William W. Lisowski v. Borough of Avalon And
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Opinion
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NOS. A-0065-13T1 A-3947-13T2
WILLIAM W. LISOWSKI and CLARA E. LISOWSKI,
Plaintiffs-Respondents, APPROVED FOR PUBLICATION
September 9, 2015 v. APPELLATE DIVISION BOROUGH OF AVALON,
Defendant-Respondent,
and
STATE OF NEW JERSEY TIDELANDS RESOURCE COUNCIL,
Defendant-Appellant. _____________________________
STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION,
Plaintiff-Respondent,
v.
TOWNSHIP OF DELANCO,
Defendant-Appellant.
__________________________________________________________
Argued March 16, 2015 in A-0065-13 and February 23, 2015 in A-3947-13 – Decided September 9, 2015 Before Judges Lihotz, Espinosa and St. John.
On appeal from Superior Court of New Jersey, Chancery Division, Cape May County, Docket No. C-0058-11 in A-0065-13.
On appeal from Superior Court of New Jersey, Chancery Division, Burlington County, Docket No. C-0044-12 in A-3947-13.
Melissa P. Abatemarco and John R. Renella, Deputy Attorneys General, argued the cause for appellant in A-0065-13 (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Abatemarco and Nicolas G. Seminoff, Deputy Attorney General, on the briefs).
Douglas L. Heinold argued the cause for appellant in A-3947-13 (Raymond, Coleman, Heinold & Norman, LLP, attorneys; Mr. Heinold and Stephen E. Raymond, of counsel and on the brief).
Richard M. Hluchan argued the cause for respondents William W. and Clara E. Lisowski in A-0065-13 (Hyland Levin, LLP, attorneys; Mr. Hluchan, of counsel; David G. Gunther, on the brief).
Neil Yoskin argued the cause for respondent Borough of Avalon in A-0065-13 (Sokol, Behot & Fiorenzo, attorneys; Mr. Yoskin, on the brief).
Mark A. Collier and Jennifer L. Dalia, Deputy Attorneys General, argued the cause for respondent in A-3947-13 (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Collier and Ms. Dalia, on the brief).
2 A-0065-13T1 Edward C. Eastman, Jr., argued the cause for amicus curiae New Jersey Land Title Association in A-0065-13 (Davison, Eastman & Munoz, P.A., attorneys; Mr. Eastman and Michael J. Fasano, on the brief).
The opinion of the court was delivered by
ESPINOSA, J.A.D.
These appeals, which we have consolidated for decision in a
single opinion, challenge the sufficiency of the State's effort
to delineate and assert its claims to certain tideland property
within the time restriction established by the 1981 amendment to
the New Jersey Constitution, N.J. Const. art. VIII, § 5, ¶ I
(the Amendment). The Amendment applies to "lands that were
formerly tidal flowed, but which have not been tidal flowed at
any time for a period of 40 years," and precludes the State from
claiming such lands as riparian unless the State has
"specifically defined and asserted such a claim pursuant to law"
within the forty-year period. These cases require us once again
to discuss the interplay between N.J.S.A. 13:1B-13.1 to -13.6
(Title 13), and the Amendment.
Both cases challenge the sufficiency of the State's proofs
that it provided timely notice of its claim. In State of New
Jersey, Department of Environmental Protection v. Township of
Delanco (Delanco), the Township of Delanco (the Township) also
challenges the methodology used in delineating the claim.
3 A-0065-13T1 In Lisowski v. Borough of Avalon (Lisowski), plaintiffs
William W. and Clara E. Lisowski alleged the State failed to
timely assert its tideland claim against their property. This
challenge came thirty years after the Supreme Court held the
State had satisfied the Amendment's requirements to specifically
define and assert those riparian claims shown on a particular
map, Exhibit P-13 (P-13), and the base photomaps with claim
overlays. Dickinson v. Fund for the Support of Free Pub. Sch.,
95 N.J. 65, 84 (1983). It is undisputed that the Lisowski
property was among those claims on P-13 that were so defined and
asserted. Nonetheless, the Lisowskis argued the State failed to
timely assert its claim, contending Dickinson was not
dispositive, and the State failed to present proof of timely
filing in the applicable county and borough. The State of New
Jersey Tidelands Resource Council (the TRC)1 appeals from an
order that granted summary judgment to the Lisowskis, clearing
their title.
The disputed property in Delanco is an area adjacent to the
Delaware River known as the "Dunes," and was not delineated in
P-13. It was included on Map 448-1920, which was adopted by the
1 For ease of reference, we sometimes refer to the TRC and the State of New Jersey, Department of Environmental Protection as "the State."
4 A-0065-13T1 TRC on September 11, 1985. The State brought a quiet title
action pursuant to N.J.S.A. 12:3-8 against the Township,
alleging it had claimed the property as tidelands and seeking to
restrain the Township from opening a recreation park there. We
granted leave to the Township to appeal from an order in which
the trial court ruled the State had properly defined and
asserted its claim as required by the Amendment.
We reverse the order in Lisowski, finding this disposition
is required by the Supreme Court's decisions in Dickinson,
supra, and City of Jersey City v. Tidelands Resource Council, 95
N.J. 100 (1983). We affirm the order in Delanco, based upon the
holdings in Dickinson and Jersey City and the principles
underlying our deference to administrative decisions as
exemplified by City of Newark v. Natural Resource Council in
Department of Environmental Protection 82 N.J. 530, cert.
denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980).
Although the tortured path to the delineation of the State's
tidal claims has been recounted elsewhere, the issues presented
here are best understood within their historical context.
I.
As the successor to the rights of the English sovereign,
the colony, and later, the State, of New Jersey became the owner
in fee simple of the tidelands, "'all lands that are flowed by
5 A-0065-13T1 the tide up to the high-water line or mark.'" City of Long
Branch v. Liu, 203 N.J. 464, 475 (2010) (quoting O'Neill v.
State Highway Dep't, 50 N.J. 307, 323 (1967)); see also Matthews
v. Bay Head Improv. Ass'n, 95 N.J. 306, 317-20, cert. denied,
469 U.S. 821, 105 S. Ct. 93, 83 L. Ed. 2d 39 (1984).2 The TRC is
vested with responsibility "for the stewardship of the State's
riparian lands." N.J.S.A. 12:3-12.1.
Because this doctrine applies to "all lands that have ever
been flowed by the tide," an uncertainty as to ownership endured
that was difficult to resolve because, as the Court recognized,
"it is often exceedingly difficult to determine whether a
particular parcel, now dry, was once tidal flowed." Gormley v.
2 The principle "that land covered by tidal waters belonged to the sovereign, but for the common use of all the people," Borough of Neptune City v. Borough of Avon-by-the-Sea, 61 N.J. 296, 303 (1972), has been traced to the Justinian Code, which held that
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NOS. A-0065-13T1 A-3947-13T2
WILLIAM W. LISOWSKI and CLARA E. LISOWSKI,
Plaintiffs-Respondents, APPROVED FOR PUBLICATION
September 9, 2015 v. APPELLATE DIVISION BOROUGH OF AVALON,
Defendant-Respondent,
and
STATE OF NEW JERSEY TIDELANDS RESOURCE COUNCIL,
Defendant-Appellant. _____________________________
STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION,
Plaintiff-Respondent,
v.
