On certification to the Superior Court, Appellate Division, whose opinion is reported at 187 N.J. Super. 224 (1982).
For reversal in part; affirmance in part -- Chief Justice Wilentz, and Justices Clifford, Schreiber, Pollock, O'Hern and Garibaldi. Dissenting in part -- Justice Handler. The opinion of the Court was delivered by Schreiber, J. Handler, J., dissenting in part.
This case concerns the meaning and constitutionality of the November 3, 1981 amendment to the New Jersey Constitution adopted on November 3, 1981, N.J. Const. of 1947, art. VIII, § 5, para. 1 (the "Amendment"), which created in effect a statute of limitations on State claims to New Jersey tidelands. The Amendment bars the State's claims to lands that have not been tidally flowed for a period of 40 years unless the State has "specifically defined and asserted" its claims within that period. As to lands not tidally flowed during the 40 years or more before adoption of the Amendment, the State has an additional year specifically to define and assert its claim.
The ten plaintiffs, all New Jersey residents, include landowners, taxpayers, a public school teacher, two public school students, an owner of a bond issued by a New Jersey school district, and a purchaser of a riparian grant from the State. The
defendants are the Tidelands Resource Council (the "Council"),*fn1 the Fund for the Support of Free Public Schools and the trustees of the Fund. The complaint charged: (1) that the Amendment was invalid because it purported to convey title to certain riparian lands to upland owners without consideration to the State, thereby violating the federal and state Constitutions; (2) that the Amendment deprived the trustees and beneficiaries of the Fund of property without due process and just compensation in violation of the Fifth and Fourteenth Amendments to the United States Constitution; (3) that because the State will not be able to map all the riparian lands that it owns for almost five years, some upland owners will obtain riparian lands without consideration whereas others will have paid compensation for riparian lands abutting their property, thus constituting discrimination in violation of the Fourteenth Amendment to the United States Constitution and article I, paragraphs 1 and 5 of the New Jersey Constitution; (4) that the Tidelands Resource Council "arbitrarily, capriciously and unreasonably refused to approve" maps so that plaintiffs will lose their claims to unmapped riparian lands; and (5) that purchasers of school bonds issued since enactment of the New Jersey School Bond Reserve Act in 1980 relied on the security of proceeds from the sale of riparian lands pledged to the Fund for the Support of Free Public Schools and that the effect of the Amendment is to impair that security, thereby violating the contract clauses of the New Jersey and United States Constitutions. The defendants filed a general denial and ten affirmative defenses ranging from lack of subject matter jurisdiction to lack of standing.
The trial court denied defendants' motion for judgment on the pleadings. Upon completion of a plenary hearing, the trial court in a written opinion, 187 N.J. Super. 320 (Law Div.1982), concluded that it was unnecessary to decide the constitutional issues
because 1632 base photomaps that had been prepared by the State satisfactorily delineated the State's claims. Id. at 335, 338-39. A map of the State depicting the locations reflected on these base photomaps was marked in evidence at the trial as Exhibit P-13 ("P-13"). The trial court ordered the defendants to file the photomaps and P-13 with the Secretary of State and with clerks of counties and municipalities in which the lands were situated. The trial court also ordered the defendants to complete mapping in accordance with N.J.S.A. 13:1B-13.4 by December 31, 1985. Id. at 340-41.
Both plaintiffs and defendants appealed. The New Jersey Land Title Association was permitted to intervene as amicus curiae. The Appellate Division, in a divided decision, reversed in an opinion written by Judge Greenberg and dismissed the complaint. 187 N.J. Super. 224 (1982). It rejected the plaintiffs' constitutional attack and upheld the validity of the Amendment. Id. at 249-53. However, the Appellate Division decided that the base photomaps did not satisfy the Amendment, id. at 242, but that only those base photomaps with a scribed overlay depicting a line where it was alleged the water had tidally flowed were sufficient (908 photomaps with overlays had been approved by the Council at the time of the Appellate Division opinion on October 22, 1982).*fn2 The Appellate Division also held that the State had the burden of establishing that land had been tidally flowed, id. at 245, and that for the purpose of the Amendment mapping had to meet the statutory requirements of N.J.S.A. 13:1B-13.1 to -13.6 ("Title 13"), id. at 241-43. The dissenting opinion accepted the majority's constitutional holding, id. at 254, but agreed with the trial court that the photomaps with or without a scribed overlay were sufficient to assert the State's claims, id. at 263-64.
Plaintiffs filed a notice of appeal and petition for certification. The defendants filed a cross-petition for certification.*fn3 Both petitions were granted. 93 N.J. 294 (1983). While these matters were pending the parties entered into a Consent Order dated October 26, 1982, providing that the defendants file the photomaps in accordance with the trial court's decision to preserve the integrity of that decision in the event this Court adopted the trial court's interpretation of the Amendment.
