Here is an article I wrote a couple weeks ago that I thought might be interesting to the Tri-State group members.
Developers Take Note – Land Located Within Wetlands And Subject To The Freshwater Wetlands Protection Act Can Be Searched Without A Warrant (by Anthony L. Velasquez, Esq.)
The NJ Supreme Court recently issued a landmark ruling that permits warrantless searches of residential and commercial property subject to the Freshwater Wetlands Protection Act (hereafter “FWPA”), N.J.S.A. 13:9B-1 et seq. This paves the way for unannounced administrative inspections of private land subject to the FWPA, and if violations are found it can result in administrative and civil penalties and fines, including mandatory requirements to restore wetland conditions often at astronomical costs.
In the lawsuit NJ Department of Environmental Protection v. Huber, decided April 4, 2013, the question was raised whether an owner’s Fourth Amendment rights to be free from unlawful searches and seizures is violated when DEP inspectors enter an owner’s property without permission for the purpose of inspecting the land to ensure conformity and compliance with the FWPA. Under the FWPA, owners must obtain a permit before taking certain action on their land such as removing soil, disturbing the water level, adding fill or altering plant life. The DEP inspectors entered the Huber property and concluded that Huber had placed 2,500 square feet of fill within the wetlands and had cultivated a lawn. They also found that Huber had constructed a deck, patio and retaining wall that encroached on a wetlands easement. Huber was ordered to pay a substantial penalty and restore the property to its prior condition.
On appeal, Huber argued that the evidence of violations should have been excluded from trial since it was obtained without a warrant. The DEP defended its warrantless inspection by relying upon a prior case where a warrantless inspection was declared legal – U.S. v. Burger, 482 U.S. 691 (1987). In Burger, the landowner operated a junkyard and inspectors entered his property without a warrant to confirm compliance with junkyard operations. During the inspection, stolen vehicles and stolen automobile parts were discovered. The owner was charged with possession of stolen property, and at trial he attempted to suppress the evidence as obtained without a warrant in violation of his Fourth Amendment rights to be free from unlawful searches and seizures. The U.S. Supreme Court disagreed with the land owner, and found that the search was legal since the owner’s privacy interests were weak as compared to the government’s strong interest in regulating junkyards – a “closely regulated business” necessary for the health and safety of the public.
The DEP inspectors said that the inspection of the Huber’s property was similar to the Burger inspection since it was done in furtherance of an existing law (FWPA) that was implemented for the well-being of the public and for the protection of wildlife – a strong public interest. Huber argued that the situations were different: inspecting a highly regulated commercial business such as a junkyard or waste facility is vastly different than inspecting a private, residential home. But the NJ Supreme Court ruled that the inspection was legal and valid, since it was in furtherance of the FWPA - a strong public interest - and the land was subject to the wetlands legal protections. It found that a reasonable administrative inspection scheme will comply with the Fourth Amendment even without the consent of the land owners, if the regulatory scheme advances important government interests, takes into account reasonable expectations of privacy and avoids nonconsensual forced entry outside of the bounds of the regulatory framework.
This ruling sets the stage for the DEP and other administrative enforcement agencies to inspect countless private, residential properties and commercial properties located within and subject to the FWPA and other similar environmental and regulatory laws throughout New Jersey. As long as the inspection is in furtherance of an important government interest and is tailored to fall within the regulatory framework, the warrantless inspection will be found valid and legal.
Does your property fall within a wetlands zone? You can find out by using the NJ DEP web site, specifically the Geographic Information Systems page within that site, although it is difficult to navigate. You can also check the wetlands maps by using other web sites that provide GIS such as PropertyPilot through the layering function (easier to navigate). Doing so, you can discover whether or not your property might lie within a wetlands area. This might indicate whether your property may be subject to the protections of the FWPA -- and warrantless inspections to ensure conformity with that law. While this discovery alone may not conclude the legal inquiry as to whether or not your land might be subject to warrantless searches, it is a great starting point.
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