TOWNSHIP OF DELANCO,
Defendant-Appellant.
__________________________________________________________
Argued March 16, 2015 in A-0065-13 and February 23, 2015 in A-3947-13 – Decided September 9, 2015 Before Judges Lihotz, Espinosa and St. John.
On appeal from Superior Court of New Jersey, Chancery Division, Cape May County, Docket No. C-0058-11 in A-0065-13.
On appeal from Superior Court of New Jersey, Chancery Division, Burlington County, Docket No. C-0044-12 in A-3947-13.
Melissa P. Abatemarco and John R. Renella, Deputy Attorneys General, argued the cause for appellant in A-0065-13 (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Abatemarco and Nicolas G. Seminoff, Deputy Attorney General, on the briefs).
Douglas L. Heinold argued the cause for appellant in A-3947-13 (Raymond, Coleman, Heinold & Norman, LLP, attorneys; Mr. Heinold and Stephen E. Raymond, of counsel and on the brief).
Richard M. Hluchan argued the cause for respondents William W. and Clara E. Lisowski in A-0065-13 (Hyland Levin, LLP, attorneys; Mr. Hluchan, of counsel; David G. Gunther, on the brief).
Neil Yoskin argued the cause for respondent Borough of Avalon in A-0065-13 (Sokol, Behot & Fiorenzo, attorneys; Mr. Yoskin, on the brief).
Mark A. Collier and Jennifer L. Dalia, Deputy Attorneys General, argued the cause for respondent in A-3947-13 (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Collier and Ms. Dalia, on the brief).
2 A-0065-13T1 Edward C. Eastman, Jr., argued the cause for amicus curiae New Jersey Land Title Association in A-0065-13 (Davison, Eastman & Munoz, P.A., attorneys; Mr. Eastman and Michael J. Fasano, on the brief).
The opinion of the court was delivered by
ESPINOSA, J.A.D.
These appeals, which we have consolidated for decision in a
single opinion, challenge the sufficiency of the State's effort
to delineate and assert its claims to certain tideland property
within the time restriction established by the 1981 amendment to
the New Jersey Constitution, N.J. Const. art. VIII, § 5, ¶ I
(the Amendment). The Amendment applies to "lands that were
formerly tidal flowed, but which have not been tidal flowed at
any time for a period of 40 years," and precludes the State from
claiming such lands as riparian unless the State has
"specifically defined and asserted such a claim pursuant to law"
within the forty-year period. These cases require us once again
to discuss the interplay between N.J.S.A. 13:1B-13.1 to -13.6
(Title 13), and the Amendment.
Both cases challenge the sufficiency of the State's proofs
that it provided timely notice of its claim. In State of New
Jersey, Department of Environmental Protection v. Township of
Delanco (Delanco), the Township of Delanco (the Township) also
challenges the methodology used in delineating the claim.
3 A-0065-13T1 In Lisowski v. Borough of Avalon (Lisowski), plaintiffs
William W. and Clara E. Lisowski alleged the State failed to
timely assert its tideland claim against their property. This
challenge came thirty years after the Supreme Court held the
State had satisfied the Amendment's requirements to specifically
define and assert those riparian claims shown on a particular
map, Exhibit P-13 (P-13), and the base photomaps with claim
overlays. Dickinson v. Fund for the Support of Free Pub. Sch.,
95 N.J. 65, 84 (1983). It is undisputed that the Lisowski
property was among those claims on P-13 that were so defined and
asserted. Nonetheless, the Lisowskis argued the State failed to
timely assert its claim, contending Dickinson was not
dispositive, and the State failed to present proof of timely
filing in the applicable county and borough. The State of New
Jersey Tidelands Resource Council (the TRC)1 appeals from an
order that granted summary judgment to the Lisowskis, clearing
their title.
The disputed property in Delanco is an area adjacent to the
Delaware River known as the "Dunes," and was not delineated in
P-13. It was included on Map 448-1920, which was adopted by the
1 For ease of reference, we sometimes refer to the TRC and the State of New Jersey, Department of Environmental Protection as "the State."
4 A-0065-13T1 TRC on September 11, 1985. The State brought a quiet title
action pursuant to N.J.S.A. 12:3-8 against the Township,
alleging it had claimed the property as tidelands and seeking to
restrain the Township from opening a recreation park there. We
granted leave to the Township to appeal from an order in which
the trial court ruled the State had properly defined and
asserted its claim as required by the Amendment.
We reverse the order in Lisowski, finding this disposition
is required by the Supreme Court's decisions in Dickinson,
supra, and City of Jersey City v. Tidelands Resource Council, 95
N.J. 100 (1983). We affirm the order in Delanco, based upon the
holdings in Dickinson and Jersey City and the principles
underlying our deference to administrative decisions as
exemplified by City of Newark v. Natural Resource Council in
Department of Environmental Protection 82 N.J. 530, cert.
denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980).
Although the tortured path to the delineation of the State's
tidal claims has been recounted elsewhere, the issues presented
here are best understood within their historical context.
I.
As the successor to the rights of the English sovereign,
the colony, and later, the State, of New Jersey became the owner
in fee simple of the tidelands, "'all lands that are flowed by
5 A-0065-13T1 the tide up to the high-water line or mark.'" City of Long
Branch v. Liu, 203 N.J. 464, 475 (2010) (quoting O'Neill v.
State Highway Dep't, 50 N.J. 307, 323 (1967)); see also Matthews
v. Bay Head Improv. Ass'n, 95 N.J. 306, 317-20, cert. denied,
469 U.S. 821, 105 S. Ct. 93, 83 L. Ed. 2d 39 (1984).2 The TRC is
vested with responsibility "for the stewardship of the State's
riparian lands." N.J.S.A. 12:3-12.1.
Because this doctrine applies to "all lands that have ever
been flowed by the tide," an uncertainty as to ownership endured
that was difficult to resolve because, as the Court recognized,
"it is often exceedingly difficult to determine whether a
particular parcel, now dry, was once tidal flowed." Gormley v.
2 The principle "that land covered by tidal waters belonged to the sovereign, but for the common use of all the people," Borough of Neptune City v. Borough of Avon-by-the-Sea, 61 N.J. 296, 303 (1972), has been traced to the Justinian Code, which held that
[b]y the law of nature the air, running water, the sea, and consequently the shores of the sea were common to mankind. No one was forbidden access to the sea, and everyone could use the seashore to dry his nets there, and haul them from the sea . . . . The seashore was not private property, but subject to the same law as the sea itself, and the sand or ground beneath it.
[Matthews, supra, 95 N.J. at 316-17 (alterations in original) (citations and internal quotation marks omitted).]
6 A-0065-13T1 Lan, 88 N.J. 26, 29 (1981) (emphasis added). Over the course of
two centuries, the State made no effort on a state-wide basis to
identify the tidelands it claimed and, consequently, "private
persons developed lands which arguably were state-owned."
Dickinson v. Fund for the Support of Free Pub. Sch., 187 N.J.
Super. 224, 227-28 (App. Div. 1982), aff'd in part and rev'd in
part, 95 N.J. 65 (1983).
