NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION VS. WILLIAM WARRINGTON (DEPARTMENT OF ENVIRONMENTAL PROTECTION) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1173-16T1
NEW JERSEY DEPARTMENT OF
ENVIRONMENTAL PROTECTION,
COASTAL AND LAND USE
COMPLIANCE AND ENFORCEMENT,
Petitioner-Respondent,
v.
WILLIAM WARRINGTON,
Respondent-Appellant.
______________________________
Argued March 12, 2018 – Decided August 17, 2018
Before Judges Accurso, O'Connor and Vernoia.
On appeal from the New Jersey Department of
Environmental Protection.
Mitchell H. Kizner argued the cause for
appellant (Flaster Greenberg, PC, attorneys;
Mitchell H. Kizner and Scott C. Oberlander,
on the briefs).
Robert J. Kinney, Deputy Attorney General,
argued the cause for respondent (Gurbir S.
Grewal, Attorney General, attorney; Melissa H.
Raksa, Assistant Attorney General, of counsel;
Robert J. Kinney, on the brief).
PER CURIAM
Appellant William Warrington appeals from the New Jersey
Department of Environmental Protection's (NJDEP) final agency
decision finding he violated the Freshwater Wetlands Protection
Act (FWPA), N.J.S.A. 13:9B-1 to -30, and its regulations, N.J.A.C.
7:7A-1.1 to -22.20, and the Flood Hazard Area Control Act (FHACA),
N.J.S.A. 58:16A-50 to -101, and its regulations, N.J.A.C. 7:13-
1.1 and -24.11, by clearing trees and vegetation, filling and
grading, constructing a gravel road and installing a concrete pad
on wetlands, freshwater wetlands transition and flood hazard areas
on his Elk Township property. Because we are convinced the NJDEP's
findings and conclusions are supported by substantial credible
evidence, we affirm.
I.
The essential facts are not in dispute. Warrington owns an
over three-acre, rectangular-shaped residential property with its
eastern boundary comprised of approximately 100 feet of frontage
on Whig Lane Road. The northern boundary line extends
approximately 1180 feet west from the northern point of frontage
on Whig Lane Road. The southern boundary line is more than 1200
feet, and extends westerly from the southern point of frontage on
Whig Lane Road. The western boundary, located at the rear of the
property, is approximately 150 feet. As described by the DEP, the
2 A-1173-16T1
property "is narrow and deep, widening somewhat toward the western
boundary line."
The property is comprised of four distinct areas. The first
is the "residential area," which is closest to Whig Lane Road and
extends approximately 250 feet westerly from the road. This is
the area where Warrington's home is situated.
We refer to the second area as the "front property." It
extends westerly approximately 230 feet from the residential area
to a fifty-foot-wide riparian buffer through which a "tributary
of Still Run" dissects the property.1 The fifty-foot-wide buffer
which includes the tributary is the property's third area, which
we refer to as the "riparian buffer." The fourth area consists
of all of the property extending westerly from the riparian buffer
to the property's western boundary. We refer to the fourth area
as the "rear property."
Commencing in 2000, and over the ensuing years, Warrington
cleared vegetation from the front property and riparian buffer and
removed vegetation and trees from the rear property. Warrington
also filled and graded the front property and rear property.
Warrington replaced the wooden decking of an existing twelve-foot-
1
A tributary is a "river or stream flowing into a larger river
or stream." Webster's II New College Dictionary 1205 (3d ed.
2005).
3 A-1173-16T1
wide bridge over the tributary, and constructed an access road
which wound from Whig Lane Road, through the residential area,
front property, across the bridge and in a large circle on the
rear property. In 2008, Warrington built a thirty by forty-foot
concrete pad on the rear property in the middle of the circular
portion of the access road. He later constructed a pole barn on
the pad.
