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In re Tideland's License 96-0114-T

November 29, 1999


Before Judges Conley, Braithwaite and Coburn.

The opinion of the court was delivered by: Conley, J.A.D.


Argued November 8, 1999

On appeal from New Jersey Tidelands Resource Council, Department of Environmental Protection.

This is an appeal from a seven-year revocable tidelands license, granted as of June 3, 1998, and dated November 9, 1998, by the New Jersey Tidelands Resource Council (Council) pursuant to N.J.S.A. 12:3-10, and approved by the Commissioner of the Department of Environmental Protection pursuant to N.J.S.A. 13:1B-13, and from the Council's January 6, 1999, denial of a stay and "reaffirmance" of the license. The license was issued to permit the "use and maintenance of a pier in Clay Pit Creek, out shore of a twenty-foot wide [riparian] right-of-way" located between two adjacent riparian properties, one of which is owned by appellant. We affirm.

The critical facts are these. In 1956, the then owners of certain land along Clay Pit Creek, a tributary of the Navesink River, filed a map plan with the Township of Middletown to develop their land into a fifteen lot subdivision, to be known as "Hartshorne Park." The plan provided for six riparian lots and nine inland lots. Between two of the riparian lots, lot 11 and lot 12 on the original subdivision plot, is a twenty-foot wide strip of land running from Clay Court, the street servicing the lots and on which the inland lots front, to the creek. This strip of land is not included in the deeds to either lot 11 or 12. Rather, when the nine inland lots were sold, seven of them contained language conveying the inland properties and:

a right-of-way in common with others to the party of the second part, their heirs and assigns over and across a strip of land twenty (20) feet in width running from Clay Court to Clay Pit Creek, a branch of the Navesink River, which strip of land lies between lots 11 and 12 on said map and is designated thereon as "Right-of-Way."

The deeds for the other two upland lots conveyed the properties:

Together with the right to use in common with others of property shown on said map, a certain right of way to the Navesink River located between lots 11 and 12 as shown on said map.

As far as the record reflects, none of the deeds for these inland lots from the original grantors retained in the grantors any reservation of rights or property interest in the twenty-foot strip of riparian land. Neither has the original grantor (nor, apparently, anyone else) ever been taxed separately for the property; it is not considered by the municipality to be a public street or public right of way. It seems, moreover, fairly evident that the subdivision was planned and approved with this strip of riparian property to provide the inland lot owners access to and use of the creek. Evidently consistent with this scheme, either simultaneous with or shortly after construction of the development, a dock was constructed offshore of the twenty-foot strip of riparian land which has been maintained and used over the years by the inland lot owners, at least until a storm in 1997 caused substantial damage.

This offshore use, of course, impinged upon the State's ownership interests in the adjacent tidelands, and, so, when the inland lot owners sought to rebuild the dock in the late 1990's, they were required to, and did, obtain a waterfront development permit pursuant to N.J.S.A. 12:5-3, not at issue here, and a tideland license from the Council. It is the Council's grant of this license that appellant challenges here and he does so primarily contending that the issuance of the license to the inland lot owners is beyond the authority of the Council as contrary to N.J.S.A. 12:3-10.

The State is the proprietor of all lands under tidewater below high water mark (tidelands) and possesses all of the incidents of ownership, including the absolute discretion in making conveyances or granting licenses to its tidelands, subject to the governing statutory criteria and the demands of the public trust doctrine. Atlantic City Elec. Co. v. Bardin, 145 N.J. Super. 438, 442-44 (App. Div. 1976). See LeCompte v. State, 65 N.J. 447, 450-51 (1974); Taylor v. Sullivan, 119 N.J. Super. 426, 430 (App. Div. 1972) ("action or inaction [of the Council] . . . in respect of grants of its [tidelandes] interests is not reviewable in terms of alleged abuse of discretion but solely on the basis of whether [its] action is within or without the bounds of the pertinent statutory limitations."). The authority to exercise this discretion is reposed in the Council with the approval of the Commissioner of the Department of Environmental Protection, N.J.S.A. 13:1B-13. Its determinations are entitled to a presumption of validity. City of Newark v. Natural Resource Council in Dept. of Envtl. Protection, 82 N.J. 530, 539-40, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980).

The pertinent statute is N.J.S.A. 12:3-10. It authorizes the Council to make grants, leases or licenses to:

Any riparian owner on tidewaters in this State who is desirous to obtain a lease, grant or conveyance from the State of New Jersey of any lands under water in front ...

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