While the State failed to act, the Township and the
Lisowskis were among the many who acquired title to property,
apparently unaware it was subject to the State's tidal claim.
The Lisowskis purchased their property in the 1950s from the
Borough of Avalon following a public auction, built a home and
have lived on the property year-round since 1991. The Township
alleged it owned the Dunes based upon a "final decree on Bill to
foreclose certificates of tax sale" dated March 16, 1944. The
Township used part of the property as a composting facility and
wanted to use the balance of the land as a recreational area.
O'Neill provides a stark example of the principle that the
acquisition of property in good faith, even with the State's
tacit approval, must yield to the State's dominant interest.
After taking title to property in the Hackensack Meadowlands in
1953, O'Neill entered into a contract to sell the property to
the State Highway Department. His widow later expended sums to
7 A-0065-13T1 clear the title so the sale could proceed and, in 1960,
delivered a deed and received the contract price from the
Highway Department. O'Neill, supra, 50 N.J. at 317-18. The
litigation commenced when the State claimed, after the sale,
that the property was tidelands and owned by the State. Id. at
314, 317. The trial court concluded that, although the State
had title to the property, it was estopped from asserting that
title because of the contract between the defendant highway
department and plaintiff. Id. at 314.
The Supreme Court reversed, observing, "It is settled that
the State's title in tidelands cannot be lost by adverse
possession or prescription" based upon the State's "delay or
inaction." Id. at 320-21; see also City of Newark, supra, 82
N.J. at 546 ("In the absence of any showing that a State officer
conscious of the State's interest stood by while the private
owner acted in reliance thereon, the State's failure to claim
tidally-flowed, interior meadowlands until the passage of Title
13 does not support an estoppel.")3
The case for preserving the State's claims against
forfeiture lay not only in a feudal assertion of dominion; it
3 Neither the Lisowskis nor the Township claim that their purchases of the property, decades ago, preclude the State from asserting its claim.
8 A-0065-13T1 was fortified by the mandate that all funds acquired through the
sale of riparian lands are committed to public education.
O'Neill, supra, 50 N.J. at 321-22; N.J.S.A. 18A:56-5 ("All lands
belonging to this State now or formerly lying under water are
dedicated to the support of public schools. All moneys
hereafter received from the sales of such lands shall be paid to
the board of trustees, and shall constitute a part of the
permanent school fund of the State.").4 The Court observed,
"[i]t would run against the thesis of the statute appropriating
tidelands to the school fund and as well the thesis of the
constitutional provision, to say that the State's title may be
lost by mere inaction." O'Neill, supra, 50 N.J. at 321-22.
Still, the Court urged the State to take action:
As a matter of good housekeeping, the appropriate officers of the State should do what is feasible to catalogue the State's far-flung holdings, but we cannot be indifferent to the difficulties involved, especially in ascertaining all the tidelands to which the State has clear or colorable title.
4 In O'Neill, the Court cited the predecessor statute, N.J.S.A. 18:10-5, noting that the statute had provided for the dedication of such fund for the support of public schools "at least since 1894 (c. 71, p. 123)," and that both the present Constitution, N.J. Const. art. VIII, § 4, ¶ 2, and the Constitution of 1844, N.J. Const. of 1844 art. IV, § VII, ¶ 6, did so as well. O'Neill, supra, 50 N.J. at 321. Title 18A was enacted as a revision of the law pertaining to education, effective January 11, 1968, L. 1967, c. 271, replacing Title 18.
9 A-0065-13T1 [Id. at 320.]
The legislative response was to enact Title 13, directing
the Resource Development Council, a predecessor to the TRC,5 "to
undertake title studies and surveys of meadowlands throughout
the State and to determine and certify those lands which it
finds are State owned lands." N.J.S.A. 13:1B-13.2 (emphasis
added). The Legislature gave explicit direction as to how that
process should be conducted, instructing the Council "shall take
into account" specific categories of source material, N.J.S.A.
13:1B-13.3,6 and establishing specific requirements for the
publication of the maps showing "those lands designated by the
council as State-owned lands." N.J.S.A. 13:1B-13.4. The
statute was also explicit as to filing requirements:
Copies of each such map and study shall be filed with the Secretary of State and sent to the clerk of each county or to the register of deeds and mortgages, whoever shall have the responsibility as the
5 The successors to the Resource Development Council were, first, the Natural Resource Council, N.J.S.A. 13:1D-3, and then the TRC, N.J.S.A. 13:1D-18.2. When we use "Council," we refer to the applicable entity. 6 The categories set forth in N.J.S.A. 13:1B-13.3 are: (1) "the mean high water line as established by the United States Coast and Geodetic Survey," (2) the nature of the meadowlands' vegetation, (3) "artificial changes in land or water elevation," and (4) such other "historical or scientific data which, in the opinion of the council, are relevant in determining whether a parcel of land is now or was formerly flowed by mean high tide."
10 A-0065-13T1 recording officer of the county, and to the governing body of each municipality whose political boundaries include lands shown on the map. Such maps and studies shall be available for public inspection.
[Ibid.]
In addition, the Council was required to publish "a list of
those parcels designated in whole or in part as State-owned
lands" at least once in a newspaper circulating in each affected
county. Ibid.
The methodology initially employed by the Council was
successfully challenged in 1971 and it was not until 1980 that
the Supreme Court approved the methodology subsequently adopted
as conforming to the requirements of Title 13. City of Newark,
supra, 82 N.J. at 537, 542. The mapping of the Hackensack
Meadowlands was to be completed within six months. Id. at 537,
540 n.2. The title surveys and determinations of the State's
interest "in meadowlands throughout the State,"7 were to be
completed by December 31, 1980.8 N.J.S.A. 13:1B-13.6. Neither
deadline was met. Dickinson, supra, 187 N.J. Super. at 229.
7 "Meadowlands" is defined in N.J.S.A. 13:1B-13.1(a) as "those lands, now or formerly consisting chiefly of salt water swamps, meadows, or marshes." 8 The original deadline of December 31, 1974, L. 1968, c. 404 § 92, was extended twice. Dickinson, 95 N.J. 65, 74-75 (1983).
11 A-0065-13T1 As a result, the uncertainty as to ownership continued to
pit the interests of private property owners against those of
the State. The Amendment was proposed to resolve these concerns
by providing a time limit, running from the time when the land
was last tidal flowed, in which the State was required to define
and assert its claim. Dickinson, supra, 95 N.J. at 76.
The proposed Amendment was met with a great deal of
resistance, including opposition from the administration, which
protested that the necessary mapping could not be completed in
the time allotted. Id. at 76-77. However, in the general
election of November 3, 1981, the public voted in favor of the
Amendment, which reads as follows:
No lands that were formerly tidal flowed, but which have not been tidal flowed at any time for a period of 40 years, shall be deemed riparian lands, or lands subject to a riparian claim, and the passage of that period shall be a good and sufficient bar to any such claim, unless during that period the State has specifically defined and asserted such a claim pursuant to law. This section shall apply to lands which have not been tidal flowed at any time during the 40 years immediately preceding adoption of this amendment with respect to any claim not specifically defined and asserted by the State within 1 year of the adoption of this amendment.