In 2008, NJDEP Inspector Olufunsho Sekoni conducted a site
inspection of the property, and took four soil borings from the
rear property. On May 13, 2008, he issued a Field Notice of
Violation (FNOV) to Warrington, charging Warrington engaged in
unauthorized regulated activities on the rear property and in the
riparian buffer by constructing the concrete pad, clearing
vegetation and disturbing approximately 14,000 square feet of
wetlands transition area, clearing and disturbing approximately
8000 square feet of wetlands, installing a bridge across the
tributary, filling and grading, and creating a road in freshwater
wetlands. The FNOV directed corrective or restoration actions
including "restor[ation] [of] the site to its predisturbed
condition or appl[ication] for permits from" the Division of Land
Use Regulation.
The next day, Warrington prepared a letter advising Sekoni
that his wife contacted the Division to obtain the necessary
4 A-1173-16T1
permits. Warrington advised it was his "intention to get all
permits rather than try to restore the land [to] its original
condition." Warrington retained Key Engineering, Inc. for the
purpose of obtaining the necessary permits.
On June 2, 2010, NJDEP Inspector Trent Todash inspected the
property. Prior to the inspection, he reviewed soil survey
overlays to determine the soils in the area, and reviewed NJDEP
files and historical aerial photographs of the property. During
his inspection, he focused on the residential area, the front
property and the riparian buffer.
Todash issued a notice of violation (NOV) on June 29, 2010,
alleging Warrington violated the FWPA by "clearing[ ]vegetation,
filling and grading to create an access road" and constructing the
concrete pad on wetlands and freshwater wetlands transition areas
in the front property and rear property. It further alleged
Warrington violated the FHACA by constructing a road, and filling
and grading within the riparian buffer. Warrington was directed
to submit a restoration plan or an explanation of planned
corrective measures.
On September 27, 2010, Robert Scott Smith from Key Engineering
submitted a revised September 21, 2010 "Wetlands Boundary Survey"
on Warrington's behalf to "demonstrate potential compliance with
the terms and conditions of a Freshwater Wetland General Permit
5 A-1173-16T1
10B, Freshwater Wetland Transition Area Waiver . . . ." The survey
showed the roadway, bridge and concrete pad, and included comments
acknowledging the placement of fill and clearing of vegetation,
and a "total disturbance of wetlands and [wetlands] transition
areas associated with [the concrete] pad and [circular] loop road
[of] 13,500" square feet in the rear property.
Ten months later, on July 13, 2011, Todash further inspected
the property and observed that Warrington constructed a pole barn
on the concrete pad. In August 2011, Todash conducted an
inspection of the front property and riparian buffer, and took
three soil borings at locations immediately adjacent to
Warrington's property that had not been filled or disturbed. He
considered making a fourth soil boring, but did not because the
location had standing water. He did, however, observe vegetation
consistent with the presence of wetlands in that area.
Based on his analysis of the soil borings, observations of
the fill and vegetation, and examination of the county soil
surveys, Todash determined Warrington disturbed 19,780 square feet
of freshwater wetlands on the front property and 4300 square feet
on the riparian buffer.
Relying on Sekoni's inspection notes and records, Todash
also determined Warrington cleared and filled approximately 8720
square feet of wetlands and an additional 14,000 square feet of
6 A-1173-16T1
wetlands transition area in the rear property. Todash further
determined Warrington constructed a bridge across the tributary
that disturbed an additional 360 square feet within the riparian
buffer.
In January 2012, the NJDEP issued an Administrative Order and
Notice of Civil Administrative Penalty Assessment (AONOCAPA)
asserting Warrington conducted activities on his property without
first obtaining permits in violation of the FWPA and the FHACA.
