Dickinson v. Fund for Support of Free Public Schools

• Decision Date: 21 December 1983
• Citation: 469 A.2d 1,95 N.J. 65
• Parties: 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, and John J. Sullivan, Plaintiffs-Appellants and Cross- Respondents, 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 Support of Free Public Schools; and the Tidelands Resource Council, a division of the New Jersey Department of Environmental Protection, Defendants-Respondents and Cross-Appellants.
• Court: New Jersey Supreme Court

Page 65

95 N.J. 65

469 A.2d 1

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, and John J. Sullivan, Plaintiffs-Appellants and Cross- Respondents, 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 Support of Free Public Schools; and the

Tidelands Resource Council, a division of the New Jersey

Department of Environmental Protection,

Defendants-Respondents and Cross-Appellants.

Supreme Court of New Jersey.

Argued Sept. 12, 1983.

Decided Dec. 21, 1983.

E. Carter Corriston, Hackensack, for plaintiffs-appellants and cross-respondents (Breslin & Breslin, Hackensack, attorneys; Terry Paul Bottinelli, Hackensack, on the brief).

Deborah T. Poritz, Deputy Atty. Gen., for defendants-respondents and cross-appellants (Irwin I. Kimmelman, Atty. Gen. of New Jersey, attorney; Michael R. Cole, Asst. Atty. Gen., of counsel; William Harla, Deputy Atty. Gen., on the brief).

John R. Weigel, Princeton, for amicus curiae New Jersey Land Title Association (John R. Weigel and Joseph M. Clayton, Jr., Princeton, attorneys).

The opinion of the Court was delivered by

SCHREIBER, J.

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"), ¹ 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, 454 A.2d 480 (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, 454 A.2d 480. 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, 454 A.2d 480.

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, 454 A.2d 491 (1982). It rejected the plaintiffs' constitutional attack and upheld the validity of the Amendment. Id. at 249-53, 454 A.2d 491. However, the Appellate Division decided that the base photomaps did not satisfy the Amendment, id. at 242, 454 A.2d 491, 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). ² The Appellate Division also held that the State had the burden of establishing that land had been tidally flowed, id. at 245, 454 A.2d 491, 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, 454 A.2d 491. The dissenting opinion accepted the majority's constitutional holding, id. at 254, 454 A.2d 491, 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, 454 A.2d 491.

Plaintiffs filed a notice of appeal and petition for certification. The defendants filed a cross-petition for certification. ³ Both petitions were granted. 93 N.J. 294, 460 A.2d 691 (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.

I 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, 454 A.2d 491, 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, 235 A.2d 1 (1967). Upland is land "above mean high water." City of Newark v. Natural Resource Comm'n, 133 N.J.Super. 245, 252, 336 A.2d 46 (Law Div.1974), aff'd, 148 N.J.Super. 297, 372 A.2d 644 (App.Div.1977). Interior land that the mean high tide did not reach was not tideland. 50 N.J. at 324, 235 A.2d 1. The State could not acquire interior land artifically, such as by constructing ditches that divert the tide onto lands otherwise unflowed. Nor could the riparian owner, generally speaking, ⁴ 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, 235 A.2d 1. 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...