LH WAGNER REALTY CORPORATION VS. BOB MARTIN, COMMISSIONER, NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION (L-2131-12, MONMOUTH COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-5575-16T2

LH WAGNER REALTY CORPORATION
and LEO H. WAGNER,

Plaintiffs-Appellants,

v.

BOB MARTIN, COMMISSIONER,
NEW JERSEY DEPARTMENT OF
ENVIRONMENTAL PROTECTION,

Defendant-Respondent.
____________________________________________

Submitted September 12, 2018 – Decided September 19, 2018

Before Judges Fasciale and Gooden Brown.

On appeal from Superior Court of New Jersey, Law
Division, Monmouth County, Docket No. L-2131-12.

Mark Williams, attorney for appellants.

Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel; Jennifer L. Moriarty, Deputy
Attorney General, and Jason B. Kane, Deputy Attorney
General, on the brief).
PER CURIAM

This appeal is the final chapter in approximately two decades of litigation

between the parties. LH Wagner Realty Corporation (Wagner) and Leo H.

Wagner (collectively plaintiffs) have repeatedly challenged their inability to

develop three lots that the New Jersey Department of Environmental Protection

(defendant) designated as wetlands. Plaintiffs maintain that the wetlands

designation otherwise amounts to defendant's trespass, taking, and acquisition

of a possessory interest in the three lots, which plaintiffs argue supports their

action for ejectment.

Plaintiffs appeal from four orders resulting in the dismissal with prejudice

of their second consolidated amended complaint. Two orders – dated May 12,

2017 – denied plaintiffs' motion for partial summary judgment seeking to eject

defendant from the property, and granted defendant's cross-motion to dismiss

plaintiffs' ejectment cause of action. The other two orders – dated July 7, 2017

– denied plaintiffs' motion for reconsideration of the May 12, 2017 orders, and

granted defendant's motion for summary judgment on the remaining counts in

the second consolidated amended complaint. 1 Judge Dennis R. O'Brien entered

1
Plaintiffs did not oppose defendant's motion for summary judgment of their
claims for slander of title (Count Three) and inverse condemnation (Count Five).

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the orders and rendered two comprehensive oral opinions. Applying a de novo

standard – and recognizing that the material facts are undisputed – we affirm.

Wagner originally sold thirty-two of seventy-eight lots to My-Ben

Associates (MBA), including the three lots in question. My-Ben Development

Corporation (MBDC) worked with MBA to develop the property that MBA

acquired. The same people owned and controlled MBA and MBDC. Defendant

issued a Notice of Violation (NOV) to MBDC – while MBA remained the record

owner at the time – for unlawfully filling wetlands during the development of

the thirty-two lots.

Defendant and MBA, the record owner of the three lots, entered into

negotiations to address the violation. Meanwhile, MBA took steps to convey

the three lots back to Wagner for no consideration, but agreed to hold the deed

for that conveyance until MBA and Wagner authorized its release. Before

Wagner eventually recorded the deed related to its re-acquisition of the three

On appeal, plaintiffs have not briefed those issues, or the issues related to their
square corners claim (Count Four). Accordingly, we need not address the
dismissal of those claims. See Pressler & Verniero, Current N.J. Court Rules,
cmt. 5 on R. 2:6-2 (2018); see also Sklodowsky v. Lushis, 417 N.J. Super. 648,
657 (App. Div. 2011) (stating "[a]n issue not briefed on appeal is deemed
waived"). But we otherwise rely substantially on the judge's reasoning that
those causes of action are completely without merit.

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lots, defendant and MBDC had entered into an administrative consent order

(ACO), which resolved the violation.

Under the ACO, MBDC mitigated its unauthorized placement of fill. The

ACO required MBDC to create approximately one-third of an acre of wetlands

on the three lots, which was adjacent to pre-existing wetlands on the same three

lots. Consequently, the three lots became unbuildable.2

After the issuance of the ACO, MBA and Wagner released the deed. The

record demonstrates that Leo Wagner was fully aware of the ACO and its

building restrictions on the three lots, yet once he recorded the deed for the

conveyance, he applied to defendant for a permit to build on the three lots.

Defendant denied the application.

Wagner essentially ignored the denial and commenced building activity

on the three lots. Defendant then issued a new NOV, this one to Wagner , for

unlawfully digging ditches and draining the wetlands on the three lots.

Defendant ordered Wagner to submit a payment and restoration plan, but

Wagner refused. Instead, Wagner administratively appealed defendant's penalty

assessment, which we upheld.

2
Counsel for MBA or MBDC unsuccessfully attempted to record a
conservation restriction. When Wagner became the record owner of the three
lots, it did not record one, although defendant had requested that Wagner do so.
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 On this appeal, plaintiffs argue primarily that: (1) they established valid

causes of action for ejectment and trespass; and (2) NJDEP v. Wagner, No. A-

5205-05 (App. Div. Aug. 7, 2007) (upholding the imposition of administrative

penalties against Wagner) is inapplicable. We conclude that plaintiffs'

arguments are without sufficient merit to warrant discussion in a written

opinion, Rule 2:11-3(e)(1)(E), and affirm substantially for the detailed reasons

expressed by Judge O'Brien. We add the following comments.

