Perri v. State, DOCKET NO. A-3926-16T3
| Decision Date | 28 November 2018 |
| Docket Number | DOCKET NO. A-3926-16T3 |
| Parties | VINCENT PERRI, Plaintiff-Respondent, v. STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, DIVISION OF LAND USE REGULATION, BUREAU OF TIDELANDS MANAGEMENT and ASSISTANT COMMISSIONER VIRGINIA KOPKASH, Defendants-Appellants. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
Before Judges Messano, Gooden Brown and Rose.
On appeal from Superior Court of New Jersey, Chancery Division, Ocean County, Docket No. C-000112-16.
Nicolas G. Seminoff, Deputy Attorney General, argued the cause for appellants (Gurbir S. Grewal, Attorney General, attorney; Jason W. Rockwell, Assistant Attorney General, of counsel; Nicolas G. Seminoff, on the briefs).
John F. Chiaia argued the cause for respondent.
Edward C. Eastman argued the cause for amicus curiae New Jersey Land Title Association (Davison, Eastman, Muñoz, Lederman & Paone, PA, attorneys; Michael J. Fasano, on the brief).
Peninsula Corporation (Peninsula) owned land above the mean high-water mark on Barnegat Bay in the Curtis Point section of Brick Township. In 1969, Peninsula purchased adjacent underwater property from the State of New Jersey in contemplation of installing bulkheads, backfilling the land, and constructing a residential development, which it did. Attached to the 1969 grant from the State to Peninsula (the grant), and incorporated by reference, was a map that generally sketched the line of Peninsula's existing property above the mean high-water mark, and denoted two lines, the Bulkhead Line and the Pierhead Line (collectively, the Lines), with metes and bounds descriptions for both. It is undisputed that the State conveyed all underwater lands to the Bulkhead Line to Peninsula. The Pierhead Line lay further offshore of the Bulkhead Line in the waters of the Bay.
In 1984, plaintiff Vincent Perri purchased a single-family waterfront home in the development.1 Plaintiff's predecessor in title had purchased the property from Peninsula in 1973, and the deed to Perri conveyed two separate lots: Lot 61, with a waterside property line that was the Bulkhead Line; and Lot 61.01, which was the underwater property between the Lines. In 1994, plaintiff applied for and was granted permission from DEP to construct "[seventy-five] linear feet of replacement bulkhead, [eighteen] inches waterward of the existing deteriorated bulkhead, legalize [the] existing . . . dock, and c[o]nstruct a [four-foot] wide . . . dock parallel to the bulkhead . . . ." The permit included an administrative condition that plaintiff "receive a Tidelands grant, lease or license . . . ." Accompanying the application for the permit and license was a survey map, showing the lot lines and the anticipated improvements to be constructed between the Lines. Plaintiff renewed the license in 1999.
Plaintiff failed to renew the license when it expired in 2006. In 2009, DEP notified plaintiff that he needed to file a renewal application, which plaintiffcompleted and submitted to DEP. In 2010, DEP approved the license, subject to plaintiff's payment of past due charges and per annum charges going forward. Plaintiff failed to pay the charges and no license issued.
In 2013, DEP issued a notice of lien on plaintiff's property for delinquent lease payments. In response, plaintiff successfully applied to the Tidelands Resource Council (TRC) for a statement of no interest (SNI), essentially arguing that he owned the underwater property between the Lines and therefore was not required to pay for a license. On March 18, 2016, DEP's Assistant Commissioner, Virginia Kopkash, vetoed the TRC's minutes approving the SNI. Kopkash stated, "The State retain[ed] certain property interests in portions of the [property] that it may not relinquish without receiving compensation . . . ."
In response, plaintiff filed a pro se complaint seeking to invalidate Kopkash's veto. He later amended his complaint to add a quiet title claim. DEP answered, and both sides moved for summary judgment.
After considering oral argument, on January 20, 2017, in a comprehensive oral opinion, the motion judge granted summary judgment to plaintiff on both counts of the complaint. DEP filed a timely motion for reconsideration, which the judge denied. This appeal followed.
The question before us is straightforward. By the terms of the grant, did DEP convey fee simple title to the underwater property between the Lines, as plaintiff argues and as the judge agreed? Alternatively, did DEP retain fee simple title to that property, thereby retaining the right to license plaintiff's use of any portion of the property?2 Amicus New Jersey Land Title Association (NJLTA) agrees with the motion judge's interpretation of the grant. Moreover, it asserts that title insurers throughout New Jersey, relying on recordation statutes and common practice, would insure title based upon the recorded document, i.e., the grant, and might otherwise be unaware of the agency's claim to the property between the Lines, simply because DEP issued a license.
We review a grant of summary judgment by applying the "same standard as the motion judge." Globe Motor Co. v. Igdalev, 225 N.J. 469, 479 (2016) (quoting Bhagat v. Bhagat, 217 N.J. 22, 38 (2014)). Summary judgment will be granted if "there is no genuine issue as to any material fact challenged and . . . the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). "[T]he appellate court should first decide whether there was a genuine issue of material fact, and if none exists, then decide whether the trial court'sruling on the law was correct." Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010) (citing Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998)). "The trial court's conclusions of law and application of the law to the facts warrant no deference from a reviewing court." W.J.A. v. D.A., 210 N.J. 229, 238 (2012) (citing Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
We agree there are no factual disputes, and the issue on appeal presents solely a question of law. See, e.g., Stransky v. Monmouth Council of Girl Scouts, Inc., 393 N.J. Super. 599, 608 (App. Div. 2007) (). We begin by reviewing some general principles.
"The State owns in fee simple all lands that are flowed by the tide up to the high-water line or mark." Panetta v. Equity One Inc., 190 N.J. 307, 318 (2007) (quoting O'Neill v. State Highway Dep't., 50 N.J. 307, 323 (1967)). "A riparian grant . . . is the method by which the State conveys riparian lands to its citizens." Ibid.
"In short, a riparian grant is the conveyance of real property divided from the uplands by a fixed boundary, no different from any other conveyance of land." Ibid. As a result, "where the State grants or 'leases' riparian lands by an instrument using [appropriate] language . . . a fee is conveyed, the grantee becomes the owner of said lands, and no title remains in the State." Island Heights v. Presbyterian Camps & Confs. Inc., 68 N.J. Super. 291, 295 (App. Div. 1961).
These words were typed in a space provided on a printed legal form, with very little else being typed on the form.3 Notably, the Pierhead Line appears on the attached map as a dash line; the Bulkhead Line is a solid line.
Judge Skillman explained the basic tenets an appellate court should apply in construing a deed.
Here, the granting provisions of the instrument are unambiguous. The State conveyed all the property fronting and abutting Peninsula's land, not only to the solid Bulkhead line, but also to the dashed Pierhead line. DEP's...
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