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Dickinson v. Fund for Support of Free Public Schools

Decided: July 8, 1982.

FAIRLEIGH S. DICKINSON, JR., RAYMOND BATEMAN, INDIVIDUALLY AND AS GUARDIAN AD LITEM OF MICHAEL BATEMAN, WAYNE DUMONT, JEREMIAH O'CONNOR, J. HERBERT LEVERETT, INDIVIDUALLY AND AS GUARDIAN AD LITEM OF DWAYNE HERBERT LEVERETT, MARGARET KELLER, CHARLES ROHDE, PLAINTIFFS,
v.
THE FUND FOR THE SUPPORT OF FREE PUBLIC SCHOOLS, DONALD LAN, SECRETARY OF STATE, OF THE STATE OF NEW JERSEY, ACTING AS SECRETARY OF STATE AND AS SECRETARY OF THE FUND FOR THE SUPPORT OF FREE PUBLIC SCHOOLS AND DONALD LAN AS TRUSTEE OF THE FUND FOR THE TIDELANDS RESOURCE COUNCIL, A DIVISION OF THE NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, DEFENDANTS



Simpson, A.j.s.c.

Simpson

This case involves the validity and interpretation of an amendment to the New Jersey Constitution approved by the voters, by a vote of 864,445 in favor and 756,220 opposed, on November 3, 1981. The amendment, N.J. Const. (1947), Art. VIII, § 5, par. 1, provides:

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.

As a result of litigation reported in Gormley v. Lan, 181 N.J. Super. 7 (App.Div.1981), aff'd 88 N.J. 26 (1981), and pursuant to N.J.S.A. 19:3-6, the public question and amendment were accompanied on the ballot by the following interpretive statement:

The primary purpose of this amendment is to relieve owners of land from certain competing claims of ownership by the State. These claims arise from the fact that the State may own any land that ever had the ordinary high tide ("mean" high tide) flow over it, regardless of who the record owner may be or how long he has occupied the land. Sometimes it is difficult to determine that fact and owners may be uncertain for years if the State has a claim to the land.

When the State establishes ownership of tidal flowed land, any proceeds from the sale of the land are deposited in a fund devoted to public education.

This amendment provides that if the State does not, within one year, present all claims on lands that have been "dry" for at least 40 years, those claims are barred. The State may have claims for such land that would succeed under present law but that may be extinguished by virtue of this amendment, if for any reason the State does not assert such claims within that one year.

Prior to the election plaintiffs commenced this action challenging the validity of the then proposed amendment and seeking to enjoin the publication and processing of the referendum question. Injunctive relief was denied and there was no appeal therefrom. Since the amendment was approved, plaintiffs proceeded to trial, challenging the validity thereof on state and federal constitutional grounds and alternatively seeking relief in the nature of mandamus to compel the "expeditious" mapping and approval of maps of all tidelands areas. Discovery, briefing and the trial were expedited since the heart of the controversy concerns the one-year deadline (or November 2, 1982) by which time the State must have "specifically defined and asserted . . . pursuant to law" all claims to riparian lands not tide-flowed for 40 years. As the interpretive statement to the amendment, drafted by the New Jersey Supreme Court,*fn1 indicates, claims for such lands may be extinguished if the State does not "present" or "assert" them within the one-year period. The operative facts needed to dispose of this case are not in dispute and are determined from extensive stipulations, exhibits marked into evidence without objection, the uncontroverted testimony of Roland S. Yunghans and some findings following the assertion of propositions of fact and their contradictories.

