Howard Davis P.C.


New Jersey Department of Environmental Protection v. Robert and Michelle Huber

April 4, 2013

Constitutional Limitations on Environmental Inspections of Residential Property: New Jersey Department of Environmental Protection v. Robert and Michelle Huber, Docket No. 065540 (A-116-10)

The New Jersey Supreme Court confirmed that the Fourth Amendment and Article 1 Paragraph 7 of the New Jersey State Constitution provide legal privacy to people in their homes, even if they live on property that is subject to a permit issued under the Freshwater Wetlands Protection Act “FWPA”).  FWPA permits allow regulated activities in areas that otherwise are protected as wetlands.  The Department of Environmental Protections has the authority and responsibility to inspect for violations of FWPA permits.

The Appellate Division had decided that the presence of wetlands in a residential backyard made that property subject to inspection just like a highly regulated commercial business under an exception to the Fourth Amendment of the U.S. Constitution recognized in New York v. Burger, 482 U.S. 691 (1987).  The New Jersey Supreme Court at first declined to review that decision, but after the Law Office of Howard Davis, P.C. filed a petition for certiorari with the Supreme Court of the United States, four Justices noted the irregularity of the Appellate Division’s decision, even as the Court denied certiorari review in light of the unpublished nature of the decision from an intermediate appellate court.  The United States Supreme Court almost never reviews such decisions.  However, the federal Supreme Court has always zealously guarded the right to privacy at home, and federal constitutional law has included residential backyards within the zone protected by the Fourth Amendment.

The decision below threatened to allow nonconsensual, warrantless government inspections of private residential property without notice to the homeowners.  In fact, it was the New Jersey Department of Environmental Protection’s positions that inspections could be carried out without notice and whether or not the homeowner was present and consented. These types of inspections were clearly improper under federal cases.   The scope of this threat was vast, inasmuch as some regulations and legal restrictions apply to just about every piece of residential property

In light of the Statement written by Justice Alito, and extensive subsequent motion practice by the Law Office of Howard Davis, P.C. on behalf of the affected residents, the New Jersey Supreme Court finally agreed to review the Appellate Division’s decision. 

The New Jersey Supreme Court decision, issued in an opinion written by Justice LaVecchia in NJDEP v. Huber on April 4, 2013, squarely rejected the Appellate Division’s application of the “closely regulated business” exception to to inspections of private residential property subject to a FWPA permit.   The Court did note that residents of such property must anticipate that the DEP will perform some inspections, but it held that the FWPA and DEP regulations which provide for those inspections must be interpreted in accordance with constitutional limitations.  Specifically, the Court held that DEP cannot forcibly enter private property to inspect for violations of FWPA permits.  Rather, the DEP must either obtain consent from the property owner after the presentation of proper credentials, or if consent is denied, follow the statutorily proscribed processes to seek a right of entry under a court order. 

The question as to whether an unconstitutional search actually occurred in this case was not addressed by the Court under the rationale that sufficient credible evidence existed in the record to prove that a violation of the FWPA occurred, even excluding the evidence that DEP gathered during the warrantless search of the Hubers’ property.  Nonetheless, the Court made clear that under FWPA, “the inspection scheme taken as a whole does not purport to authorize forcible, nonconsensual entry into the backyard of a residential property.”

In reaching its decision, the Court held that the inspection framework of the FWPA, which requires either consent or a judicial order granting access for an inspection of specific property,  functioned consistently within the constitutional parameters of the Fourth Amendment to the United States. Constitution and Article 1, Paragraph 7 of the New Jersey Constitution.  The Court explained that pursuant to that framework, the DEP must, after presenting credentials to the property owner, seek consent to carry out inspections or investigations under the FWPA.  Inspections also must be carried out at reasonable times and in a reasonable.  If the owner refuses consent, the DEP Commissioner may issue an order for entry and that order can be enforced with judicial process. The DEP also may assess penalties against the holder of an FWPA permit who denies access to their property.  But the Court emphasized that the DEP has the burden of proof  to justify its conduct of inspections under the FWPA.

Thus, under the Court’s new ruling, DEP inspectors are not permitted unfettered access to inspect for violations of FWPA permits. This vindicates important homeowner rights.