August 30, 2013
NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, COASTAL AND LAND USE COMPLIANCE AND ENFORCEMENT Petitioner-Respondent,
ROBERT F. BELLO, Respondent-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 27, 2013
On appeal from the New Jersey Department of Environmental Protection.
Lawrence J. Fox, attorney for appellant.
John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis Scheindlin, Assistant Attorney General, of counsel; Katherine M. Hunt, Deputy Attorney General, on the brief).
Before Judges Harris and Fasciale.
Robert F. Bello appeals from an October 5, 2011 decision by the Commissioner of the Department of Environmental Protection (DEP) finding that he violated the Freshwater Protection Act (FWPA), N.J.S.A. 13:9B-1 to -30, by filling a freshwater wetlands transition area without authorization. The DEP ordered Bello to restore the area and imposed a penalty. We affirm.
In March 2000, Bello purchased property from an individual who had previously obtained municipal site plan approval and a DEP freshwater wetlands exemption for construction of a single family home (the property). In July 2000, Bello obtained approval for a revised site plan (the Bello Plan). On June 5, 2002, Bello obtained a certificate of occupancy (CO) for the construction of the house and driveway.
The Bello Plan identified a "future barn" to be located to the rear of the house in a non-transition area. The transition area in this case is labeled in the Bello Plan as a "Proposed Future Fenced Riding Area at Grade ([otherwise known as the] paddock area)." No fill or grading was shown on the Bello Plan for the paddock area. On September 3, 2002, Bello obtained a construction permit to build the barn. The permit expired because construction did not commence within one year. In December 2003, Bello's contractor placed up to five feet of soil in the paddock area without the DEP's authorization.
Pertinent to this appeal is the DEP's second amended administrative order and notice of civil administrative penalty assessment (AONOCAPA) charging Bello with "the unauthorized disturbance of vegetation and the placement and grading soil fill material within [a] . . . wetland transition area." The DEP ordered Bello to plant native trees and shrubs in that area and assessed a penalty. Thereafter, Bello requested a hearing before an Administrative Law Judge (ALJ).
The ALJ conducted a hearing on three nonconsecutive days between September 2010 and January 2011. On May 25, 2011, the ALJ issued an eleven-page initial decision. The ALJ concluded that Bello violated the FWPA as charged by the DEP in the second amended AONOCAPA, assessed a $6000 penalty against Bello, and ordered him to restore the affected area.
In October 2011, the Commissioner issued a comprehensive written decision adopting the ALJ's findings. The Commissioner stated that
[a]fter [Bello] received a CO, [he] decided to move the barn . . . to the paddock area. In order to do so, Bello placed fill and graded the paddock area to accommodate the barn structure. Bello eventually abandoned the plan to relocate the barn structure . . . . Even though he did not build a structure in the paddock area, the grading and placement of fill in a wetlands transition area were in contemplation of that plan and were regulated activities that required a transition area waiver because the exemption was no longer valid. N.J.A.C. 7:7A-2.6(a). . . . The grading and filling in the paddock area was . . . a violation of the FWPA and the [DEP's] regulations.
I also note that there is a separate basis upon which [to] uphold the [DEP's] action to issue the [s]econd [a]mended AONOCAPA which was not addressed in the [ALJ's d]ecision. Although Bello was authorized to proceed under his exemption to build the project approved by the township as represented in the Bello Plan, that exemption did not authorize Bello to increase or intensify the encroachment into transition areas beyond the limits of the Bello Plan. The proposed barn was not located in a transition area on the Bello Plan. Further, the Bello Plan did not contemplate the addition of fill in [a] paddock area, which was a transition area. Bello then decided to move the barn from the area depicted on the Bello Plan to the paddock area and, in preparation for construction, added and graded fill in the area. Thus, separate and apart from the fact that Bello did not timely complete his barn construction as required by N.J.A.C. 7:7A-2.8(g)4 [(imposing a one-year deadline regarding construction of an accessory structure)], the addition of fill and grading in the paddock area that was designated to be developed "at grade" was not authorized under the FWPA and the [DEP's] regulations.
The Commissioner concluded that Bello departed substantially from the Bello Plan, which did not contemplate any change to the grade or fill in the paddock area, and that Bello knew that the construction permit had expired. The Commissioner adopted the fine the ALJ imposed and ordered Bello to submit a restoration plan for the transition area. This appeal followed.
On appeal, Bello argues that the DEP failed to show a violation of N.J.A.C. 7:7A-2.6(a) (defining regulated activities in transition areas to include, among other things, "[r]emoval, excavation, or disturbance of the soil"). Bello contends, therefore, that the Commissioner's final decision is arbitrary, capricious, and unreasonable.
"In order to reverse an agency's judgment, an appellate court must find the agency's decision to be 'arbitrary, capricious, or unreasonable, or [ ] not supported by substantial credible evidence in the record as a whole.'" In re Stallworth, 208 N.J. 182, 194 (2011) (alteration in original) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980)). "The burden of demonstrating that the agency's action was arbitrary, capricious[, ] or unreasonable rests upon the person challenging the administrative action." Seigel v. N.J. Dep't of Envtl. Prot., 395 N.J.Super. 604, 613 (App. Div.), certif. denied, 193 N.J. 277 (2007). Our inquiry is restricted to
(1) whether the agency's decision offends the State or Federal Constitution; (2) whether the agency's action violates express or implied legislative policies; (3) whether the record contains substantial evidence to support the findings on which the agency based its action; and (4) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.
[George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994).]
We do "not substitute [our] own fact[-]finding for that of the agency, " because we "defer to the agency . . . if the findings of fact are supported by substantial credible evidence in the record and are not so wide off the mark as to be manifestly mistaken." Tlumac v. High Bridge Stone, 187 N.J. 567, 573 (2006).
With these principles in mind, we discern no basis to disturb the Commissioner's final decision. We have carefully reviewed the record and arguments on appeal and affirm substantially for the reasons the Commissioner expressed in his October 5, 2011 final decision. We add the following brief remarks.
Bello graded and filled the paddock area, in preparation for construction of the barn, after the property's construction permit had expired. In December 2003, a DEP representative observed Bello's contractor placing soil in the paddock area in piles estimated to be four to five feet high. This activity occurred even though the Bello Plan did not contemplate addition of fill in the paddock area. During the administrative hearing, Bello conceded that the construction permit was invalid, the exemption period had expired, and the paddock area contained fill. The following exchange occurred between Bello and the ALJ:
[Bello]: I decided not [to] put the barn on the paddock area. I decided not to make the move from [the Bello Plan] to the paddock area in December of 2003 [after the permit expired]. . . . The area is already disturbed. . . . I had a building permit. I was ready to construct that barn.
[ALJ]: In the paddock area?
[Bello]: Yes, it was an error with the town as to the validity of the permit because [there] was no grading plan associated with the building permit. . . . I was past [the] exemption period of putting a barn up. So at that point, I decided to abandon putting a structure up. I didn't put up the footings or anything. I just had it disturbed with the stumps and fill.
[ALJ]: And fill was stored there?
After a thorough review of the record and consideration of the controlling legal principles we conclude that Bello's remaining arguments are without sufficient merit to warrant extended discussion in a written opinion R 2:11-3(e)(1)(D)