May I Come In?: N.J. Supreme Court Approves Warrantless DEP Searches of Residential Property Subject to Freshwater Wetlands Permit
In a unanimous decision that was at once sweeping and limited, the New Jersey Supreme Court held that the Department of Environmental Protection (DEP) need not obtain a warrant before entering a residential parcel to ensure compliance with the terms of a wetlands permit. The Court stopped short of a blanket validation of all warrantless searches under the wetlands statute, or of all warrantless searches of residential property subject to any sort of permit, instead grounding its holding in the protections afforded by the process that DEP must follow, and limiting it to searches of properties that are subject to a wetlands permit.
The case concerned the property of Robert and Michelle Huber. The parcel was subject to a permit issued to the developer of the property in 1992 under the Freshwater Wetlands Protection Act (FWPA). A deed restriction referring to the permit was recorded when the developer sold the property in 1994. The property was sold once again, in 1997, before the Hubers acquired it in 1999. Their title report also referred to the permit.
In 2002, after complaints from a neighbor about the placement of fill and the mowing of vegetation in restricted portions of the Hubers’ land, DEP sent an inspector to the property. The parties disputed whether he received permission to enter the property, but he did in fact enter and collected evidence of violations. Subsequent inspections, aerial photographs, and the Hubers’ own admissions eventually established clear evidence of permit violations. DEP assessed a civil penalty and ordered the Hubers to submit a restoration plan. An administrative law judge, the DEP Commissioner, and the Appellate Division all upheld the DEP order.
Before the Appellate Division, the Hubers argued, for the first time, that the evidence from the first DEP inspection should have been excluded because the inspector lacked a warrant, as required by the federal and state constitutions. The Appellate Division rejected that argument, holding that the reasoning of the U.S. Supreme Court’s 1987 decision in New York v. Burger, which permitted warrantless administrative searches of commercial property in closely regulated industries, should be extended to residential properties like the Hubers’ parcel.
The New Jersey Supreme Court at first denied certification, but then the case took an unusual turn. After the denial of certification, the Hubers filed a petition for certiorari with the U.S. Supreme Court. The denial of the petition was accompanied by a statement from Justice Alito (joined by Chief Justice Roberts and Justices Scalia and Thomas) that questioned whether Burger could be applied to residential property. Seizing on this statement, the Hubers sought reconsideration, and the New Jersey Supreme Court granted certification.
Answering Justice Alito’s question, the Court first rejected the Appellate Division’s extension of Burger outside of the setting of a commercial property in a closely regulated industry. The Court contrasted the “heightened privacy interests that are associated with a private, residential property” with the lesser privacy interests in a commercial setting, especially one where highly regulated activity occurs.
|“The FWPA’s inspection scheme cannot fairly be viewed as unreasonable as applied to a residential homeowner whose property is subject to a FWPA permit because, by seeking its permission to disturb land on or near otherwise statutorily protected wetlands, a landowner and his or her successors in title are bound to compliance with the permit. That includes compliance with the permitting scheme’s mechanism that authorizes reasonable entry onto land affected by the permit to ensure that these valuable natural resources are maintained as required by the conditions of the permit.”|
The question, then, is not so much whether DEP can gain entry -- the statute virtually guarantees it -- but how DEP can gain access if the permit holder refuses. The Court concluded that the process established by the statute and regulations was sufficiently protective of the homeowner’s expectation of privacy. That expectation is reduced where, as in the Hubers’ case, the homeowner acquires the property subject to a recorded deed restriction that explicitly referred to a permit that, in turn, gave DEP the right to access. “Put simply,” the Court concluded, “the rights of the FWPA permittee are subject to the statutory scheme by which the permit operates, and that includes submitting to a reasonable inspection scheme.”
The Court was careful, however, to limit its holding to situations involving FWPA permits: “We do not mean to suggest that any permit issued by any governmental entity may now bear a condition foisting upon the homeowner a duty to accept a right of suspicionless entry by the government.” Nor does the holding apply to FWPA inspections of property that is not subject to a permit, as the Court made clear that “we need not decide what showing is required under the FWPA for the DEP to gain access to residential property that is not subject to a FWPA permit, and we leave for another day the application of such circumstances in the context of open fields or when entry is sought in other nonresidential settings.”
|“Here, the regulatory scheme anticipates thoughtful steps and provides constitutional recourse for the DEP to secure access to inspect land subject to a FWPA permit for compliance with the strict protections placed on freshwater wetlands and transition areas. Moreover, the permitting scheme ensures that an order issued to gain peaceful, nonforcible entry to inspect at a reasonable time when consensual entry is denied and access must be compelled.”|
Huber sends clear messages to both property owners (having a permit can make you subject to warrantless inspections) and regulators (you must build procedural safeguards into your inspection regime). The message of Huber, however, may be subject to future modification inasmuch as its holding is grounded in signals, rather than holdings, from the U.S. Supreme Court. In any event, its reasoning and its scope are likely to be tested in future cases involving other permitting programs.
* Photo courtesy of epa.gov.
Paul M. Hauge is an Associate in the Gibbons Real Property & Environmental Department.