August 5, 2008
STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, PLAINTIFF-RESPONDENT,
THOMAS SEEGERS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, L-3819-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 9, 2008
Before Judges Payne and Messano.
Defendant Thomas Seegers appeals from an order, entered following a bench trial, determining that he had violated provisions of the Coastal Wetlands Act of 1970, N.J.S.A. 13:9A-1 to -10, by filling protected land without a permit, fining him $750 and requiring that he return the property to its previous state. On appeal, defendant presents the following arguments:
THE STATE FAILED TO PROVE NOTICE COMPLIANCE OF [N.J.S.A.] 13:9A-1 TO 13:9A-10 WHICH WAS A JURISDICTIONAL PREREQUISITE TO AN ENFORCEMENT ACTION.
THE TRIAL COURT ERRED IN FAILING TO APPLY THE HOLDINGS IN VELSICOL CHEMICAL CORPORATION v. DEPARTMENT OF ENVIRONMENTAL PROTECTION TO THIS CASE.
THE APPELLANT CONTENDS THAT THE GRANT DEED FROM THE STATE ESTABLISHED, EXCEPT FOR 523 SQ. FT. OF FORM[ERLY] TIDAL STREAM, THE APPELLANT'S PROPERTY WAS UPLANDS AND NOT SUBJECT TO COASTAL WETLANDS REGULATIONS.
THE COURT WRONGFULLY REFERENCED PHOTOGRAPHS THAT THE STATE CHOSE NOT TO ADMIT INTO EVIDENCE.
On March 28, 2000, defendant purchased for the sum of $38,000 a Bay Avenue property, designated as Block 1, Lot 20, on the tax map for the Township of Eagleswood in Ocean County, and depicted on New Jersey Coastal Wetlands Map No. 287-2106, filed with the County in 1972. The property in question adjoins the Forsythe National Wildlife Refuge. Defendant has certified that, before purchasing the property, he had the property surveyed, received an elevation certificate, and performed a title search, none of which indicated that use of the property would be restricted by the Wetlands Act. In a supplemental submission filed with our approval, defendant has offered evidence, consisting of a page from a document entitled "Index to Wet Lands Restrictions Judgments" which lists a judgment, filed on August 24, 1972, against "Victor Agnirre." The index refers to "Wetlands Book Two" and to wetlands map 287-2106. A separate document entitled "Property Owners of Record, State of New Jersey, Department of Environmental Protection, Westecunk Creek/West Creek, Map # 287-2106" lists "Victor Agnirre" as property owner of Bay Avenue, West Creek, N.J., Block 1 Lot 20. In fact, the property owner at the time was Victor Aguirre. An "n" was substituted for "u" on the pages supplied by defendant.
Aerial photography of the area in 1971 provided the basis for the delineation of wetlands boundaries. At that time, a small portion of the property had been filled. However, additional photographs indicated that development on defendant's property had not further encroached on wetlands until photographs taken in 2002, at which time the existing small, irregular hump was transformed into a square of dry land that appeared as a chunk removed from the boundary of the wildlife refuge. Evidence suggests that approximately 5,281 square feet of coastal wetlands were disturbed. Defendant admits that he built a retaining wall on his property and deposited approximately 1,600 tons of fill to a depth of eighteen inches, delivered in the period from April 2001 to September 2005. He does not dispute that he never sought a permit to perform the work.
The Department of Environmental Protection (DEP) issued a notice of Wetlands Act violation on July 18, 2003 that eventually reached defendant at an alternate address on January 30, 2004, prior to deliveries of the final 172 tons of fill in May, August and September 2005. Defendant failed to restore his property, as required by the DEP, and as a result, in December 2004, the DEP filed a summary action alleging that defendant filled coastal wetlands without a permit, in violation of the Wetlands Act, and seeking restoration of the property and a statutory fine of $1,000.
The matter was tried on February 9 and 15, 2007, and on February 20, 2007, the judge ruled against defendant, requiring submission to the DEP of a restoration plan for the property within thirty days and fining him $750. The present appeal followed.
The Wetlands Act includes a notice requirement to ensure that the owners of any property to be regulated are afforded an adequate opportunity to be heard on the proposed regulation:
The commissioner shall, before adopting, amending, modifying or repealing any such order, hold a public hearing thereon in the county in which the coastal wetlands to be affected are located, giving notice thereof to each owner having a recorded interest in such wetlands by mail at least 21 days prior thereto addressed to his address as shown in the municipal tax office records and by publication thereof at least twice in each of the 3 weeks next preceding the date of such hearing in a newspaper of general circulation in the municipality or municipalities in which such coastal wetlands are located.
Upon the adoption of any such order or any order amending, modifying or repealing the same, the commissioner shall cause a copy thereof, together with a plan of the lands affected, including reference to the filed wetlands map or maps on which the same are shown and a list of the owners of record of such lands, to be recorded in the office of the County Clerk or Register of Deeds, where it shall be indexed and filed as a judgment, and shall mail a copy of such order and plan to each owner of record of such lands affected thereby. [N.J.S.A. 13:9A-3.]