The AONOCAPA alleged Warrington violated the FWPA by: clearing
vegetation and placing fill material and grading to create an
access road in the front property "resulting in the disturbance
of approximately 8720 square feet of freshwater wetlands" without
a permit; clearing vegetation and placing fill material and grading
in the front property "to create a lawn area and access road
resulting in the disturbance of approximately 19,780 square feet
of freshwater wetlands" without the required permits; clearing
vegetation and constructing a "30 by 40 foot concrete pad,
resulting in the disturbance of approximately 14,000 square feet
of freshwater wetlands transition area" in the rear property
without a permit; and erecting a "30 by 40 foot pole barn/garage
structure" on the concrete pad in 2011.
The AONOCAPA also stated Warrington violated the FHACA in
2008 by constructing a bridge over the Still Run tributary
7 A-1173-16T1
"impacting approximately 360 square feet" of a "flood hazard area"
without a permit, and in 2010 by creating a lawn area and access
road resulting in the disturbance of "approximately 4300 square
feet of the Riparian Buffer associated with a tributary of Still
Run."
The AONOCAPA identified a total wetlands disturbance of
28,500 square feet, a wetlands transition area disturbance of
14,000 square feet, and a flood hazard area/riparian zone
disturbance of 4660 square feet.
The AONOCAPA required that Warrington "immediately cease all
regulated activities" and submit a restoration plan within twenty
days. The DEP also imposed a $17,000 administrative penalty.
Warrington requested a hearing, and the matter was transferred to
an administrative law judge (ALJ) for a hearing.
At the hearing before the ALJ, Sekoni did not testify because
he was no longer employed by the NJDEP,2 but his field notes from
his 2008 inspection of the rear property, describing his soil
borings, observations of the rear property, calculations of the
size of the total freshwater wetlands disturbance (8720 square
feet), freshwater wetlands transition disturbance (14,000 square
2
It was represented by NJDEP counsel that Sekoni had also
relocated to Texas.
8 A-1173-16T1
feet) and flood hazard area disturbance (360 square feet),3 and
including drawings of the property and disturbed areas, were
admitted in evidence.
Todash testified concerning his review of Sekoni's notes,
aerial photographs of the property and his inspections of the
property in June 2010 prior to the issuance of the NOV. He also
testified concerning his subsequent inspection of the property in
July 2011, and the soil borings and property inspection he
conducted the following month. He explained that he compared the
soil borings to the colors on a Munsell Soil Color Chart (Munsell
Chart),4 made other observations of the soil and drainage patterns,
considered the dominant vegetation and aerial photographs showing
the front property had been cleared, and determined the front
property was comprised of wetlands and wetlands transition areas
that Warrington cleared and filled. Todash also explained that
3
Although the record refers to a 360 square foot disturbance
attributable to the bridge construction, Sekoni's notes list a 306
square foot disturbance. The NJDEP ultimately determined
Warrington did not violate the FHACA because he did not construct
the bridge. We therefore need not address or resolve the conflict
between the sizes of the alleged disturbance areas.
4
The Federal Manual for Identifying and Delineating
Jurisdictional Wetlands, 11-12 (1989) provides for the use of the
Munsell Soil Color Chart to test and compare soil samples.
9 A-1173-16T1
the fifty-foot riparian buffer had been cleared, resulting in a
total flood hazard area disturbance of 4300 square feet.5
NJDEP senior geologist and Land Use Permitting Section
Officer Brett Kosowski testified he visited the property in June
2010 and, based on his "best professional judgment," determined
there was fill in the front property because it was at an elevation
different than the surrounding undisturbed areas and its surface
had what appeared to be recently planted grass. He also testified
he asked Smith from Key Engineering to prepare a pre-permit
application document summarizing the "viability of a permit."
Kosowski identified a September 27, 2010 letter from Smith,
which included the Wetland Boundary Survey. Warrington's counsel
objected to the admission of the letter and survey, contending
they were inadmissible because they were provided as part of
settlement negotiations. The NJDEP argued they were provided
pursuant to the pre-application process for the requisite permits,
and constituted admissions on Warrington's behalf by his
authorized agent. The court admitted the letter, which included
a statement that Warrington placed fill on the property, because
5
Todash calculated the 4300 square foot flood hazard area
disturbance by multiplying the fifty-foot width of the riparian
buffer by the eighty-six-foot length of the tributary across
Warrington's property.
