Relying on the United States Constitution’s Fourth Amendment protection against unreasonable search and seizure, yesterday the New Jersey Supreme Court , inNJDEP v. Huber, ___ N.J. ____ (Apr. 4, 2013), held that the New Jersey Department of Environmental Protection (“NJDEP”) does not have an unfettered right to inspect residential property in order to ensure compliance or determine violations of the Freshwater Wetlands Protection Act, even when the property in question is subject to an FWPA permit.

This long-running case involved residential property owned by the Hubers which was subject to a Freshwater Wetlands General Permit precluding certain activities on portions of the property. After a neighbor complained that the Hubers appeared to be mowing vegetation and conducting fill activity in the restricted area, an NJDEP supervisor went to the property to inspect. Eventually, an administrative order was issued assessing the Hubers a monetary penalty and directing them to restore the property. On appeal, the Hubers claimed that they did not consent to the inspection and therefore the testimony of the inspector should have been excluded.

Although affirming the lower court’s decision upholding the administrative order based upon evidence other than the testimony of the inspector, the NJ Supreme Court agreed with the Hubers as to the constitutional issue. Although recognizing that the FWPA contained broad language that compelled property owners to allow the NJDEP to enter onto a permittee’s property at reasonable times, the Court held that the FWPA “does not purport to authorize forcible, nonconsensual entry in to the backyard of a residential property owner.” Rather, the inspection scheme contained within the FWPA struck an appropriate balance between the significant state interest in preserving wetlands and the privacy rights of homeowners who have a greater privacy expectation than commercial property owners operating in a closely regulated industry. In summary, the Court held that:

Based on the FWPA’s integrated scheme governing freshwater wetlands in New Jersey, land subject to FWPA restrictions so important as to be required by law to be filed of record, which was done here, is subject to the statutory, reasonable right of interest and inspection. In exercising that right, the [NJDEP] must comply with its processed, which require presentation of credentials before seeking consent to entry at reasonable times. If entry is denied, the Commissioner may order that entry be provided, . . . and the [NJDEP] shall be entitled, pursuant to the rules of court, to judicial process to compel access to the property subject to the FWPA permit.

(Citations omitted).

The Court left open, however, several questions that no doubt will be addressed by future courts. For example, the Huber’s property was also subject to a conservation easement but the Court declined to address whether nonconsensual entry was permissible pursuant to the easement because the easement was unknown to the NJDEP inspector at the time of his visit. In addition, the Court did not decide “what showing is required under the FWPA for the [NJDEP] to gain entry to residential proper that is not subject to a FWPA permit.” (Emphasis added).

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