The doctrine of collateral estoppel bars plaintiffs' repeated challenges to

the ACO's validity and applicability. And even though the parties previously

litigated those issues, we conclude that, on the merits, plaintiffs' contentions are

baseless. Defendant's statutory regulation of the three lots – due to the presence

of approximately 2.3 acres of pre-existing natural wetlands and the ACO

creating approximately one-third of an acre of additional wetlands – does not

amount to defendant's trespass on the three lots or create a related possessory

interest justifying an ejectment action against defendant.

In support of their cause of action for ejectment and trespass, plaintiffs

nevertheless maintain that the ACO is not binding on them. We emphasize that,

as part of Wagner's previous appeal from defendant's imposition of sanctions ,

the parties fully litigated the validity of the ACO and, specifically, its

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applicability to Wagner. Thus, the ACO's restrictions, which clearly include the

associative inability to build on the three lots, bind plaintiffs. That said,

plaintiffs repeat their contentions on this appeal.

Wagner had previously argued that defendant had no authority to restrict

Wagner's filling of the wetlands on the three lots – and thereby build on that

property – because MBDC, not Wagner, signed the ACO. On this appeal,

plaintiffs maintain their position that they owned the three lots at the time

defendant and MBDC entered into the ACO. But we fully addressed and

rejected that argument in the prior appeal.

[W]e reject Wagner's claim that the 1996 ACO was
invalid because it was executed by [MBDC] and not by
Wagner. As the DEP has maintained throughout, at the
time of the entry of the order, [MBA] was the record
owner of the affected property, since its transfer,
without consideration, was not recorded until 2000.
Moreover, at the time the consent order was executed,
[Leo] Wagner essentially conceded its applicability to
him, as well as to [MBA], arguing to the DEP only that
a different remedy should have been imposed.
[MBDC's] right to enter into the ACO was not
challenged by Wagner until 2002, at a time long after
the remediation had occurred and the wetland areas had
been created. In the circumstances presented, any
dispute arising now as to ownership is properly between
Wagner and [MBA or MBDC], not Wagner and the
DEP.

[Wagner, slip op. at 15-16 (emphasis added).]

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Plaintiffs further argue that the ACO is not binding on them because MBA failed

to execute the ACO. In 2007, we were fully aware that MBA was the record

owner of the three lots. It is clear that MBA knew about and consented to the

ACO: MBA and MBDC – companies that we referred to interchangeably in our

prior opinion – worked together to develop the property; the two entities shared

the same address, had the same principals, and the corporate filings for MBA

and MBDC listed the same registered agent. So MBDC's execution of the ACO,

instead of MBA, does not render the ACO invalid as to MBA or plaintiffs.

The failure to record the conservation restriction for the three lots adds no

support to plaintiffs' contention that the ACO is not binding on them, an d

provides no basis for an ejectment or trespass action against defendant. The

Freshwater Wetlands Protection Act, N.J.S.A. 13:9B-1 to -30, requires a

mitigation area be protected through a conservation restriction, which is

designed to notify present and future parties of the restriction, rather than to

authorize entry onto the property to implement mitigation.

Here, MBA consented to the ACO restrictions and mitigation. Plaintiffs

knew about the ACO negotiations when they executed the deed for the

conveyance of the three lots. Leo Wagner had doubts – long before any

mitigation occurred – about potential development of the three lots. In fact,

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most of the wetlands on the three lots (2.3 acres as opposed to the one-third of

an acre created under the ACO) were pre-existing, that is, naturally present.

Therefore, plaintiffs had notice of the ACO requirements, and the lack of a

recorded conservation restriction provides no basis for plaintiffs' ejectment and

trespass actions.

As to the trespass claim, Wagner did not take title of the three lots until

after the mitigation and monitoring occurred. In other words, MBA remained

the record owner of the three lots at all critical times. MBA, not defendant,

entered the three lots to create the wetlands. As a State agency, defendant

regulated the three lots. But even if that were not the case, pursuant to the ACO,

MBA would have authorized defendant's entry onto the three lots. Thus, the fact

that defendant did not commit an unauthorized entry onto the three lots in-and-

of-itself defeats plaintiffs' trespass cause of action. And even if defendant

committed an unauthorized entry onto the three lots – which is not the case –

the judge fully explained and properly applied New Jersey Tort Claims Act's

two-year statute of limitations, N.J.S.A. 59:8-8(b), barring the purported

trespass claim, which would have expired in 1999, and which never restarted

because there was no continued trespass.

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 As to the soundness of the judge's order dismissing plaintiffs' ejectment

claim – which we have considered even though plaintiffs identified the May 12,

2017 orders in their case information statement rather than in their notice of

appeal – we conclude that Judge O'Brien correctly applied the law. Defendant's

actions as to the three lots did not create a possessory interest in that property,

and defendant has never claimed a right to possession or title to the three lots.

That is to say, defendant's statutory regulation of the three lots does not mean

that defendant physically possessed them.

Affirmed.

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