10 A-1173-16T1
the letter did not identify the location of the fill and Warrington
did not dispute he filled in areas of the property.
The court reserved decision as to whether the survey, which
included statements concerning the placement of fill and the
location of wetlands and wetlands transition areas, constituted
an admission by Warrington. The NJDEP later moved the survey into
evidence and, without any objection from Warrington, the ALJ
admitted it in evidence. In the ALJ's final opinion and
recommendation, he addressed the admissibility of the survey, and
concluded the survey was prepared by Smith as Warrington's agent
and constituted an admission on Warrington's behalf. The ALJ
rejected the notion the survey was submitted to the NJDEP in
furtherance of any settlement negotiations.
The NJDEP's final witness, Barbara Baus, testified concerning
the agency's calculation of the administrative penalty. She
explained there was a miscalculation of the $17,000 penalty
assessed in the AONOCAPA, and that the correct penalty was $16,000.
Warrington presented Gary Brown, a licensed site remediation
professional, who was qualified as an expert in wetlands and
delineation of wetlands. He testified that one of his employees,
Ahren Ricker, conducted tests of the soil on the property and took
photographs in September 2014. Ricker did not compare any soil
on the property to the Munsell Chart, but instead used open test
11 A-1173-16T1
pits to assess the presence of wetlands and wetlands transition
areas. According to Brown, the test pits showed no wetlands on
the property except in the areas adjacent to the tributary. He
based his opinion on the lack of standing water in the test pits,
the water level in the soil and the surrounding vegetation.
Warrington also testified. He explained the bridge over the
tributary was on the property when he purchased it in 1999. He
explained that he only replaced the decking on the bridge. He
admitted he cleared the property to make his yard "a little
bigger," by "cut[ting] down all the vegetation in 2000" and
building the road. He also acknowledged cutting down approximately
twenty trees in the rear property, and installing the concrete
pad. He denied seeing any muddy areas, or standing water, on any
of the areas he disturbed.
The ALJ issued a detailed and comprehensive written decision.
He observed that there was no dispute Warrington disturbed the
areas of the property alleged by the NJDEP and that the issue
presented was whether the NJDEP proved the affected areas
constituted wetlands, wetlands transition areas and flood hazard
areas. The ALJ determined the front property consisted of wetlands
and wetlands transition areas based on Todash's testimony, which
the judge found more credible than Brown's testimony.
12 A-1173-16T1
The ALJ also determined the NJDEP proved the disturbed areas
in the rear property were wetlands and wetlands transition areas.
He relied on portions of Sekoni's notes and records, finding they
were admissible as business records, N.J.R.E. 803(6), and public
records, N.J.R.E. 803(8). He found those portions of Sekoni's
notes setting forth his determination the rear property consisted
of wetlands and wetlands transition areas were hearsay, but he
found independent admissible evidence corroborating the
determination was provided in the September 21, 2010 Wetland
Boundary Survey Smith submitted to the NJDEP. The ALJ concluded
the survey constituted an admission by Warrington because Smith
was Warrington's agent, the survey was submitted in furtherance
of the permit process and it was not provided as part of any
settlement negotiations.
Last, the ALJ determined the NJDEP established Warrington
violated the FHACA by disturbing the riparian buffer and
constructing a bridge across the tributary. He rejected
Warrington's post-trial contention that the tributary was exempt
from the FHACA's coverage because it was a manmade canal. See
N.J.A.C. 7:13-2.2. The ALJ determined Warrington waived the
argument because it was not raised during pretrial discovery or
asserted during trial, and was asserted for the first time in
Warrington's post-trial submissions.