The Subject Matter of the Amendment
The historical background concerning the legal status of tidelands is described in detail in the Appellate Division opinion, 187 N.J. Super. at 227-32, and need not be repeated here. The crucial underlying historical fact is that the State owned all land below the mean high water mark on tidally flowed property. O'Neill v. State Hwy. Dep't, 50 N.J. 307, 323 (1967). Upland is land "above mean high water." City of Newark v. Natural Resource Comn., 133 N.J. Super. 245, 252 (Law Div.1974), aff'd, 148 N.J. Super. 297 (App.Div.1977). Interior land that the mean high tide did not reach was not tideland. 50 N.J. at 324. The State could not acquire interior land artificially, such as by constructing ditches that divert the tide onto lands otherwise unflowed. Nor could the riparian owner, generally speaking,*fn4 enlarge his holdings by excluding the tide. Ibid. It was the need to unravel the artificial changes and to determine the legal
status of the land that motivated this Court to suggest in O'Neill "that the appropriate officers of the State should do what is feasible to catalogue the State's far flung holdings." 50 N.J. at 320. O'Neill pertained to land in the Hackensack meadowlands and attention focused on cataloguing the State's ownership claims in the meadowlands. The legislative response to O'Neill was enactment of N.J.S.A. 13:1B-13.1 to -13.6.
Title 13 required that the Council undertake title studies and surveys of "meadowlands" throughout the State "to determine and certify those lands which it finds are State owned lands." N.J.S.A. 13:1B-13.2. "Meadowlands" are defined as "those lands, now or formerly consisting chiefly of salt water swamps, meadows or marshes." N.J.S.A. 13:1B-13.1(a). The statute also states that "[i]mproved meadowlands" means those "reclaimed by fill or other material" and may include structures. N.J.S.A. 13:1B-13.1(b). "Virgin meadowlands" are defined to be those in their "natural state." N.J.S.A. 13:1B-13.1(c). Nowhere in the operative sections of the statute is any reference made to "improved" or "virgin" meadowlands.
The Council is directed to publish a map "clearly indicating those lands designated . . . as State-owned lands." N.J.S.A. 13:1B-13.4. Copies are to be filed with the Secretary of State and the clerks of the counties and municipalities wherein the land lies. Ibid. A list of the parcels is to be published in a newspaper circulating in the relevant county. Ibid. Aggrieved parties can lodge objections and file pertinent information with the Council, which in turn would review its prior determination. Aggrieved parties have the right to institute suits to quiet title. N.J.S.A. 13:1B-13.5. The Council also has the authority to sell or lease the State's interest in the meadowlands, N.J.S.A. 13:1B-13.7, the net proceeds to be paid into the Fund for the Support of Free Public Schools, N.J.S.A. 13:1B-13.13.
The mapping statute originally provided that the studies and title surveys be completed on or before December 31, 1974. L. 1968, c. 404, § 92. This was extended to December 31, 1977,
L. 1975, c. 288, § 1, and to December 31, 1980, L. 1978, c. 44, § 1. Part of the delay was due to the litigation involving the mapping techniques used by the State. See City of Newark v. Natural Resource Coun., 133 N.J. Super. 245 (Law Div.1974), aff'd, 148 N.J. Super. 297 (App.Div.), certif. granted and matter summarily remanded for clarification of opinion, 75 N.J. 32, clarified and aff'd, 152 N.J. Super. 458 (App.Div.1977), aff'd, 82 N.J. 530, cert. den., 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980) (for a description of this litigation). The unambiguous statutory language limits the scope of cataloguing to "meadowlands throughout the State." N.J.S.A. 13:1B-13.2. It may be observed that the statute required that the first survey be made of the Hackensack meadowlands. Ibid. We agree with the dissenting opinion of the Appellate Division that the statute was intended to apply "only to meadowlands and not to other tidelands." 187 N.J. Super. at 258; see id. 258-59 (describing the history of N.J.S.A. 13:1B-13.1 to -13.6).*fn5 The mapping statute covered all meadowlands throughout the State, whether or not they had been affected by artificial conditions, and did not extend to non-meadowlands tideland properties.
