On appeal from a Final Agency Decision of the New Jersey Department of Environmental Protection, Docket No. PEA020002-1006-01-1001.1.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves, J. N. Harris and Newman.
Appellants, Robert and Michelle Huber (the Hubers), appeal from a final agency decision by the Commissioner of the Department of Environmental Protection (Commissioner), which adopted an initial decision by Administrative Law Judge (ALJ) Jeff S. Masin, ordering the Hubers to pay a civil administrative penalty assessed by petitioner Department of Environmental Protection (DEP) in the amount of $4,500 and to submit "a proposal for the full restoration of the freshwater wetlands and transition area within the conservation easement to their pre-disturbance condition . . . prepared in accordance with N.J.A.C. 7:7A-15.1." We affirm.
On May 28, 1991, the DEP issued a Letter of Interpretation (LOI) to Arthur R. Ronquist, of developer Sidewood, Inc. (Sidewood), regarding "Block 90, Lot 19," which included the property in question, in Clinton Township. In the LOI, the DEP stated that the wetlands and water boundary lines delineated on a plan map entitled "LOCATION RESULTS OF FIELD INVESTIGATION FOR ARTHUR RONQUIST, BLOCK 90, LOT 19 CLINTON TOWNSHIP, HUNTERDON CO., NJ," were accurate. The LOI instructed, "[y]ou are entitled to rely upon this boundary determination for a period of five years from the date of this letter pursuant to the Freshwater Wetlands Protection Act (FWPA) Rules, N.J.A.C. 7:7A" and that for any future development plans, the boundary lines should be labeled: "Freshwater Wetlands/Waters Boundary Lines as verified by NJDEP on May 10, 1991, file #1006-91-0006.1-FWLI." The LOI also stated that the DEP "determined that the wetlands on the subject property are of Intermediate resource value, and the standard transition area or buffer required adjacent to these wetlands is 50 feet." The wetlands and transition areas were depicted on a 1992 Stream Encroachment Study Map and a 1992 Wetlands Delineation Map.
On October 7, 1992, the DEP issued several waivers, including a Freshwater Wetlands Statewide General Permit and a Transition Area Waiver - Averaging Plan (hereinafter collectively called the "Wetlands Permit"), to Sidewood for Block 90, Lot 17, which contained defendants' subject property, Block 90, Lot 17.11. In the Wetlands Permit, the DEP explained that instead of imposing the required transition area adjacent to wetlands of fifty feet, the DEP would permit "encroachment only in that portion of the transition area that has been determined by the [DEP] to be necessary to accomplish the authorized activities." "Any additional prohibited activities conducted within the standard transition area on-site [would] require a separate transition area waiver" from the DEP, according to the Wetlands Permit. The Wetlands Permit required Sidewood to sign a "Department approved deed restriction . . . which shall be included on the deed and recorded in the office of the County Clerk . . . ." The Wetlands Permit mandated that the "restriction shall state that no regulated activities shall occur in the modified transition area or adjacent wetlands without the prior approval" of the DEP. The Wetlands Permit also stated that the restriction "shall run with the land and be binding upon all successive owners."
The Wetlands Permit led to Sidewood portioning land into a deed restriction/conservation easement. The easement was comprised of the land beginning approximately eighteen feet off the southern back corner from the house now occupied by the Hubers and approximately thirteen feet off the northern back corner of the house.
The conservation easement was delineated on a map entitled, "Septic As-Built," dated July 1, 1994. This map shows that a patio/deck encroached, in part, on the conservation easement.
On August 8, 1994, Sidewood transferred ownership of and title to Block 90, Lot 17.11, to Richard and Jeannie Schmidt. The deed was recorded on August 16, 1994, at the County Clerk's office, in Book 1112, pages 0662 to 0664. Recorded with the deed was a sheet of paper entitled "METES AND BOUNDS." Among the provisions listed on this paper was the following provision:
"Subject to NJDEPE*fn1 Freshwater Wetlands Permit No. 1006-91-0017.5TW, which is dedicated to Clinton Township by conservation easement described as follows," and it recited the metes and bounds of the conservation easement.