13 A-1173-16T1
Warrington filed exceptions to the ALJ's decision. In its
final decision, the NJDEP accepted in part and rejected in part
the ALJ's findings and recommendation. The NJDEP found the front
property and rear property consisted of wetlands and wetlands
transition areas, and that Warrington disturbed them by removing
vegetation, installing fill, and constructing the road, concrete
pad and barn. The NJDEP also accepted the ALJ's finding Warrington
disturbed the 4300 square foot riparian buffer, thereby violating
the FHACA. The NJDEP rejected the ALJ's finding Warrington
disturbed 360 square feet of the riparian buffer by constructing
the bridge because it accepted Warrington's testimony the bridge
was present when he purchased the property in 1999. The NJDEP
thereby reduced the recommended administrative penalty to $14,000.
Warrington appealed.
On appeal, Warrington presents the following arguments for
our consideration:
POINT ONE
THE TRIAL JUDGE IMPROPERLY CONSIDERED THE
NOTES AND OTHER DOCUMENTS OF . . . SEKONI, WHO
DID NOT TESTIFY. MOREOVER, EVEN IF SEKONI'S
NOTES WERE SOMEHOW PROPERLY ADMITTED, THEY
WERE INSUFFICIENT TO ESTABLISH THE ALLEGED
VIOLATIONS INVOLVING THE GARAGE AREA[.]
14 A-1173-16T1
POINT TWO
THE KEY ENGINEERS DOCUMENTS WERE NON-
EVIDENTIAL SETTLEMENT COMMUNICATIONS AND
PROPOSALS OF ADJUSTMENT[.]
POINT THREE
THE NJDEP FAILED TO SATISFY ITS BURDEN OF
PROOF THAT . . . WARRINGTON DISTURBED 19,780
SQUARE FEET OF FRESHWATER WETLANDS IN THE
FRONT OF THE PROPERTY OR 14,220 SQUARE FEET
OF WETLANDS TRANSITION AREA IN THE BACK OF THE
PROPERTY BECAUSE MR. BROWN WAS NOT REQUIRED
TO UTILIZE A MUNSELL CHART WHEN CONDUCTING HIS
TESTING, AND THE NJDEP FAILED TO SHOW THAT ITS
TESTING WAS EVEN CONDUCTED ON THE PROPERTY[.]
POINT FOUR
THE FHACA AND ITS ACCOMPANYING REGULATIONS DO
NOT APPLY TO THIS MATTER BECAUSE THE WATERWAY
IN QUESTION IS A "MANMADE CANAL," THEREBY
PLACING IT OUTSIDE THE SCOPE OF THE FHACA[.]
II.
Our scope of review of agency decisions is limited. We defer
to the agency's ultimate determination unless it is arbitrary,
capricious or unreasonable, violates legislative policies
expressed or implied in the enabling legislation, or the findings
on which the decision was based were not supported by substantial,
credible evidence. In re Virtua-West Jersey Hosp., 194 N.J. 413,
422 (2008). When an error in the agency's fact finding is alleged,
our review is limited to assessing whether sufficient credible
evidence exists in the record to support those findings. Close
15 A-1173-16T1
v. Kordulak Bros., 44 N.J. 589, 599 (1965). This review must
encompass "the proofs as a whole," and must take into account "the
agency's expertise where such expertise is a pertinent factor."
Ibid. "The burden of demonstrating that the agency's action was
arbitrary, capricious or unreasonable rests upon the [party]
challenging the administrative action." In re Arenas, 385 N.J.
Super. 440, 443-44 (App. Div. 2006). Warrington fails to meet
that burden here.
A.
Warrington first contends the ALJ and the NJDEP erred by
basing their conclusions he disturbed wetlands and wetlands
transition areas in the rear property on Sekoni's determination,
as reflected in his field notes, that the disturbed portions of
the rear property were comprised of wetlands and wetlands
transition areas. Warrington argues the notes constitute hearsay,
which was not corroborated by other competent evidence as required
under the residuum rule, N.J.A.C. 1:1-15.5(b). We are not
persuaded.
