areas. Moreover, the permitting scheme ensures that an order is issued to gain peaceful, nonforcible entry to inspect at a reasonable time when consensual entry is denied and access must be compelled. Hence, the order demanding entry that the Commissioner may issue, and that the Superior Court may enforce, need simply request entry in order for the DEP to proceed with a statutory inspection program that is neither arbitrary nor capricious. Cf. Barlow’s, supra, 436 U.S. at 320-25, 98 S. Ct. at 1824-27, 56 L. Ed. 2d at 316-19.

Turning to consideration of the permittee’s expectation of privacy, when 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. As previously noted, a permittee must recognize he or she is bound to the permit scheme as part of seeking DEP approval to disturb statutorily protected wetlands and transition areas that are otherwise secured from damaging contact for the public’s benefit. Put simply, the rights of the FWPA permittee are subject to the statutory scheme by which the permit operates, and that includes submitting to a reasonable inspection scheme. 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. The FWPA declared wetlands to be so imbued with a public interest that such land cannot be developed under the FWPA. See N.J.S.A. 13:9B-11. When development at or near them is allowed, the land must be maintained as conditioned in the permit and transition area waivers that are issued to allow the landowner some nearby use of otherwise restricted property. 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.