At trial and in his brief on appeal, defendant argues that "the State must demonstrate that it complied with the notice provisions of N.J.S.A. 13:9A-3, which required the Commissioner to hold a public hearing and provide notice to each property owner with an interest in wetlands, prior to adopting or amending orders to regulate activities in wetlands" and that such proof "is a jurisdictional prerequisite to any enforcement action under the statute." In support of this position, defendant relies on the Attorney General's Formal Opinion No. 16-1975, which provided after a recitation of the notice provisions of the statute:
In the face of such scrupulous concern by the Legislature for the right of wetlands owners to notice of their opportunity to object to the contents of a wetlands Order at a public hearing in the county to be affected, it must be concluded that absent such notice a wetlands owner is not bound by the terms of an Order.
We agree with the trial judge that evidence of notice to Victor Aguirre was not required as a prerequisite to the present enforcement action. If, in fact, no notice had been provided to Aguirre, he might have had a defense to the DEP's enforcement action. See Loveladies Prop. Owners Ass'n v. Raab, 137 N.J. Super. 179 (App. Div. 1975). However, Aguirre long since terminated his ownership interest in the property. As the trial court recognized, there is no statutory requirement that the State demonstrate such notice in an enforcement action against a subsequent property owner, and the existence of such a requirement would severely undercut the DEP's enforcement powers. Further, defendant's supplemental proofs amply demonstrate the existence of the wetlands order that the statute requires, as well as its recordation as a judgment, along with a copy of the wetlands map to which it refers.
Moreover, in 1984, the requirements of wetlands orders were incorporated into the DEP's coastal permit program rules by N.J.A.C. 7:7-2.2. See 16 N.J.R. 1073(a). That regulation provides:
(a) Wetlands permits are required for all activities in coastal wetlands delineated and mapped pursuant to the Wetlands Act of 1970 including, but not limited to:
12. Filling, excavation or the construction of any structure.
(c) The Wetlands Order promulgated by the Commissioner of Environmental Protection in April 1972, any amendments thereto, and these rules shall be applicable only in those areas shown waterward of the upper wetland boundary on the following wetlands maps:
3. Ocean County
Thus, defendant was on public notice of the coastal wetlands maps filed with the Ocean County Clerk at the time that he purchased his property in 2000 and with the DEP's regulations requiring a property owner to obtain a wetlands permit prior to conducting any regulated activities in mapped wetlands areas. A stroll around the perimeter of defendant's property should have been sufficient to demonstrate the presence of wetlands and to alert defendant to the substantial likelihood of wetlands regulation. The fact that the name of the property owner at the time of the initial recordation of the wetlands map was slightly misspelled is irrelevant in this context.
At trial, the DEP offered the testimony of its investigator, Raymond Bukowski, as a fact witness to establish that defendant's property contained mapped wetlands. On appeal, defendant contends that expert testimony was required on this issue, relying in this regard on our opinion in Velsicol Chem. Corp. v. Dep't of Envtl. Prot., 182 N.J. Super. 575, 581 (App. Div. 1982). We disagree with defendant's position.
Although expert testimony is generally required "to explain complex matters that would fall beyond the ken of the ordinary juror," State v. Fortin, 189 N.J. 579, 596 (2006) (citing Buckelew v. Grossbard, 87 N.J. 512, 526-27 (1981) and other cases), establishing that a wetlands map, with unchallenged latitude and longitude coordinates and a clear delineation of wetlands,*fn1 designates as wetlands a portion of defendant's property, identified in its deed by precise metes and bounds, is not so complex a matter as to require such expert explication. Although it could be argued that a delineation of the scope of remediation requires such expertise, the existence of a gross violation does not.
At trial and on appeal, defendant also contends that the State had conveyed the property at issue to defendant's predecessors in title effectively free from any wetlands restriction by a deed that relinquished its tidelands claim. We again disagree.
By deed dated August 2, 1994, the State conveyed to Leonard W. Spinner III and Delores L. Spinner, defendant's predecessors, property to which it had previously asserted an ownership interest as flowed or formerly flowed by tidewater. The deed recited that it was the intent of the State "to convey all of its tidelands ownership interest in lands formerly flowed by the mean high tide lying within the above described tract of land known and unknown at this time." The deed further acknowledged "the existence of solid fill" within the "area of the lands granted [t]herein."
Defendant contended unsuccessfully at trial and maintains before us that the deed "clearly conveyed the entire tract of land and designated it as solid fill." Thus, according to defendant, there were no coastal wetlands to regulate on the property at the time of conveyance. Defendant further maintains that if the State had desired to restrict the use of the property through wetlands regulations, it could have specified that restriction in the deed.
Our review of the deed at issue demonstrates that the State merely relinquished "its tidelands ownership interest" in the property. It neither disclaimed any existing wetlands regulation, which regulation and supporting maps had been matters of public record since 1972, nor indicated that the entire parcel of property had been filled. Indeed, if such fill already existed, defendant's extensive efforts would have been unnecessary. The deed indicated only that an unspecified quantity of solid fill existed on an unspecified portion of the property. We note further that lands may retain a wetlands designation while not constituting tidelands. In re Loveladies Harbor, Inc., 176 N.J. Super. 69, 71 (App. Div. 1980) (noting that of the lands at issue, some were wetlands while others were tidelands), certif. denied, 85 N.J. 501 (1981).
We find defendant's argument that the judge improperly relied on evidence not in the record to have insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Although in his decision the judge made reference to photographs that were not in evidence, he expressly disavowed reliance upon them.