Subject to a judge's discretion, N.J.A.C. 1:1-15.5(a) permits
the admission of hearsay in administrative proceedings. ZRB, LLC
v. N.J. Dep't of Envtl. Prot., Land Use Regulation, 403 N.J. Super.
531, 557 (App. Div. 2008). Nevertheless, "some legally competent
evidence must exist to support each ultimate finding of fact to
16 A-1173-16T1
an extent sufficient to provide assurances of reliability and to
avoid the fact or appearance of arbitrariness." N.J.A.C. 1:1-
15(b). "Under the residuum rule, N.J.A.C. 1:1-15.5.5(b), hearsay
is admissible in administrative hearings to corroborate other,
non-hearsay evidence." Hemsey v. Bd. of Trs., Police & Firemen's
Retirement Sys., 393 N.J. Super. 524, 534 (App. Div. 2007), rev'd
in part on other grounds, 198 N.J. 215 (2009).
Sekoni's notes included his determination the disturbed
portions of the rear property were comprised of wetlands and
wetlands transition areas. The ALJ correctly concluded the
determination constituted hearsay,6 see N.J.R.E. 801, but properly
6
The ALJ found the portions of Sekoni's notes reflecting his
objective findings were admissible under the business records,
N.J.R.E. 803(c)(6), and public records, N.J.R.E. 803(8),
exceptions to the hearsay rule, N.J.R.E. 801. Warrington does not
challenge those determinations on appeal. The ALJ, however, also
determined that Sekoni's opinions, including his opinion the
disturbed areas of the rear property were comprised of wetlands
and wetlands transition areas constituted inadmissible hearsay.
See N.J.R.E. 805 (providing that a statement "within the scope of
an exception" to the rule against hearsay is inadmissible where
it includes a hearsay statement not falling within any hearsay
exception). "[W]hen 'statements are hearsay-within-hearsay, each
level . . . requires a separate basis for admission into
evidence.'" Konop v. Rosen, 425 N.J. Super. 391, 402 (App. Div.
2012) (citation omitted). Moreover, under N.J.R.E. 808, where an
otherwise admissible hearsay statement includes embedded hearsay
in the form of an expert opinion, the expert opinion "shall be
excluded if the declarant has not been produced as a witness unless
. . . the circumstances involved in rendering the opinion . . .
tend to establish its trustworthiness." N.J.R.E. 808; see also
James v. Ruiz, 440 N.J. Super. 45, 62 (App. Div. 2015) (noting
17 A-1173-16T1
admitted the notes because hearsay is admissible in a contested
case, N.J.A.C. 1:1-15.5(a); ZRB, LLC, 403 N.J. Super. at 557.
Warrington contends, however, that Sekoni's determination was
not sufficiently corroborated by competent evidence as required
under the residuum rule. More particularly, Warrington contends
the ALJ erred by finding Sekoni's determination was corroborated
by the Key Engineering survey because the ALJ erroneously concluded
the survey constituted an admission made on Warrington's behalf,
and the survey was otherwise inadmissible under N.J.A.C. 1:1-15.10
because it was submitted to the NJDEP in furtherance of settlement
negotiations.
We find no basis to reverse the ALJ's acceptance of the survey
as Warrington's admission, and rejection of Warrington's
contention the survey was inadmissible under N.J.A.C. 1:1-15.10.
Generally, the "admission or exclusion of proffered evidence is
within the discretion of the trial judge whose ruling is not
disturbed unless there is a clear abuse of discretion." Dinter
v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. 1991).
An abuse of discretion "arises when a decision is 'made without
rational explanation, inexplicably departed from established
that the "import of N.J.R.E. 808 . . . is that some expert opinions
contained in business records or other sources are admissible, but
others are not.").
