On appeal from the Superior Court of New Jersey, Chancery Division, Somerset County.
Brody, Stern, and Keefe. The opinion of the court was delivered by Keefe, J.A.D.
[268 NJSuper Page 168] This matter was initiated on July 27, 1990 when DEPE employee Barbara Cowan conducted a field investigation of property in Bernards Township owned by defendant's wife, Layte S. Dopp, and discovered a small pond on the premises. The parcel fronts on a lake which is part of a tributary to Harrison's Brook. The wetlands associated with the property and lake are classified as being of exceptional value. Cowan observed that a tributary (presumably to Harrison's Brook) passed through the pond en route to the lake. While defendant advised Cowan that the lake
was already in existence when his wife purchased her home, Cowan's review of 1988 aerial photographs showed no pond in the tributary on the property. She therefore recommended that DEPE issue a notice of violation for construction of a pond without DEPE authorization. In this initial encounter -- and throughout the negotiations with DEPE in this matter -- defendant, rather than his wife, responded to DEPE inquiries.
On August 23, 1990, DEPE issued a NOV to defendant advising him that the "stream pond" required both a stream encroachment permit under the Flood Hazard Area Control Act and a permit under the Freshwater Wetlands Protection Act (FWPA). Defendant was offered one of two alternatives: he could submit the required permits and applications within 30 days, or propose a mitigation plan for restoring the site. With respect to the FWPA violation, defendant also had the opportunity to demonstrate that the activity was exempt from the FWPA.
Defendant responded by denying that he had constructed the pond and by insisting that Cowan, in her July inspection, had assured him that no work done on the property had adversely affected wetlands. He requested a meeting with DEPE officials, copies of the 1988 aerial photographs, and copies of the statutes referenced in DEPE's letters.
On October 4, 1990, DEPE advised defendant that a meeting would be unproductive in light of the several options offered to him. It also explained that the aerial photographs were not available for distribution, but that defendant could make an appointment to review them. It concluded with the admonition that failure to comply with the NOV by October 22, 1990 would result in further enforcement proceedings. The compliance date was subsequently extended to January 2, 1991 at defendant's request.
On April 15, 1991, defendant advised DEPE that he had retained an engineering firm and would satisfy DEPE's requirements by May 1. Defendant's engineering consultants eventually submitted the appropriate stream encroachment applications and
DEPE now considers the Flood Hazard Area Control Act violations to have been cured.
However, no progress was made on the FWPA violations and, on July 1, 1991, DEPE issued a Letter and Administrative Order and Notice of Civil Administrative Penalty Assessment. The order directed defendant to submit a mitigation proposal within 30 days and imposed a penalty of $85,500. Defendant was informed he had a right to request a hearing within 20 days and that, if no such request was made, the order would become a final order on the twenty-first day after its entry and the penalty would become due and payable.
Defendant did not request a hearing. However, defendant's representatives continued to deal with DEPE. A July 23, 1991 "memo to the file" by defendant's engineer, Mark Platz, memorialized a conversation with DEPE's Cowan. Platz reported that he had told Cowan that initial investigations indicated that "any disturbance" on the property had served to enhance the environment and could be the basis for an application supporting the completed work. The memo also noted that Cowan had been advised that there was no ongoing work on the project so that the "cease and desist" portion of the administrative order had been fully complied with.
Also on July 23, 1991, defendant's counsel wrote DEPE, advised it that he had been retained by defendant, and requested an opportunity to review defendant's file and the aerial photographs. He also requested a forty-five day stay of any further action by DEPE.
No DEPE response is included in the record, but a certification by defendant's counsel, submitted to the trial court, stated that he reviewed the aerial photographs on microfilm on May 21, 1992 at DEPE offices but was unable to distinguish the property. The attorney's certification continued that he had informed DEPE that he ...