September 1, 2014

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New Jersey Supreme Court Bars Department of Environmental Protection (DEP) From Warrantless Residential Inspections

In an April 4, 2013 decision, the Supreme Court of New Jersey ruled that the constitution prohibits the Department of Environmental Protection from conducting warrantless inspections of residential property without the consent of the homeowner.  Under both the federal and New Jersey constitutions, nonconsensual warrantless searches are generally prohibited.  The warrant requirement applies not only in the traditional criminal law enforcement context, but also to regulatory compliance inspections by administrative agency personnel.  One long-recognized exception to the warrant requirement applies to administrative inspections of the commercial premises of a closely regulated business.  Under this exception, DEP may generally conduct nonconsensual warrantless inspections of businesses whose activities are heavily regulated by DEP permits.

In DEP v. Huber, an April 4, 2013 decision, the Supreme Court of New Jersey ruled that the constitution prohibits the Department of Environmental Protection from conducting warrantless inspections of residential property without the consent of the homeowner., the Supreme Court of New Jersey considered whether the warrant exception applies to residential property regulated by a freshwater wetlands permit and a DEP-mandated conservation easement recorded in the property’s chain of title.  The Hubers allegedly filled wetlands protected by the easement in order to create additional lawn area and other improvements.  The New Jersey Supreme Court decided that the warrantless administrative inspection exception is limited to commercial premises, and that a DEP inspector denied access to residential property must secure a warrant before entering and inspecting.

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About this Author

Paul H. Schneider, GIordano Law Firm, Litigation Attorney
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Mr. Schneider, co-chair of the Litigation Practice Area, focuses his practice in environmental, redevelopment, land use, regulatory, real estate and affordable housing law, and litigation. Mr. Schneider also handles a wide variety of redevelopment matters as well as corporate and commercial litigation. In addition to handling major litigation before both the state and federal courts and the Office of Administrative Law, he has extensive experience before the New Jersey Supreme Court and the Appellate Division.

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