18 A-1173-16T1
policies, or rested on an impermissible basis.'" Flagg v. Essex
Cty. Prosecutor, 171 N.J. 561, 571 (2002) (citation omitted). We
find no abuse of discretion here.
"Settlement of litigation ranks high in our public policy."
Nolan v. Lee Ho, 120 N.J. 465, 472 (1990). N.J.A.C. 1:1-15.10
provides that "[o]ffers of settlement, proposals of adjustment and
proposed stipulations shall not constitute an admission and shall
not be admissible" in administrative hearings. In Gannett N.J.
Partners, LP v. Cty. of Middlesex, 379 N.J. Super. 205, 221 (App.
Div. 2005), we construed N.J.R.E. 408, which provides that "offers
of compromise or any payment in settlement of a related claim,
shall not be admissible to prove liability for, or invalidity of,
or amount of the disputed claim." We determined that a
communication is not a "settlement communication" where the
communication "does not contain any 'offer[] of compromise' or
other statement related to [a] settlement." Ibid.As noted, Sekoni issued the initial FNOV on May 13, 2008, and
the next day Warrington advised the NJDEP he intended to obtain
permits for the disturbance of his property. He testified he then
retained Key Engineering in support of his efforts to obtain the
permits. In rejecting Warrington's contention the survey
constituted an offer of settlement or compromise under N.J.A.C.
1:1-15.10, the ALJ found Warrington
19 A-1173-16T1
decided to seek to obtain a permit or permits
to regularize the legal status of his
property, that is, he determined to follow the
normal application process and submit to the
[NJ]DEP whatever was needed to obtain the
appropriate permits. In the normal course of
that application process, his authorized agent
decided to first prepare a Wetland Boundary
Survey, and then to revise it to take into
account whatever he believed was proper to
secure the permit(s), which no doubt might
include consideration of [NJ]DEP's
understanding as to what the condition of the
property was and had previously been. There
appears to be nothing at all unusual about the
preparation of a revision of the original
survey. At the time of its submission, no
claim was made that is was confidential, that
it was prepared as an offer of settlement or
compromise . . . . There is no suggestion here
that Warrington, acting through an authorized
agent in a manner that could then be
considered as a statement by Warrington
himself, was by his communication offering a
settlement or compromise. There is no
evidence of attorney involvement here, [and]
no suggestion of any ongoing "negotiation."
We defer to the ALJ and the NJDEP's findings of fact where,
as here, they are supported by substantial credible evidence. In
re Taylor, 158 N.J. 644, 656 (1999). The findings support the
NJDEP's determination the survey was submitted by Warrington's
authorized agent in furtherance of Warrington's efforts to obtain
permits, and not as an offer of compromise or as part of any
settlement negotiations. The ALJ did not abuse its discretion by
20 A-1173-16T1
rejecting Warrington's objection to admission of the survey under
N.J.A.C. 1:1-15.10.7
In sum, the record supports the ALJ's determination the survey
was submitted in furtherance of the processing of Warrington's
permit requests, and not as an offer of settlement or compromise
subject to the strictures of N.J.A.C. 1:1-15.10. The ALJ did not
err by admitting the survey in evidence, concluding it constituted
an admission by Warrington through his authorized agent, and
determining it provided competent evidence corroborating Sekoni's
determination defendant disturbed wetlands and wetlands transition
areas on the rear property under the residuum rule. See Ruroede
v. Borough of Hasbrouck Heights, 214 N.J. 338, 361-62 (2013)
(noting the residuum rule was not violated where inadmissible
hearsay evidence was supported by hearsay evidence "properly
admitted under N.J.R.E. 803(b)(1)"). We affirm the NJDEP's order
finding Warrington violated the FWPA by disturbing wetlands and
wetlands transition areas in the rear property.
