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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. ...