[N.J. Const., art. VIII, § 5, ¶ 1 (emphasis added).]
12 A-0065-13T1 Thus, for the first time, State inaction within the
specified time period would result in forfeiture of its claim to
tidal lands. The first deadline that would extinguish all
claims for lands that had not been tidally flowed for a period
of 40 years was November 2, 1982. It was estimated that 2452
square miles, or 29.9 percent of the state was subject to
investigation for potential claims by the State. Dickinson v.
Fund for Support of Free Pub. Sch., 187 N.J. Super. 320, 327
(Law Div.), rev'd, 187 N.J. Super. 224 (App. Div. 1982), aff'd
in part, rev'd in part, 95 N.J. 65 (1983).
The Office of Environmental Analysis (OEA) of the
Department of Environmental Protection (DEP) was responsible for
preparing the tidelands claims maps. Id. at 324. However,
while the Legislature had established arduous mapping procedures
for the State to follow regarding the meadowlands "to determine
and certify those lands which it finds are State owned lands"
pursuant to N.J.S.A. 13:1B-13.2,9 a vacuum existed as to what
action the State must take to "specifically define[] and
assert[] . . . a claim pursuant to law" to preserve a riparian
claim under the Amendment. Similarly, while Title 13 provided
9 The Title 13 mapping procedures were set forth in detail in the Law Division decision. Dickinson, supra, 187 N.J. Super. at 326-28.
13 A-0065-13T1 explicit instructions on the manner of notice the State had to
provide, N.J.S.A. 13:1B-13.4, no legislative action gave
guidance to the State as to how it must provide notice to
affected property owners. Dickinson, supra, 95 N.J. at 79-80.
There were two assumptions held by the plaintiffs and the
State in Dickinson. First, it was assumed the State had to
comply with Title 13 requirements for all tidelands claims.
Second, it was believed it would be impossible to do so before
November 2, 1982.10
With the November 1982 deadline looming, the Law Division
issued its opinion on July 8, 1982. Central to the
determination of what was required of the State to define its
tidelands claims was P-13, which depicted the areas subject to
investigation on 1632 base photomaps as squares or rectangles.
Dickinson, supra, 187 N.J. Super. at 327. Squares that were
fully colored represented maps that had either been delivered to
the TRC for adoption or were completed by OEA and in the process
of final preparation for delivery to the TRC. Ibid. There were
10 Indeed, we stated the definition of "meadowlands" in N.J.S.A. 13:1B-13.1(a) was construed to include all tidelands. Dickinson, supra, 187 N.J. Super. at 230. The Supreme Court did not share this interpretation, stating, "Title 13 required that the State examine only the meadowlands," and suggesting the State had unilaterally elected to take action beyond what was required when it "decided to investigate all tidal properties in which it might have an interest." Dickinson, supra, 95 N.J. at 75.
14 A-0065-13T1 also squares that were uncolored, which represented "areas to be
delineated for tidelands claims." Ibid.
The Law Division concluded that the State had fully
delineated claims as to areas covered by 767 photomaps. Id. at
340. These maps included 713 maps that had been prepared by OEA
and adopted by the TRC on June 9, 1982. Id. at 327-28. The
court found approximately 100 more maps would be available for
adoption by the TRC by the November 2, 1982 deadline, leaving
700 maps, or forty-seven percent of the area subject to
investigation, not delineated before the deadline. Id. at 328.
The court defined the actions that would serve to
"specifically define[] and assert[]" the remaining claims
"pursuant to law" and "fully delineate[ them] by December 31,
1985, ordering the following:
1. On or before November 2, 1982 the [TRC] will file a copy of P-13 with the Secretary of State, together with a copy of each base photomap (excluding those reflecting only uplands) that has not previously been filed with a scribed overlay and C.O.P.S.[11] in accordance with N.J.S.A. 13:1B-13.4.
2. Concurrent with such filing, the [TRC] will send copies of P-13 and the respective base photomaps to the clerks of the counties and governing bodies of the municipalities whose political boundaries include lands shown on such maps -- paralleling the
11 Claims Overlay Preparation Summary.
15 A-0065-13T1 distribution of published maps under N.J.S.A. 13:1B-13.4.
3. The action taken pursuant to paragraphs 1 and 2 above shall constitute compliance with Art. VIII, § 5, par. 1, of the 1947 Constitution of New Jersey, as amended, to specifically define and assert claims of the State, pursuant to law, as to lands formerly tide-flowed but not tidal flowed for 40 years prior to the amendment -- and within the one-year period provided in such amendment.
4. Notwithstanding the foregoing, all mapping, scribing, and C.O.P.S. preparation must be completed and [TRC] action taken in accordance with N.J.S.A. 13:1B-13.4 as to such claims no later than December 31, 1985.
[Id. at 340-41.]
The Appellate Division adhered to the Law Division's view
that compliance with Title 13 procedures was required, holding,
"unless superseded by another statute 'pursuant to law' in the
amendment means pursuant to" Title 13. Dickinson, supra, 187
N.J. Super. at 241. Measuring the adequacy of P-13 against
Title 13 standards, we parted company with the Law Division,
concluding "the filing of P-13 and the base maps cannot
constitute a specifically defined and asserted claim." Ibid.
We stated: "The record is clear beyond any doubt that vast areas
of P-13 will not ultimately, after accurate mapping, be the
subject of a state claim. P-13 and the photo base maps simply
show the area where the State may have a claim." Ibid. We
16 A-0065-13T1 emphasized that it was not our intention "to preclude the
Legislature from adopting a new statute replacing L. 1968, c.
404, or to forbid the introduction of new mapping techniques."
Id. at 243. However, in the absence of such legislative action,
we held the State's tideland property "claim must be specific as
to each property and must be prepared in accordance with the
procedures approved in [City of Newark], supra, 82 N.J. at 530."
Failure to do so would bar the claim. Ibid.
The Appellate Division decision was rendered on October 22,
1982, less than two weeks before the November 2, 1982 deadline.
With the matter before the Supreme Court after cross-petitions
for certification were granted, the parties entered into a
consent order, dated October 26, 1982, to govern "pending the
ultimate disposition" of the appeal, without prejudice to the
positions of any of the parties. Acknowledging certain
practical difficulties regarding the reproduction of P-13, the
order required the TRC to file a substitute document, P-13(S)
and "a copy of each base photomap (excluding those reflecting
only uplands) that has not previously been filed with a scribed
overly and Claims Overlay Preparation Summary" with the Court,
the Secretary of State and "the Clerks of the counties and
governing bodies of the municipalities whose political
17 A-0065-13T1 boundaries include lands shown on such maps" by November 2,
1982.
In a sharp departure from the conclusions drawn by this
court and the Law Division, as well as the assumptions of the
parties, the Supreme Court concluded the State was not required
to comply with Title 13 to preserve riparian claims from
extinguishment under the Amendment. The Court set forth several
reasons for its conclusions, which included the fundamental
difference between the objectives of Title 13 and the Amendment.
While Title 13 "delineated a methodology . . . to enable the
Council 'to determine and certify those lands which it finds are
State owned lands,'" Dickinson, supra, 95 N.J. at 78 (quoting
N.J.S.A. 13:1B-13.2), the Amendment merely called for a
procedure "in which the State proposes to assert a claim."