7
We note that the ALJ erred by suggesting, in reference to the
submission of the survey, that Warrington first decided to obtain
permits following the January 2012 AONOCAPA. Warrington first
advised the NJDEP he intended to obtain permits two years earlier
on the day following Sekoni's May 13, 2008 FNOV, and Kosowski
testified he requested that Key Engineering a provide a pre-permit
application guidance document summarizing the "viability of a
permit." The survey is dated September 21, 2010 and submitted by
letter dated September 27, 2010, sixteen months before the
AONOCAPA.
21 A-1173-16T1
B.
Warrington also argues there was insufficient evidence
supporting the NJDEP's determination the front property was
comprised of wetlands and wetlands transition areas. Warrington
contends the NJDEP erred by finding Todash's testimony credible,
and rejecting Brown's testimony that the front property contained
neither wetlands nor wetlands transition areas.
Warrington's argument is without merit sufficient to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only
that Warrington does not dispute Todash's testimony, if accepted
as credible, established the disturbed portions of the front
property consisted of wetlands and wetlands transition areas.
We give "due regard" to the ability of the factfinder who
heard the witnesses to judge credibility, Close, 44 N.J. at 599,
and defer to credibility findings "that are often influenced by
matters such as observations of the character and demeanor of
witnesses and common human experience that are not transmitted by
the record." State v. Locurto, 157 N.J. 463, 474 (1999). More
specifically, "the choice of accepting or rejecting the testimony
of witnesses rests with the administrative agency, and where such
choice is reasonably made, it is conclusive on appeal." Renan
Realty Corp. v. State, Dep't of Cmty. Affairs, Bureau of Hous.
Inspection, 182 N.J. Super 415, 421 (App. Div. 1981).
22 A-1173-16T1
We defer to the ALJ's determinations that Todash provided
credible testimony and Brown did not, and affirm the NJDEP's order
finding Warrington violated the FWPA because Todash's testimony
established Warrington disturbed wetlands and wetlands transition
areas in the front property.
C.
Warrington last contends the NJDEP erred by finding he
violated the FHACA by disturbing the fifty-foot-wide riparian
buffer. Warrington contends the tributary is actually a manmade
canal and therefore exempt from the FHACA's coverage under N.J.A.C.
7:13-2.2(a)(1), which provides that "[a]ll waters in New Jersey
are regulated under this chapter except for . . . any manmade
canal." In support of his position, Warrington relies on Brown's
testimony the alleged tributary is a manmade waterway constructed
for purposes of irrigation during the property's prior usage as
farmland.
The ALJ did not address the merits of Warrington's contention
because it was not asserted in any of the pretrial discovery
requests for the identification of Warrington's defenses, and was
not argued during trial. The ALJ determined Warrington's failure
to raise the defense in his pretrial discovery responses unfairly
prejudiced the NJDEP.
23 A-1173-16T1
In its final decision, the NJDEP did not reject Warrington's
claim on the grounds relied upon by the ALJ, and instead addressed
the merits. The NJDEP noted although the term canal is not defined
in N.J.A.C. 7:13-2.2(a)(1), it is "understood to be a manmade
feature that does not have a distinct flood hazard area or riparian
zone, and which is often maintained by a government agency." See
39 N.J.R. 4595 (Nov. 5, 2007). The NJDEP noted Todash's testimony
the tributary is a regulated water with a fifty-foot riparian
buffer and found Brown's testimony was insufficient to establish
the tributary was manmade within the meaning of N.J.A.C. 7:13-
2.2(a)(1).
Again, the NJDEP's determination is supported by sufficient
credible evidence, and we defer to its determination accepting
Todash's testimony and not Brown's. We discern no abuse of
discretion in the NJDEP's determination there was insufficient
evidence establishing the tributary was an exempt manmade canal
under N.J.A.C. 7:13-2.2(a)(1). Warrington's contention the NJDEP
bore the burden of proving the tributary was not an exempt manmade
canal under N.J.A.C. 7:13-2.2(a)(1) is without merit sufficient
to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
24 A-1173-16T1