On July 28, 1997, the Schmidts transferred the property to James and Elaine Reid, and the deed was recorded on September 17, 1997. This deed did not refer to the conservation easement.
On January, 4, 1999, the property was acquired by the Hubers, and the deed was recorded on February 23, 1999. A title insurance report, effective December 28, 1998, issued to the Hubers, indicated that the property was "[s]ubject to . . . conservation easement . . . and wetlands delineation line as shown on Map No. 1145." The report also stated that the property was also subject to "Freshwater Wetlands Permit in Deed Book 1112 Page 659 and Deed Book 1112 Page 662."
The Hubers claimed that when they bought the property, a mowed lawn existed in the backyard, within the conservation easement.
After purchasing the property in 1999, the Hubers admittedly placed soil or sod to remedy a steep slope behind their driveway/garage.
The DEP became aware of the conditions on the Hubers' property after a neighbor made a complaint about their lawn and the placement of fill within wetlands. After the complaint was made, the Hubers met with a DEP representative and learned about the presence of the conservation easement.
On July 3, 2002, Michael Nystrom, a DEP Supervisor in the Northern Regional office of the Bureau of Coastal and Land Use Compliance and Enforcement (BLUCE), inspected the Hubers' property.
Nystrom observed that native vegetation had been removed from, and fill in the form of soil and sod had been placed in, the freshwater wetlands and the adjacent transition area on the site. Nystrom performed three soil borings, which he said were within the boundaries of the wetlands. At each soil boring location, Nystrom claimed that he performed the "three-parameter approach," which entails identifying wetlands by "evaluating (1) whether the soil is hydric, (2) its hydrology, and (3) the surrounding vegetation." Nystrom said that the three-parameter approach revealed "hydric soil, hydrology consistent with wetlands and a dominance of hydrophytic (water-loving) vegetation." Regarding the first criteria of the approach, Nystrom found that the soil "demonstrated the chroma and redoximorphic features (mottles) necessary to satisfy the low chroma requirement of a hydric soil." Pertaining to the second criteria, Nystrom said his visual observations "confirm[ed] that the Hubers' property surrounding the removed vegetation and fill material had hydrology consistent with wetlands." Nystrom specified that "each sample area demonstrated at least one primary or two secondary hydrology indicators as required by the 'evidence of hydrology' criterion." For the third criteria, Nystrom found that the sampled areas were dominated by facultative, facultative wet, and/or obligate plants "suitable for life in wet conditions." Nystrom filled out information in a Wetlands Determination Data sheet based on the soil borings and the three-parameter approach.
On August 15, 2002, a site meeting was held. At the meeting, Armand Perez, a Principal Environmental Specialist with the DEP, observed a "stabilized area at the toe of [a] slope . . . that it appeared as though some stabilization measures took place, seed and straw," which "indicat[ed] a previously exposed area, exposed soil." The DEP estimated approximately 2500 square feet of fill was placed at "the toe of the slope below the Hubers' driveway." At the meeting, the DEP determined the Hubers' deck, patio, and retaining wall, all constructed prior to the Hubers' acquisition of the property, were partially constructed within the area of the conservation easement. This encumbrance is depicted in the Septic As-Built Plan. The DEP also claimed that it then confirmed that the fill material and the Hubers' mowed manicured lawn extended into the easement, the regulated wetlands, and the regulated transition areas.
On September 5, 2002, the DEP issued a Notice of Violation (NOV) to the Hubers for the removal of native vegetation from, and the placement of fill in the form of soil and sod in, the freshwater wetlands and transition area. In the NOV, the DEP instructed the Hubers to submit a proposal, within thirty days, with plans to restore the freshwater wetlands and transition areas to their pre-disturbance conditions.
Correspondence ensued between representatives of the Hubers and the DEP to restore the property, however this issue was never resolved.
On October 2, 2003, the DEP issued an Administrative Order and Notice of Civil Administrative Penalty Assessment (AONOCAPA) to the Hubers. The AONOCAPA stated that the Hubers' deck, patio, and retaining wall occupied some of the conservation easement's land and that the Hubers had placed fill and maintained and mowed a manicured lawn on land that was designated as regulated freshwater wetlands and within the conservation easement. The DEP assessed the Hubers with a $4,500 fine and ordered them to submit a proposal for restoration of the property to its pre-disturbance condition. The Hubers appealed and requested an administrative hearing. As a contested case, the matter was referred to the Office of Administrative Law.