Ibid. The Court explained, "[d]etermination and certification
that lands are owned by the State call for more stringent
requisites than simply asserting a claim." Ibid.
The nature of the properties to be mapped also warranted a
distinction in the applicable standards. The Court observed
that studies of the meadowlands properties subject to Title 13
"may involve factors substantially different from those involved
in oceanfront properties." Ibid.
18 A-0065-13T1 The third point made by the Court was that, given their
disparate purposes, it was "obvious" that claims pursuant to the
Amendment "could be defined and asserted in ways different from
that prescribed in Title 13." Ibid. The Court stated it was
"self-evident" from Title 13's requirements that "the people's
intent was not that restrictive," and that the imposition of
Title 13 procedures would result in "an unnecessary impairment
of [the Council's] administrative flexibility." Id. at 78-79.
The Court noted that Title 13's requirements, including "the
preparation of a survey and publishing of a map, which must be
filed with the Secretary of State and sent to the clerk of each
county and municipality where the land is situated," ibid.
(citing N.J.S.A. 13:1B-13.4), was "consonant with the
legislative (Title 13) imperative that the State certify
ownership, a requirement that need not be satisfied under the
Amendment." Id. at 79. As a result, the delineation and notice
requirements under the Amendment are substantially less
stringent:
Descriptions of the land, whether in the form of a map or otherwise, notice to the landowners, the amount and nature of evidence necessary to make a claim under the Amendment -- all could justifiably differ from Title 13, particularly since the purposes of Title 13 and the Amendment are not identical. Restricting the Council to Title 13 procedures would be an unnecessary
19 A-0065-13T1 impairment of its administrative flexibility.
Moreover, the Court explicitly recognized that the
administrative flexibility afforded the Council encompassed the
authority to utilize a methodology untethered to Title 13
procedures. "That the Council generally employed the Title 13
procedures in non-meadowlands areas, a program initiated in
1973, long before the Legislature considered the proposed
Amendment, does not vitiate the Council's authority to utilize
another methodology." Ibid. (emphasis added). Even in the
absence of legislative action, the Council's authority includes
"the right to survey, map, and determine the boundaries of"
"lands that the State claims it owns." Id. at 79-80 (citing
N.J.S.A. 12:3-7, 12:3-10, 12:3-12, 13:1B-13, 13:1B-13.7)
(emphasis added).
Having dispatched the notion that the State was required to
comply with Title 13 procedures, the Court turned to the
question whether the mapping and notification procedures
followed had satisfied the delineation and notice requirements
that were constitutionally required, stating:
[W]e believe that where the State's mapping reached the point that it designated the place where the tide had flowed, as shown on its claim overlays, the Amendment's specific delineation requirement has been met. We
20 A-0065-13T1 respect this administrative judgment of the Council. See [City of Newark], supra, 82 N.J. at 539-40. Unquestionably the Council has acted in good faith by making claims for which it has a reasonable basis.
. . . .
We are satisfied that the State has "asserted" as well as "specifically defined" its riparian claims. The public has been given notice of the State's claims. The claimed areas are shown on P-13 and the base photomaps with the claim overlays. All have been filed with the Secretary of State and county and municipal clerks.
[Id. at 84 (emphasis added).]
Jersey City, decided the same day as Dickinson, also
concerned challenges to certain tidelands claims, premised on
the assumption that Title 13 applied. Among the alleged
deficiencies was "the State's failure to file the maps with the
Secretary of State, keepers of county land records, and
municipal clerks, as required by N.J.S.A. 13:1B-13.4." Jersey
City, supra, 95 N.J. at 102. The Court disposed of this
argument, stating, "We have held this day in Dickinson that the
State specifically defined and asserted its claims to those
lands for which it had prepared and published base photomaps
with claim overlays that it filed with the appropriate
governmental offices. No more than that is mandated by the
Amendment." Id. at 104 (citing Dickinson, supra, 95 N.J. at
84).
21 A-0065-13T1 In sum, the following is derived from the Court's opinions
and informs our analysis. Although the Supreme Court broadly
described the constitutional imperatives, it did not define with
particularity a procedure that was constitutionally required.
However, the Court held compliance with Title 13 procedures was
not required and that the State had satisfied constitutional
requirements as to claimed areas shown on P-13 and base
photomaps with claim overlays. Further, the Court repeatedly
acknowledged that the exercise of administrative authority in
this context is entitled to deference.
II.
It is undisputed that the Lisowskis' property is part of
Map 084-1974, the Oldman Creek Map, which was among the 713 maps
listed in the TRC's minutes for May 27, 1982 as approved for
publication that day, and among the colored squares on P-13.
In December 2005, the Lisowskis applied for a "Statement of
No Interest" with the TRC seeking a declaration that the State
had no interest in the land. The State responded, approximately
two years later, denying their application and asserting a
tidelands claim to nearly one hundred percent of their land.
Plaintiffs filed a quiet title action, alleging the TRC had
22 A-0065-13T1 failed to timely assert a tideland claim against their property
as required by the Amendment.12
Plaintiffs conceded the map had been timely filed with the
Secretary of State, but argued the State failed to timely file
the map with either Cape May County or the Borough of Avalon
because the County's copy bore a date stamp of December 14,
1982, and the Borough did not have the map in its possession.
The State was unable to produce receipts from its files to
demonstrate the timely filing of the maps with the County and
the Borough and relied upon circumstantial evidence to support
its contention that the maps had been timely filed with the
applicable counties and municipalities.13 In addition, the State
argued that it was not required to file the maps with the County
and Borough; that filing with the Secretary of State was
sufficient.
Cross-motions for summary judgment were filed. Citing
Dickinson, the trial judge initially ruled that the State had
12 In the first count of their complaint, the Lisowskis alleged the Borough breached the covenant of warranty in the property deed. In July 2013, the parties entered into a consent order that dismissed this count without prejudice. 13 The records in both Lisowski and Delanco reveal deficiencies in the State's recordkeeping and that, in the absence of any legislative directive, the counties and municipalities did not accept and maintain the maps in a uniform and reliably accessible manner.
23 A-0065-13T1 properly asserted its claim, despite the fact the State could
not produce direct evidence the Oldman Creek Map had been filed
in the Borough or that it had been filed with the County before
December 14, 1982.
Plaintiffs and the State filed cross-motions for
reconsideration. Citing Dickinson, and Jersey City, plaintiffs
argued the State was required to file the map with both the
County and the Borough and failed to do so. The State asked the
court to reconsider its finding that there had been no timely
filing with the County, presenting a newspaper article that
reported the widespread nervousness and confusion of property
owners in response to the County's receipt of the tideland claim
maps on May 28, 1982.
The trial court vacated its prior order, granted
plaintiffs' motions for reconsideration and summary judgment,
and denied the TRC's motion for reconsideration. The State
filed a second motion for reconsideration, supported by
additional circumstantial evidence, including a June 1982
article from the New York Times describing practical
difficulties posed to the clerk's office by the receipt of the
maps and minutes from the June 24, 1982 TRC meeting which noted
continued discussion "concerning the paper copies of the
tidelands maps which have been delivered to 13 counties and 194
24 A-0065-13T1 municipalities." The trial court found the evidence presented
failed to prove the specific map in question was timely filed
and denied the State's motion for reconsideration.
