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State of New Jersey Dept. of Environmental Protection v. Roc Harbour Condominium Association

A-607-02T3 (N.J. Super. App. Div. 2004) (Unpublished)

ENVIRONMENTAL PROTECTION; TIDELANDS—The State cannot be estopped from enforcing laws against filling in tidal lands without a permit even if it persistently failed to enforce those laws in the past with respect to the same piece of land.

A condominium development was located next to a river, separated from it by a narrow strip of tidal land. Without obtaining any permits from the Department of Environmental Protection (DEP), and in direct violation of a deed restriction and pertinent federal laws and regulations, the condominium association directed a contractor to dump fill in the narrow strip of tidal land to prevent repeated flooding. In an enforcement proceeding, the DEP’s Commissioner adopted a summary decision of an Administrative Law Judge and imposed monetary per diem penalties on the association until the violation was corrected.

On appeal, the association claimed that numerous questions of law and fact precluded summary decision. It claimed issues were unresolved, such as whether the State owned the strip of tidal land, whether the DEP should have been estopped because of its failure to enforce its regulations against the original developer, and whether the State had been perpetuating a nuisance and acting in bad faith in negations with the association. The Appellate Division held these issues to be either meritless or irrelevant. It held that ownership of the tidal land was irrelevant because it was the act of filling that was illegal. To place earth, stones or other solid material in the tidewaters of a river had been a violation of law for over 100 years. Furthermore, even if the DEP had failed to enforce its regulations against the original real-estate developer, it did not mean that the association could obstruct the free flow of the river with impunity. Despite its past inaction, the DEP never condoned the illegal filling of riparian land. Finally, the Court saw no bad faith on the part of the DEP in prosecuting the enforcement of the action. The association knew that removal of the illegal fill would prevent accumulation of fines. So if there was any nuisance perpetuation, it had been caused by the association’s illegal dumping

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