N.J. high court backs DEP searches of private property

Posted: April 05, 2013

TRENTON - Environmental officials are entitled to conduct searches of private property where they have grounds to suspect environmental laws have been violated, New Jersey's Supreme Court ruled Thursday.

The court said in a unanimous opinion that homeowners and others who acquire permits under the state Freshwater Wetlands Protection Act agree as part of the process to allow such inspections, so long as they are conducted at reasonable times.

In its 56-page opinion, the court said the government's right to search for wetlands violations carries restrictions. Environmental officials may not forcibly enter a property and in cases where there is a dispute, must first seek an order from the Department of Environmental Protection commissioner. The homeowner has the right to contest that in court, but there is a heavy presumption in favor of the state, the Supreme Court said.

"In view of the vital importance of protecting freshwater wetlands in New Jersey, privacy expectations . . . are diminished," the court said. "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."

A lawyer for the couple did not return calls for comment. A spokesman for the state DEP said the decision would further the work of the agency.

"We agree with the ruling and believe the court made right decision," said Larry Ragonese, a DEP spokesman.

The decision came in the case of a couple who contested a finding by DEP inspectors that they had illegally filled in and otherwise altered nearly an acre of freshwater wetlands and buffer area adjoining their home in Clinton Township, Hunterdon County.

A neighbor reported the activities of the couple, Robert and Michelle Huber, to the DEP in 2002.

The DEP said it had obtained the couple's permission to inspect the land, where it took soil samples.

A short time later, the DEP informed the Hubers that the fill and other activities on the property had violated the freshwater wetlands act.

For a short time, the two sides reached a settlement: The couple agreed to restore portions of the disturbed land, while the DEP, for its part, said it would allow the couple to keep an improperly sited deck, patio, and retaining wall and other changes on the property.

When the couple failed to remediate the property, however, the DEP ordered the couple to make the changes.

The couple appealed, saying that the DEP had no right to order them to restore land that had been disturbed by previous owners.

For the first time, they also argued that they had not given permission to the DEP, accusing it of conducting a warrantless search, a violation of Fourth Amendment rights to protection from unreasonable searches and seizures.

The case at one point drew the attention of the U.S. Supreme Court. The nation's highest court rejected a request by the Hubers to consider the case.

But in doing so, Justice Samuel A. Alito Jr. said earlier rulings by the U.S. Supreme Court permitting warrantless searches of commercial properties by government regulators likely would not apply in cases of homeowners like the Hubers. Homeowners are afforded a much higher level of protection by the Constitution, Alito said.

It was against the backdrop that the state Supreme Court found Thursday that while DEP regulators have the right to inspect property for freshwater wetlands violations, they also must submit to an administrative appeal procedure if the homeowner objects.

While the Hubers claimed that they had denied DEP officials permission to inspect their property, the state Supreme Court said it could not offer a judgment on the issue since it hadn't been thoroughly evaluated in earlier appeals proceedings.

In any case, there was little doubt based on evidence submitted by the DEP that multiple violations of the Freshwater Wetlands Act had occurred on the Hubers' property, the Supreme Court said.

Contact Chris Mondics

at 609-989-9016 or cmondics@phillynews.com.

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