In its appeal, the State argues that Dickinson constitutes
binding precedent that its assertion of its tidal claim
satisfied the Amendment; that it is only required to file a
tidelands claims map with the Secretary of State; and that the
proofs support the conclusion that the Oldman Creek Map was
filed in the County and Borough. In the alternative, the State
requests a remand. The Lisowskis argue the trial judge
correctly ruled the State was required to file the map with the
County and Borough in addition to the Secretary of State and
that the State failed to provide sufficient proof of filing.
The Lisowskis also argue Dickinson does not dispose of this
issue and that a remand is inappropriate.
In reviewing a summary judgment decision, we apply the same
standard as the trial court. Murray v. Plainfield Rescue Squad,
210 N.J. 581, 584 (2012). Viewing the evidence "in the light
most favorable to the non-moving party," we determine "if there
is a genuine issue as to any material fact or whether the moving
party is entitled to judgment as a matter of law." Rowe v.
Mazel Thirty, LLC, 209 N.J. 35, 38, 41 (2012) (citing Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 529 (1995)). We
25 A-0065-13T1 review questions of law de novo, State v. Gandhi, 201 N.J. 161,
176 (2010), and need not accept the trial court's conclusions of
law. Davis v. Devereux Found., 209 N.J. 269, 286 (2012).
In this case, the factual issue of whether the Oldman Creek
Map was timely filed with the County and Borough was resolved by
the Court's holding in Dickinson. Although the Court did not
detail evidence to support its conclusion, its holding does not
suffer from ambiguity:
The claimed areas are shown on P-13 and the base photomaps with the claim overlays. All have been filed with the Secretary of State and county and municipal clerks.
[Dickinson, supra, 95 N.J. at 84.]
The meaning of the holding was emphasized by the decision
it rendered the same day in Jersey City:
We have held this day in Dickinson that the State specifically defined and asserted its claims to those lands for which it had prepared and published base photomaps with claim overlays that it filed with the appropriate governmental offices.
[Jersey City, supra, 95 N.J. at 104.]
The Lisowskis and amicus argue that this holding is not
binding here because the elements of res judicata have not been
met. We disagree.
In Dickinson, the Court declared it was addressing "the
meaning and constitutionality" of the Amendment. Id. at 70. In
26 A-0065-13T1 its consideration of the meaning of the Amendment's requirement
that the State specifically define and assert its claim, the
Court reviewed what the State had done and not done to
investigate the properties identified in the squares depicted on
P-13. The Court agreed with that part of the Appellate
Division's decision that stated "specific delineation . . . on a
property-by-property basis" was required for a claim to be made
in good faith. Id. at 83 (quoting Dickinson, supra, 187 N.J.
Super. at 242-43). The Court concluded, "where the State's
mapping reached the point that it designated the place where the
tide had flowed, as shown on its claim overlays, the Amendment's
specific delineation requirement [had] been met" and the
administrative judgment of the Council warranted the Court's
respect. Id. at 84.
As we have noted, the Lisowskis do not dispute that their
property lies within one of the colored squares on P-13 that the
Court found had been adequately delineated. Yet, they contend
the second component of the Court's holding as to those colored
squares -- that the State sufficiently asserted its claim --
does not preclude their argument that the State failed to do so
as to their property.
It is true the Court did not detail the State's efforts on
a property-by-property basis to file with the appropriate county
27 A-0065-13T1 and municipality. However, as part of its review of the
procedural history, the Court noted the parties entered into a
consent order pending disposition, which required the State to
follow the filing requirements set forth in the Law Division
order. Id. at 73. Those requirements were to be satisfied by
November 2, 1982. The case was argued before the Supreme Court
on September 12, 1983 and decided on December 21, 1983. This
was a vigorously litigated case. We have no doubt that, if the
State failed to follow the dictates of the consent order, that
issue would have been raised and more fully discussed in the
Court's decision. It is implicit in the Court's statement, "All
have been filed with the Secretary of State and county and
municipal clerks," id. at 84, and its characterization of its
conclusion as a holding, id. at 90; Jersey City, supra, 95 N.J.
at 104, that the Court was satisfied the State had complied with
the consent order as to all properties that were sufficiently
delineated on P-13.
Collateral estoppel, or issue preclusion, bars the
relitigation of an issue that has been addressed in a prior
matter, if
(1) the issue to be precluded is identical to the issue decided in the prior proceeding; (2) the issue was actually litigated in the prior proceeding; (3) the court in the prior proceeding issued a final judgment on the merits; (4) the
28 A-0065-13T1 determination of the issue was essential to the prior judgment; and (5) the party against whom the doctrine is asserted was a party to or in privity with a party to the earlier proceeding.
[First Union Nat'l Bank v. Penn Salem Marina, Inc., 190 N.J. 342, 352 (2007) (citation and quotation marks omitted).]
Finding these elements are satisfied here, we hold
Dickinson establishes that the State timely preserved its
riparian claim to the Lisowski property by filing the Oldman
Creek Map with the Secretary of State, the County and the
Borough. The trial judge was not free to reach a contrary
result. See Reinauer Realty Corp. v. Borough of Paramus, 34
N.J. 406, 415 (1961); Crespo v. Crespo, 408 N.J. Super. 25, 36-
37 (App. Div. 2009), aff'd, 201 N.J. 207 (2010); Petrusky v.
Maxfli Dunlop Sports Corp., 342 N.J. Super. 77, 81 (App. Div.),
certif. denied, 170 N.J. 388 (2001). Accordingly, we reverse
the order granting summary judgment to the Lisowskis and remand
this matter for the entry of summary judgment in favor of the
State.
III.
The State's tidelands claim of the Dunes, the property at
issue in Delanco, is included on Map 448-1920. Because this map
was not adopted by the TRC until September 11, 1985, it was not
among those explicitly approved by the Supreme Court in
29 A-0065-13T1 Dickinson. The Township argues the State failed to properly
delineate its tidelands claim and failed to prove it provided
adequate notice of its claim. The trial judge rejected the
Township's arguments and, in a written opinion, found the State
had met its burden regarding both the delineation and assertion
of its claim. We agree.
A.
We first turn to the argument that the State failed to
properly delineate its claim. The Township argues that, to
satisfy its constitutional obligation, the TRC was required to
follow a specific procedure set forth in a 1987 OEA report. The
Township further contends that, as a result of this failure, the
TRC based the claim upon an erroneous source selection,
improperly included vegetation and marsh areas in the claim, and
improperly delineated the claim.
The protocol the Township relies upon is set forth in a
1987 report by Richard Castagna, a supervisor in the OEA,
titled, "The Tidelands Mapping Process" (the Castagna Report).
The Report describes the "24 step procedure followed by the OEA
when mapping tidelands." Although she was critical of the
Castagna Report in some respects, the Township's expert witness,
Jo Ann Cubberley, agreed the Castagna Report was an accurate
representation of the tidelands mapping process. The Township
30 A-0065-13T1 contends the State was required to comply with the procedure
outlined in the Castagna Report to satisfy its constitutional
obligation. We disagree.