Although Title 13 required that the State examine only the meadowlands, the State decided to investigate all tidal properties in which it might have an interest. N.J. Department of Environmental Protection, Administrative Order No. 34 (July 26, 1973). O'Neill alerted the State and property owners of lands abutting the ocean, rivers and bays of the possibility of the State's interest in these properties. The uncertainties of the legal status of upland properties were manifest. If the upland condition had been artifically created by an impermissible method, ownership of the land might be in the State. Borough of
The constitutional Amendment was addressed to these concerns.*fn6 The Amendment was an attempt to ameliorate these anxieties and expedite resolution of title disputes. At the joint hearing of the Senate and General Assembly committees held pursuant to article IX, paragraph 1 of the Constitution to consider whether the Amendment should be submitted to the people, Senator Perskie, who presided and was a sponsor of the resolution, stated that the proposed Amendment
would provide, in effect, a statute of limitations within which the State would have a right to define and to assert the riparian rights. . . [T]his proposed amendment is not designed and would not have the effect of depriving the State of any riparian claim to that which the Constitution entitles the State. It simply provides a time frame within which any such claim may be defined and asserted after a given piece of ground would cease to be tidal flowed. [ Public Hearings before Senate Judiciary Committee and Assembly Judiciary, Law, Public Safety and Defense Committee on ACR-3037 and SCR-3023 1 (June 5, 1981)]
The Administration opposed the adoption of the resolution authorizing submission of the Amendment to the electorate. Richard McManus, Associate Counsel to the Governor, stated at the public hearing that "[t]he period provided in the amendments is much too brief a period for the State to complete its work." Id. at 2. Judith Yaskin, First Assistant Attorney General, asserted there that though mapping of the entire state had been proceeding for the past ten years, a year and a half would not be sufficient time to complete the mapping. Id. at 5. She claimed the Legislature had not provided sufficient money or manpower. Id. at 17. Despite the opposition, three fifths of all members of the Senate and Assembly agreed to submit the
Amendment to the people. The Amendment, adopted in the general election of November 3, 1981, 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. of 1947, art. VIII, § 5, para. 1]
It is undisputed that the lands referred to in the Amendment include meadowlands and non-meadowlands. It is also clear that the Amendment applies only to lands that had been tidally flowed at one time. However, the effect of the Amendment may not be the same on all tidally flowed land. Thus, the State may have no claim to upland that became tidally flowed because of avulsion*fn7 or some artifically created condition. O'Neill v. State Hwy. Dep't, 50 N.J. 307, 324 (1967).
It is also apparent that the Amendment relates only to properties that are not now tidally flowed, but had at one time been naturally tidally flowed. After such properties have not been so flowed for a 40-year period, the State's claim will be time-barred unless the State has "specifically defined and asserted such a claim pursuant to law" prior to the expiration of the 40-year period. The Amendment afforded the State an additional year specifically to define and assert claims when the 40-year period would have elapsed by November 3, 1981. Thus the State had one year, to November 3, 1982, to claim lands that had not been flowed by the tides since at least November 1941. Land that had become upland by natural accretion or reliction*fn8
generally belonged to the abutting property owner irrespective of the duration of time during which it had been upland. Borough of Wildwood Crest v. Masciarella, 51 N.J. 352, 359 (1968). With respect to accretion or reliction that occurs in connection with artificial structures, see the discussion in Borough of Wildwood Crest, supra, 51 N.J. at 359-61.
How the State May Define and Assert a Claim Under the Amendment
We are initially concerned with whether the State must satisfy the requirements of N.J.S.A. 13:1B-13.1 to -13.6 in order to "specifically define and assert its claim pursuant to law." Plaintiffs argue that "pursuant to law" refers to statutory law and that the only legislative pronouncement dealing with identification of State claimed riparian property is found in Title 13. Accordingly, the State must comply with Title 13. This contention is flawed for several reasons.
First, Title 13 delineated a methodology that was to be used to enable the Council "to determine and certify those lands which it finds are State owned lands." N.J.S.A. 13:1B-13.2 (emphasis added). This standard differs from one in which the State proposes to assert a claim. The difference is not simply semantic. Determination and certification that lands are owned by the State call for more stringent requisites than simply asserting a claim. Second, as previously observed, Title 13 does not encompass all riparian lands; and studies of meadowlands properties may involve factors substantially different from those involved in oceanfront properties. Third, it is obvious that claims could be defined and asserted in ways different from that prescribed in Title 13. It is reasonable to assume that the people's intent was not that restrictive. A listing of the statutory requirements makes the point self-evident. Title 13 requires 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. N.J.S.A. 13:1B-13.4. There must be publication of a list of the parcels designated in whole or in part as State-owned lands in a newspaper circulating in the county where the land is located. Ibid. Title 13 has been interpreted to compel the State to set forth on the maps any riparian grants that it may have made. City of Newark v. Natural Resource Coun., supra, 133 N.J. Super. at 261. That is consonant with the legislative (Title 13) imperative that the State certify ownership, a requirement that need not be satisfied under the Amendment. 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 impairment of its administrative flexibility. 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.*fn9
We find nothing in the legislative history of the Amendment that supports the conclusion that Title 13 sets forth the exclusive manner in which a claim could be made. This is not to say that the Legislature could not enact a statute prescribing the method to define and assert a claim. We find, however, that even in the absence of such a statute, the Council has authority to designate and describe lands that the State claims it owns. The Legislature has authorized the Council to convey ...