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New Jersey Department of Environmental Protection, Coastal and Land v. Asdal Builders

June 25, 2012

NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, COASTAL AND LAND USE COMPLIANCE AND ENFORCEMENT, PETITIONER-RESPONDENT,
v.
ASDAL BUILDERS, LLC, AND WILLIAM C. ASDAL, INDIVIDUALLY, RESPONDENTS-APPELLANTS.



On appeal from the New Jersey Department of Environmental Protection, Agency Docket No. PEA070002-1427-02-0004.1.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 2, 2012

Before Judges Lihotz and Waugh.

Asdal Builders, LLC, and William C. Asdal (collectively Asdal) appeal from the final administrative decision of the New Jersey Department of Environmental Protection (DEP) imposing a $45,000 penalty for failing to satisfy a condition of the wetland area waiver (waiver) that DEP issued to Asdal with respect to a property located in Mount Olive Township. We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

In January 2002, Asdal entered into a contract to sell a sixteen-acre tract of land located in Mount Olive to John and Linda Walsh. Asdal was also to build the Walshes' new home. The parties subsequently amended the contract to require Asdal to obtain a waiver from DEP so that the Walshes' home could be built on a specific location on the property.

In March, Asdal applied to DEP's Division of Land Use Regulation for the waiver, a letter of interpretation (LOI), and a Freshwater Wetland Statewide General Permit Number 11 (permit). In the application, he designated David Kruger as his agent for the application. Asdal conveyed the property to the Walshes in May.

DEP issued the waiver, LOI, and permit in June 2003.*fn1 The LOI described the location and extent of the portions of the property containing wetlands and transition areas, and concluded that the wetlands had exceptional resource value. It called for a "transition area or buffer required adjacent to the[] wetlands [of] 150 feet."

The waiver contained several conditions. Condition four provided:

The applicant shall sign a Department approved conservation restriction for the modified transition area on the subject parcel in accordance with N.J.A.C. 7:7A-6.1(h). The conservation restriction shall address the entire modified transition area, including both the remaining reduced area and the compensation area. The restriction shall be included on the deed, and recorded in the office of the County Clerk (the REGISTRAR OF DEEDS AND MORTGAGES), in the county wherein the lands included in the waiver are located. The restriction shall run with the land and be binding upon all successive owners. All individual lot surveys shall show the approved wetlands and transition area boundaries. Any regulated activities undertaken on the site before a copy of the recorded restriction is submitted to the Department will be considered in violation of the Freshwater Wetlands Protection Act. The conservation restriction should conform to the format and content of the attached model Declaration of Restriction for Modified Transition Area.

Please submit a copy of the draft restriction . . . for review prior to filing. Send a copy of the recorded conservation ...


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