The alleged deficiency concerns the second step of the
twenty-four step procedure, which addresses the selection of a
source for the mapping process. A source is chosen after all
available source materials, including aerial photographs,
historic maps, and charts from the files of the Bureau of
Tidelands Management (Bureau), along with maps from outside
sources, have been obtained and a log book is created to track
the analysis of each source. According to the Castagna Report,
the analyst reviews the collected sources "in chronological
order, beginning with the most recent materials and ending with
the oldest (earliest) sources" to determine the "natural or
artificial (man-altered) status of an area." Section 2(B) of
the procedure states:
For each area subject to analysis, a specific source is chosen for the delineation of the State's tidelands claim. The most recent . . . source is used if source analysis does not demonstrate artificial change, i.e., filling or dredging. If source analysis does demonstrate artificial change, an approved source which predates that change is chosen by chronologically examining all approved sources beginning with the most recent materials. When that examination yields the latest source prior to artificial change, that source is used for delineation.
31 A-0065-13T1 [(emphasis added).]
The Castagna Report also explained that the latest source
prior to filling or dredging was not used on occasion "because
not all surveys, maps and charts that are examined meet certain
delineation standards." When a source material fails to meet
enumerated criteria or is rejected "because of shadow,
vegetation, canopy overhang, etc., which may obstruct the
[analyst's] view of details," the analyst may use "either
earlier or later sources clearly depicting those portions" for
consultation and delineation. In addition to following these
steps, the procedure states that for maps prepared after the
Amendment, "the latest source which shows the least alteration
within the latest 40-year period is selected for delineation."
Any rejected source was "considered to be of collateral value in
that it may provide additional support and/or clarification for
delineations derived from approved sources."
Steps 17, 18 and 19 of the twenty-four step procedure call
for reviews by the analyst's immediate supervisor, the
supervising environmental specialist, and the chief of the
group, before the base photomap is sent to the contractor for
scribing, "to ensure that all delineation rules have been
followed." During the supervisor's review, "[a]ll sources for
the map being reviewed" are forwarded to the supervisor. Step
32 A-0065-13T1 17(B) states, "The supervisor enters review approvals in the log
book along with any changes to be made to the [a]nalyst's
delineation and with all reasons for such change."
The Township and State agree to the following. The Dunes
property was artificially filled and the 1956 aerial photography
showed the first evidence of artificial change. The most recent
source prior to the 1956 photographs was aerial photographs
taken in February and April 1951. If those photographs were
properly rejected, photographs from 1946 constituted the next
available source.
The Township contends that, pursuant to the procedure
outlined in the Castagna Report, the April 1951 photographs
should have been the source relied upon in delineating the
tidelands claim. The State maintains that the OEA analyst for
the Dunes Map, Michael Claffey, correctly selected aerial
photographs from March 12, 1946, as the source for delineation.
The analyst's log book acknowledged there was aerial
photography available from 1951, but rejected it as a source
because "[t]he 1951 PAN[14] is not a clear product and is covered
by ice." In rejecting these photographs, the log book did not
differentiate between photographs taken in April 1951, which did
not have ice, and photographs taken in February 1951. Pursuant
14 "PAN" refers to the panchromatic photographs.
33 A-0065-13T1 to the procedure outlined in the Castagna Report, Claffey's log
book and selections were reviewed and approved by three
supervisors: Castagna, another "principal environmental
specialist," and the supervisor of the group.
Both the State and the Township presented expert testimony
to support their arguments.
At trial, Castagna acknowledged that neither his report nor
the logbook differentiated between the two 1951 sources.
However, he testified both would have been properly rejected.
He explained that two of the three April frames depicted the
Dunes in the extreme corners of the photographs, making the
images blurry. Therefore, the April 1951 photographs could not
be used for a stereographic analysis because two clear pictures
were needed. In contrast, the 1946 aerial photographs yielded
two quality frames and clearly depicted the property.
Cubberley, the Township's expert, was the former Chief of
the Bureau and the Deputy Manager of OEA. She disagreed with
the tidelands delineation on the Dunes map and opined that OEA
had failed to follow its own protocol in the selection of the
1946 photography as the source for its delineation. She
conceded the 1946 photography was appropriate for one portion of
the watercourse delineation, but opined the 1951 photographs
should have been used for the other two watercourses and the
34 A-0065-13T1 shoreline. She stated that, as a result of the improper source
selection and erroneous assumptions made by the analyst, large
areas were improperly included in the delineation.
Cubberley also alleged that tide mudflats were claimed in a
manner not in accord with the rules at the time. At trial,
Cubberley admitted there were no written directives prohibiting
the claiming of mudflats while delineating the tidelands claims.
In fact, the State produced evidence showing Cubberley had
approved delineations that included mudflats. Castagna opined
that mudflats could be identified using panchromatic photographs
and that the analyst properly identified same consistent with
the PAN-1 key.15
In her written opinion, the trial judge carefully reviewed
the testimony provided by each of the experts and her own
examination of the photographs under a stereographic microscope.
She found that Cubberley's selection of the 1951 photographs as
source material was "based on an inferior process." Based upon
her own review of the 1951 photographs and the expert testimony,
the trial judge found, "it is more likely than not that the 1946
15 "PAN-1 key" refers to an OEA document, titled "Tidelands Delineation Key, Identification of Tidal Watercourses from Panchromatic Photography," which analysts were instructed to use to assist them in identifying natural tidal watercourses and artificially altered natural watercourses.
35 A-0065-13T1 frames were the proper selected source to use to delineate this
area."
The trial judge also made findings regarding the
conflicting testimony on the delineation process and the
inclusion of mudflats in the claim. She found the State had
shown by a preponderance of the evidence that it had properly
delineated its claim.
The Township also argues that reversal is required because
the trial judge erred in reaching these conclusions,
specifically challenging her factual findings. We reject this
argument because the trial judge's findings are supported by
"adequate, substantial and credible evicence," Town of Kearny v.
Brandt, 214 N.J. 76, 92 (2013) (citation and internal quotation
marks omitted), and were evidently influenced by her ability to
assess the credibility of the witnesses, State v. Johnson, 42
N.J. 146, 161 (1964). They are entitled to our deference.
The issue whether the procedure followed here satisfied the
State's constitutional obligation is a legal question which we
review de novo. Zabilowicz v. Kelsey, 200 N.J. 507, 512-13
(2009). We have a limited role in reviewing the actions of
administrative agencies. Aqua Beach Condo. Ass'n v. Dep't of
Cmty. Affairs, 186 N.J. 5, 15-16 (2006). "'[T]he fundamental
consideration is that a court may not substitute its judgment
36 A-0065-13T1 for the expertise of an agency so long as that action is
statutorily authorized and not otherwise defective because
arbitrary or unreasonable.'" Ibid. (quoting Williams v. Dep't
of Human Servs., 116 N.J. 102, 107 (1989)).