On March 31, 2006, the DEP submitted a motion for summary decision. On July 18, 2006, the Hubers submitted a cross-motion for summary decision.
ALJ Masin heard argument regarding these motions on February 16, 2007. In an interlocutory order dated March 9, 2007, the ALJ denied both motions but found that the conservation easement was properly recorded, binding on the Hubers, and enforceable by the DEP. However, because the ALJ found that the record was insufficient for a "definitive determination of whether the Hubers' admitted filling-in . . . actually involved the placement of fill within the restricted areas," the ALJ determined a plenary hearing must be held.
At the hearing, the DEP claimed that the Hubers' violations entailed placing fill behind their driveway, mowing the lawn, maintaining the deck, patio, and retaining wall on some land that is part of the conservation easement, and placing fill on lands designated as freshwater wetlands and as a transition area. Regarding the lawn, the DEP asserted that the lawn extended approximately 150 feet beyond the conservation easement boundary and into the wetlands.
The DEP presented an aerial photograph, taken in 1991, of the property at the hearing. Perez testified that the photograph did not indicate a lawn existed on the property at the time, but rather, it showed there was "poor pasture land." Perez testified that another photograph, taken before 1991, showed that there was no lawn on what became the Hubers' property. Perez also explained how mowing alters the existing pattern of vegetation.
Perez testified, "I believe the conservation easement was deeded to Clinton Township," "I believe they would have zoning jurisdiction over the conservation easement," and "DEP would have wetland and transition area jurisdiction over the conservation easement."
Nystrom also testified at the hearing for the DEP. He confirmed the existence of wetlands on the property. He explained how he conducted the three-parameter approach on the Hubers' property. He also said that he observed evidence of a mowed lawn on the transition area and wetlands.
Nystrom said that before he arrived at the Hubers' residence, he was not sure if the Hubers would be hostile towards him, but he recalled being relieved because the Hubers were "very nice" and "polite." Nystrom testified that he was given permission to enter the Hubers' property before inspecting it. Mr. Huber denied that he consented and claimed that he was away on vacation that day.
Mr. Huber testified that he stopped mowing some of the property in 2003.
Following the hearing, the ALJ issued an initial decision on April 30, 2008. The ALJ found by a preponderance of the credible evidence that the Hubers placed fill "in at least one restricted area in the backyard area." The ALJ found that it was clear that the Hubers were mowing and maintaining a manicured lawn which was in the "restricted conservation and wetland areas."
The Commissioner issued a final decision on June 23, 2008. In the final decision, the Commissioner found the ALJ's factual findings and conclusions of law to be proper and well supported by the record. The Commissioner adopted the initial decision and ordered the Hubers to comply with the terms of the AONOCAPA. The Commissioner ordered the Hubers to submit "a proposal for the full restoration of the freshwater wetlands and transition area within the conservation easement to their pre-disturbance condition . . . prepared in accordance with N.J.A.C. 7:7A-15.1." The Commissioner stated that the Hubers may include with their proposal, facts and information substantiating the Hubers' claim that "removal of the retaining wall and deck will create a hazardous condition and impose an unreasonable economic burden on them." The Commissioner instructed:
[i]n order for the Department to consider approving the retention of these structures, [the Hubers] must present a robust restoration plan for all of the other unauthorized activities that took place within the freshwater wetlands transition area (including removal of vegetation and placement of fill in the form of soil and sod) and within the area extending into the deed restricted conservation area and regulated wetlands (including the mowing and maintenance of manicured lawn).
The Commissioner, lastly, ordered the Hubers to fully restore, without exception, these areas to their "pre-disturbance condition."
This appeal followed. The Commissioner denied a stay of the final decision on August 22, 2008.
On appeal, the Hubers raise the following arguments for our consideration:
I. THE DEP DID NOT PROVE AN ENFORCEABLE CONSERVATION EASEMENT AGAINST MOWING AND PASSIVE ENJOYMENT OF THE PROPERTY AS IT ...