I. Background

The history of state ownership of riparian or tide-flowed lands was reviewed by Judge Goldmann in Schultz v. Wilson, 44 N.J. Super. 591 (App.Div.1957). In O'Neill v. State Hwy. Dept., 50 N.J. 307 (1967), the New Jersey Supreme Court held that the State owns in fee simple all lands flowed by the tide up to the mean high water line, and such title cannot be lost by estoppel, adverse possession or prescription. In this same opinion Chief Justice Weintraub said that as a matter of good housekeeping the State should do what is "feasible" to catalog its tidelands' holdings, but noted the difficulties involved. In response thereto, as noted by Justice Schreiber in Newark v. Natural Resource Council, etc., 82 N.J. 530, 534 (1980), cert. den. 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980), the Legislature directed title studies and surveys of the State's meadowlands to determine what portions were state-owned.*fn2

N.J.S.A. 13:1B-13.2 set priorities for the work, with the Hackensack Meadowlands to be the first survey, and subsequent sections of L. 1968, c. 404, specified methods and procedures for certification of state-owned lands and publication of maps "clearly indicating" state-owned lands. The Supreme Court's opinion in the Newark case was issued May 15, 1980; thus, it was not until that date that the extremely complex tidal-mapping programs and procedures received final approval against legal sufficiency and reasonableness challenges. Using current statutory titles, the mapping and conveyancing procedures as to tidelands may be summarized as follows:

1. Preparation of maps by the Office of Environmental Analysis (O.E.A.) of the Department of Environmental Protection (N.J.S.A. 13:1D-1 et seq.).

2. Approval and publication of maps, pursuant to N.J.S.A. 13:1B-13.4 by the Tidelands Resource Council (T.R.C.).

3. Review by the T.R.C. of objections by aggrieved persons as to title, pursuant to N.J.S.A. 13:1B-13.5(a).

4. Aggrieved persons alternatively may immediately commence quiet title actions pursuant to N.J.S.A. 13:1B-13.5(b).

5. T.R.C. review of applications for riparian conveyances and recommendations, pursuant to N.J.S.A. 13:1B-13.8 and 13.9.

6. Approval of riparian leases and grants by the T.R.C., Commissioner of Environmental Protection, and the Governor, pursuant to N.J.S.A. 13:1B-13.

7. Payment of the net proceeds of all sales and leases of riparian lands to the Fund for the Support of Free Public Schools (hereinafter the "Fund") pursuant to N.J.S.A. 13:1B-13.13.

The status of the Fund was summarized in Garrett v. State, 118 N.J. Super. 594 (Ch.Div.1972), as follows:

Under both the Constitution of 1844, Art. IV, § VII, par. 6, and the Constitution of 1947, Art. VIII, § IV, par. 2, the Fund for the Support of Free Public Schools and all money, stock, and other property appropriated for that purpose has been declared to be a perpetual fund. [at 599]

N.J.S.A. 18A:56-5 provides, with the last sentence added by L. 1980, c. 72, § 3, eff. July 16, 1980:

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 this State. To the extent that moneys received from the sales of these lands may, by law, be made payable to any purposes other than the school fund, these moneys shall not be paid to other purposes so long as there is a deficiency in the school bond reserve.

The second sentence of Art. VIII, § IV, par. 2, of the 1947 Constitution authorized the Fund to invest in school district bonds and also to secure school bonds as the Legislature may provide. The Legislature, by N.J.S.A. 18A:56-17 et seq., has provided a school bond reserve within the Fund of at least 1 1/2%, generally, of aggregate school district bonded indebtedness in the State.

II. Mapping Progress

From the stipulations, and uncontroverted testimony of Roland S. Yungans, Chief of the O.E.A. in the Department of Environmental Protection, I find the following significant facts:

1. O.E.A. is responsible for mapping for the T.R.C. the State's claims to all lands now or formerly flowed by mean high tide.

2. Following suppression of the so-called "Gray and White" map,*fn3 O.E.A. developed a four-part methodology to map the State's claims using (a) old maps, (b) aerial photography, (c) tidal data and (d) some surveys -- which was approved by the Supreme Court for N.J.S.A. 13:1B-13.2 and 13.3 purposes on May 15, 1980.*fn4

3. An accelerated tidelands delineation program, whereby the cataloging of all the State's tidelands will be completed by O.E.A. by December 31, 1985, has been in effect since approval in June 1978 by then Commissioner of Environmental Protection (now Justice) O'Hern. This was the most efficient and cost-effective of four proposals and also had the shortest program length.

4. Further increased funding and staffing for O.E.A. would not advance the December 31, 1985 completion date for the full state ...


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