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In Lisowski v. Borough of Avalon (2015), the Superior Court of New Jersey considered two consolidated appeals, Lisowski v. Borough of Avalon and State of New Jersey, Department of Environmental Protection v. Township of Delanco, each challenging the timeliness of the State of New Jersey’s claims of ownership to certain tideland property.
The two disputes mark the latest chapter in a reoccurring conflict stemming from an ambiguity over which tidelands the State owns. It is well established that the State has title to “all lands that are flowed by the tide up to the high-water line or mark.” O’Neill v. State Highway Dep’t, 50 N.J. 307, 323 (1967). Problems arise, however, when land that once was submerged by sea becomes dry, because the State’s ownership extends to “all lands that have ever been flowed by the tide,” leaving property owners uncertain as to whether their parcel was once tidal flowed. Gormley v. Lan, 88 N.J. 26, 29 (1981) (emphasis added).
In 1968, in response to this uncertainty, the Legislature created by the Resource Development Council, a predecessor to the current Tidelands Resource Council (“TRC”), to determine and disseminate the lands owned by the State. N.J.S.A. 13:1B-13.1 to -13.6. When the agency missed its deadlines, the Legislature enacted the 1981 amendment to the New Jersey Constitution, N.J. Const. art. VIII, § 5, ¶ I (the Amendment), which imposed a time limit governing when the State could delineate and lay claim to its property. If the State failed to timely act, it would forfeit any future claims.
In Lisowski, plaintiffs William and Clara Lisowski (“Plaintiffs”) applied for a Statement of No Interest with the TRC to confirm that the State had no ownership interest in their property. The State denied Plaintiffs’ application and asserted a tidelands claim to a vast majority of their land. Plaintiffs responded by filing a quiet title action, alleging that the TRC had waived any rights to their land by failing to assert its tidelands claim within the time limit set forth in the Amendment. Ultimately fatal to Plaintiffs’ cause was the undisputed fact that their land had been designated as State property on one of the 713 maps that TRC created and published pursuant to the Amendment in1982.
Although Plaintiffs argued that the map was of no controlling effect because it was not timely filed with either Cape May County or the Borough of Avalon, the Appellate Division rejected this argument on grounds of issue preclusion. The appeals court ruled that Plaintiffs could not now challenge the efficacy of the maps because Dickinson v. Fund for the Support of Free Pub. Sch., 95 N.J. 65, 84 (1983), already established that the State had in fact provided timely and proper notice of the filing of the maps. As a result, Plaintiffs were collaterally estopped from relitigating the issue of whether the State had preserved its right to the tidelands.
Lisowski instructs property owners that the State is not required to provide express notice of its ownership to specific tideland parcels, so long as the parcel is within one of the aforementioned 713 maps that were properly filed pursuant to the Amendment.
Delanco involved a quiet title action brought by the State against the Township of Delanco (“Township”), alleging that the State had claimed, as tidelands, the area neighboring the Delaware River known as the “Dunes.” The parcel at issue in Delanco was not delineated in the set of maps addressed by Lisowski, but was instead included in a map subsequently adopted by the TRC in 1985, meaning that it was not among those explicitly approved by the Dickinson court. Thus, to establish its tidelands claim in Delanco, the TRC relied on a tidelands mapping process that included, in relevant part, a procedure requiring the use of “the latest source which shows the least alteration” of the land within the designated time limit of the Amendment.
The Township’s expert opined that the State unconstitutionally delineated its tidelands claim by using aerial photographs from 1946 as its latest source, rather than aerial photographs from 1951. The State’s expert justified the State’s use of the 1946 photographs based on the blurriness of the 1951 photographs. The trial judge, based on her own examination of the photographs, agreed with the State’s expert and determined that the 1946 photographs were the latest, reliable source.
The Appellate Division, applying a strong presumption of reasonableness to the TRC’s methodology and giving due deference to the agency’s broad discretion to implement its own procedures, agreed that the agency’s use of the 1946 photographs as the basis of the State’s tidelands claim was proper.
The Township fared no better with respect to its contention that the State failed to prove that it provided timely notice of its tidelands claim, a contention based on the absence of records expressly showing that the State delivered a copy of the map to the Township. In rejecting the Township’s argument, the trial judge found that the Township had passed a resolution in 1986 that contained a map with the same tidelands claim markers that appeared on the map of the Dunes, thus tending to confirm that the State had provided the requisite notice to the Township. The trial judge also determined that a State employee’s “rather extraordinary” testimony regarding the timely delivery of maps to the Township years ago was credible.
The Appellate Division found the trial judge’s reasoning to be sound and affirmed her decision that the State properly asserted its tidelands claim.
In sum, the State’s tidelands claims in both Lisowski and Delanco were successful, albeit on different grounds. Property owners in possible tidelands areas should keep in mind that just because the State has not yet pursued a tidelands claim, it does mean the State lacks an ownership interest in the parcel.
Lieberman Blecher & Sinkevich’s attorneys have extensive experience with Tidelands issues and can assist you in navigating your way through this often complicated process.
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