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New Jersey Department of Environmental Protection v. Huber

A-5874-07T3 (N.J. Super. App. Div. 2010) (Unpublished)

ENVIRONMENTAL REGULATIONS; CONSERVATION EASEMENTS — Where a title search would reveal the existence of a wetlands permit by its number and the permit would reveal the presence of a conservation easement on the property, a buyer of the property is charged with constructive notice of the conservation easement even though the recorded document does not specify the terms of that conservation easement.

A wetlands permit issued by the New Jersey Department of Environmental Protection (DEP) required a “Department approved deed restriction” to be included in every deed conveyed by a developer within a certain development. The permit’s restriction mandated that no regulated activities could occur in the regulated area without the DEP’s approval. The permit also called for the restriction to “run with the land and be binding upon all successive owners.” The developer created a conservation easement within the development and dedicated it to the municipality. A metes and bounds description of the conservation easement was described in the deed. When a later property owner purchased the property, however, its deed did not include the required restrictions and only indicated that the property was subject to the conservation easement and wetlands permit.

The permit was identified by number. The new owner claimed that when it bought the property, a mowed lawn, deck, patio, and retaining wall were already in place. It admitted to placing soil on a portion of the property to remedy a steep slope. After the DEP became aware of the conditions on the property, it discovered that the deck, patio, and retaining wall were partially constructed within the conservation easement area. The DEP claimed that the fill material and the mowed lawn extended into both the easement and the regulated wetlands. It issued a notice of violation and ordered the owner to remove the soil and restore the affected areas. When the issue remained unresolved, the DEP issued a notice of civil administrative penalty, fining the owner, and ordering it to submit a property restoration proposal. The owner appealed.

The lower court found the conservation easement had been properly recorded, was binding on the new owner, and was enforceable by the DEP. It also held that the owner had placed fill in at least one restricted area, and had been mowing and maintaining a lawn within the restricted conservation and wetland areas. These findings were submitted to the DEP’s Commissioner for approval.

The DEP’s Commissioner adopted the lower court’s findings and ordered the owner to comply with the terms of the notice of civil administrative penalty and to submit a wetlands restoration proposal. The owner appealed.

The Appellate Division affirmed, holding that a chain of title search conducted by the owner identified the existence of the wetlands permit by its number and revealed the conservation easement that had been created on the property. Although the Court acknowledged that the deed conveying the property to the owner did not specify that regulated activities were barred within certain areas of the owner’s property without the DEP’s prior approval, it agreed with the lower court that the owner was specifically alerted that there was a conservation easement (which was described in the predecessor in title’s deed by its metes and bounds), and a wetlands permit (which was identified by number in the deed), each affecting the property. Thus, the Court concluded that the owner could readily have determined to what extent its property’s use was restricted by the conservation easement and the permit. Accordingly, the owner was charged with constructive notice of the deed restriction because a reasonable inquiry would have uncovered the restriction. It rejected the owners’ contention that the DEP could not enforce the conservation easement because the easement had been dedicated to the municipality. Because enforcement fell within the DEP’s incidental powers, the Court held that the DEP could enforce the easement despite it having been dedicated to the municipality. It also rejected the argument that the owner was not at fault because it did not cause the problem. Violations cannot be legalized simply by selling the property to another, and then exempting subsequent property owners who buy with knowledge of the violations. According to the Court, although the statute’s definition of “person” did not include “successors in interest” or “subsequent property owners,” it was within the implied powers of the DEP to enforce the statute’s violation against the current owners. Finally, it rejected the owner’s argument that equity barred enforcement because, according to the Court: (a) the DEP never made a knowing and intentional misrepresentation that it would not enforce the statute; and (b) the property owner was not misled to its harm by the DEP’s delay in enforcing the violation. Therefore, the Court was satisfied that none of the equitable remedies were available to the property owner.

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