City of Newark involved a challenge to maps that, unlike
this case, were adopted by the Natural Resource Council (NRC)
under Title 13. City of Newark, supra, 82 N.J. at 534-35. The
appellants sought to invalidate thirty-six Hackensack
Meadowlands base maps with claims overlays and a Newark-
Elizabeth base map with its claims overlay on the ground that
the NRC failed to comply with the requirements established by
the Legislature in N.J.S.A. 13:1B-13.3. Id. at 537-38. Two of
the arguments parallel challenges in this case. The appellants
contended the NRC did not comply with the Legislature's
requirement that it "take into account" four categories of
source material specified in N.J.S.A. 13:1B-13.3, ibid., and
also found fault with the NRC's methodology in analyzing the
data. Id. at 538-39.
At the outset, the Court noted "the strong presumption of
reasonableness that an appellate court must accord an
administrative agency's exercise of statutorily delegated
responsibility." Id. at 539. The Court reviewed principles
that remain applicable today. See Lavezzi v. State, 219 N.J.
37 A-0065-13T1 163, 171-72 (2014); State (Div. of State Police) v. N.J. State
Trooper Captains Ass'n, 441 N.J. Super. 55, 61-62 (App. Div.
2015). "[C]ourts are not free to substitute their judgment as
to the wisdom of a particular administrative action for that of
the agency so long as that action is statutorily authorized and
not otherwise defective because arbitrary or unreasonable."
City of Newark, supra, 82 N.J. at 539 (quoting N.J. Guild of
Hearing Aid Dispensers v. Long, 75 N.J. 544, 562-63 (1978)).
If there is any fair argument in support of the course taken [by the agency] or any reasonable ground for difference of opinion among intelligent and conscientious officials, the decision is conclusively legislative, and will not be disturbed unless patently corrupt, arbitrary or illegal.
[82 N.J. at 539-40 (alteration in original) (quoting Flanagan v. Civil Serv. Dep't, 29 N.J. 1, 12 (1959)).]
The Court further observed that the presumption of
reasonableness "is even stronger here as the agency has been
delegated discretion to determine the specialized and technical
procedures for its tasks." Id. at 540.
Notwithstanding the specific requirements of Title 13, the
Court stated N.J.S.A. 13:1B-13.3 vested "[b]road discretion
. . . in the NRC," and that the NRC had "exercised its delegated
discretion in choosing not to incorporate some historical
materials." Id. at 540-41. NRC's consideration of materials
38 A-0065-13T1 identified in the statute was sufficient to "take [them] into
account," even though the NRC ultimately determined not to rely
upon them. Ibid. The Court concluded, "[T]he evidence adduced
indicates only a difference of opinion between the appellants'
and the NRC's experts." Id. at 541. Finding genuinely
debatable issues regarding the NRC's exercise of its discretion,
the Court affirmed the Appellate Division's determination that
"the NRC's maps represent a reasonable implementation of the
duty mandated in N.J.S.A. 13:1B-13.2 and 13:1B-13.3." Id. at
541-42.
Two salient points in the Court's analysis in Dickinson
were its recognition that the Council's administrative authority
to define and assert its claim should not be unduly restricted
and its conclusion that the imposition of Title 13 requirements
would do so. Dickinson, supra, 95 N.J. at 78-79. As in City of
Newark, supra, 82 N.J. at 540, the TRC was tasked with
implementing "specialized and technical procedures." Unlike
that case, however, there were no legislative mandates to govern
the procedure it followed. It is an ineluctable conclusion that
the TRC's discretion in implementing its own procedures can be
no less broad than the NRC's discretion in implementing
legislative requirements. The evidence here similarly reveals
"only a difference of opinion" between experts. See id. at 541.
39 A-0065-13T1 The TRC's determination is therefore entitled to our deference
and will not be disturbed.
B.
We next turn to the Township's argument that the State
failed to prove it had timely provided notice of its claim. The
State filed the map with the Secretary of State on December 12,
1985, as shown by a stamped receipt retained by the Bureau.
Although a copy of the map was also on file at the County, there
was no stamp indicating when the map was filed. There was also
no signed receipt for delivery to the Township. The State
argues that filing with the Secretary of State satisfies its
burden to provide notice. We need not examine the parameters of
the notice necessary to satisfy the Amendment16 because we
conclude the trial judge's determination that the State provided
notice to the County and the Township was supported by
16 We note the State has launched several online tools to assist members of the public in determining whether certain property is in an area that is the subject of a tidelands claim. See State of New Jersey, Department of Environmental Protection, Division of Land Use Regulation, Before you Buy, Before you Build, http://www.nj.gov/dep/landuse/bybob.html (last updated July 6, 2015); State of New Jersey, Department of Environmental Protection, Bureau of GIS, NJ-GeoWeb, http://www.nj.gov/dep/gis/geowebsplash.htm (last updated July 20, 2015); State of New Jersey, Department of Environmental Protection, Division of Land Use Regulations, Tidelands, http://www.nj.gov/dep/landuse/tl_main.html (last updated July 30, 2015).
40 A-0065-13T1 sufficient credible evidence in the record. See Kearny, supra,
214 N.J. at 92.
The trial judge cited the following evidence to support her
conclusion the State properly asserted its claim. The base map
and overlay was filed with the Secretary of State on December
12, 1985. There was a copy of the base map and overlay "on file
with the County" that did not have a date stamp reflecting when
it was received. Although there was no record of the Township's
receipt, the Township passed resolution 1986-32 on June 23,
1986, authorizing the Delanco Sewage Authority to apply for a
riparian grant to use portions of the Dunes. The application
for this grant contained a map with the same tidelands claim
line that appears on Map 448-1920. The trial judge reasoned
that the Township's reliance upon the map demonstrated it "had
the map showing the claims within a year of its filing with the
Secretary of State." The judge also found credible the rather
extraordinary testimony of Nicholas Morgan, who, before his
retirement, worked at the Bureau. Morgan testified he
specifically remembered delivering maps to the Township of
Delanco on Monday, November 18, 1985. The specificity of this
recollection could justifiably be met with skepticism. However,
Morgan was also able to testify as to the exact start and end
dates, including the day of the week, for each job he held from
41 A-0065-13T1 1967 through his retirement in 2011. The judge stated, "His
memory of dates and days of the week is exceptional among
people, but in saying this, the court also had the ability to
observe his demeanor and concludes he was credible."
As the Township acknowledges, the State was required to
prove it provided notice by a preponderance of the evidence.
See Liberty Mut. Ins. Co. v. Land, 186 N.J. 163, 169 (2006).
This standard requires proof "that a desired inference is more
probable than not. If the evidence is in equipoise, the burden
has not been met." Ibid. (quoting Biunno, Current N.J. Rules of
Evidence, comment 5a on N.J.R.E. 101(b)(1) (2005)). The judge's
determination here that the State met this burden was supported
by sufficient, credible evidence in the record and is entitled
to our deference. We therefore affirm the trial judge's
decision that the State properly delineated and asserted its
claim in compliance with the requirements of the Amendment.
We reverse the order granting summary judgment in Lisowski
and remand for entry of summary judgment in favor of the State.
We affirm the Delanco court's order memorializing its findings
that the State properly defined and asserted its claim on Map
448-1920.
42 A-0065-13T1
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Cite This Page — Counsel Stack
122 A.3d 1004, 442 N.J. Super. 304, Counsel Stack Legal Research, https://law.counselstack.com/opinion/william-w-lisowski-v-borough-of-avalon-and-njsuperctappdiv-2015.