What’s New in Tidelands: Lagoon Treatment and the Perri Case By Joseph A. Grabas, CTP, NTP
|While the New Jersey Tidelands laws have remained rather static for the past several decades, And the statute has seen minimal change, there have been a few interesting cases and decisions that, among other things, demonstrate the importance of language within grants. Take Panetta v Equity One, 190 N.J. 307 (2007), for example, which revisited and confirmed long standing real property principles. The Panetta Court upheld the age-old legal tenet that one corporeal estate cannot be appurtenant to another. In other words, “land cannot be appurtenant to land.” Therefore, a Tidelands Grant, which is the fee title to land under water, is not, and cannot, be appurtenant to the adjacent upland. Each parcel, grant and upland, may be conveyed separately and are not forever attached and connected. This simple rule instructs us that we must always make sure that both parcels are specifically described in each deed or mortgage if they are intended to be conveyed together. The absence of the Grant from the deed or mortgage description will be fatal, as Equity One found out.
“This grant is made subject to the limitations that neither the grantee herein nor its successors or assigns shall exclude the tidewaters from lands above described nor fill in, erect a pier or piers or otherwise improve or develop the same, and not appropriate the said lands under water to its own exclusive use, until a permit therefor shall have been issued to it for that purpose.” (emphasis added)
In 1994, Perri did apply for and receive a permit from the NJDEP to replace his bulkhead eighteen (18) inches beyond the existing bulkhead located at the Bulkhead Line. Thus “appropriating the said lands under water (between the bulkhead and pierhead lines) to its own exclusive use.” Perri made a subsequent application to the Tidelands Resource Council (a different branch of the NJDEP) for a Statement of No Interest to cover the 18” extension, since it had dutifully obtained the required permit as referenced in the grant. The Tidelands Resource Council approved the Statement of No Interest, but the NJDEP Commissioner vetoed the Council’s approval. Perri filed a complaint in Superior Court seeking to invalidate the veto. Perri won on summary judgment and the NJDEP appealed to the Appellate Court and the trial court decision was upheld.
The language found in Tidelands/Riparian documents have changed decidedly over the years because of court decisions such as this. Needless to say a grant given today, will not contain the same permit language found in previous grants. So, it instructs us that all grants must be examined carefully from front to back in order to truly ascertain the potential risks involved in dealing with lands now or formerly flowed by tidal waters. One of the primary differences is the way in which the grant maps were created (the maps contained within the grants, not to be confused with claim maps). Prior to 1972, when an individual or entity owning waterfront property was interested in buying the land under water adjacent to said property, they would commission a survey, showing the MHWL at that time and the area under water adjoining same, and then make application to the NJDEP in reliance upon said map.
Neither the NJDEP nor the Tidelands Resource Council (3) were actively involved in the mapping of tidelands, not until O’Neill v. State Highway Department, 50 NJ 307 (1967). This decision changed the relatively passive nature of the NJDEP regarding tidelands claims into a detailed mapping and enforcement of such claims. Therefore, the grants issued prior to 1972 did not necessarily take into account the subsequently mapped claims that are presented today. In other words, the old grants and the “new” maps don’t always agree and therefore, must be justified.
Similarly, the language contained in the older grants does not uniformly match the language in today’s grants. Except for the requirement for upland ownership in accordance with N.J.S.A. 12:3-45a, wherein the grant may be voided in the event that the grantee in said grant does not prove to be the upland owner at the time of issuance, that still appears in every new grant. Which brings us to our second topic, Lagoons. The vast majority of Lagoon developments along the Jersey coast are a combination of Upland and Tidelands. A lagoon developer purchased a tract of upland, such as in the case of Peninsula Corporation and then augmented it by purchasing the adjacent tidelands. Then the developer bulkheads and fills, excavates and dredges to form the lagoons. The fee title to the lagoon beds is vested in the developer or possibly transferred to a lagoon association. The upland lots are conveyed to lagoon lot purchasers.
The State, having already conveyed title through the grant cannot claim ownership to the lagoon beds. Even though they are underwater and flowed by the tide, they are private property. However, because many of the tideland grants obtained by lagoon developers are based upon footage along the MHWL, the Attorney General has ruled that any tributaries running inland from the MHWL, which were not specifically set forth on the Grant Map, were NOT conveyed under the grant and therefore are claimed by the State of New Jersey.(3)
Often it will be found that a former tributary runs through the upland lot and continues through the lagoon. When upland owners make an application to the TRC to clear record title, they may also ask to clear the continuation of the tributary into the lagoon. The State cannot convey the lagoon bed because it is private property, they are limited to the area claimed as the former bed of the tributary.
On February 5, 2020, the TRC adopted a new policy regarding grants given on Man-made Lagoons. The TRC has agreed that the State and the TRC should not convey title (or the appearance of conveying title) to property that is not “Tidelands” located outside of the applicant’s record title. The TRC generally will not convey the right to place additional solid fill within any tidally flowed Tidelands. Therefore, new lagoon grants will require the creation of a new metes and bounds description and a completely new title description (part of which would not be claimed by the State of NJ) with important additional language, so that it will not be misconstrued as establishing fee title ownership to any portion of the lagoon outside record title beyond that which is claimed by the State.
Simply put, the new grants contain additional language which significantly limits the nature of the conveyance. Even more reason to read every grant, all four corners. Title Insurers, Attorneys and Surveyors should visit the new Survey Requirements Checklist at: https://www.nj.gov/dep/landuse/forms.html
There are 5 common scenarios (described as 1a, 1b, 2a, 2b, and 2c) for properties within a man-made lagoon community where the mapped Tidelands claim from former natural tidal creeks/tributaries may have intersected the property in question.
In the past, the grant exhibit would depict a “box” for the entire area subject to the grant, including the area within record title. Generally, this box would extend out from the side lines of the property beyond record title to include any additional claim areas being granted with the condition that any area of the grant beyond record title would be subject to the rights of the lagoon owner. The TRC had concerns that this could be misconstrued as conveying all of the lagoon adjacent to the upland and wanted to make it abundantly clear that the grant was only conveying rights to the claim area itself, outside of record title. Be aware of this newly minted TRC policy regarding lagoon grants.
A final word of caution when reviewing tidelands grants; the Map of Peninsula Park, Section 2B, Map No. F-28 (1970) in the Borough of Seaside Park, Ocean County was completely constructed out of fill within a Tidelands Grant from 1900 in Liber N page 363. The property was not filled and subdivided until 1970. Within the grant was included the following exception: “Excepting out of the above-described tract of land under water the land under water lying within the extension of 16th 17th 18th and 19th Avenues and the southerly half of 15th and the northerly half of 20th Avenue out to said Exterior wharf line.”
Unfortunately, the developer in 1970 did not carefully read the Tidelands Grant and subdivided the property with a completely different road system, rather than extending the roads excepted. Because of their failure to properly read the four corners of the 1900 Grant, almost every one of the lots on the 1970 map have a tidelands claim running through them. The take away is…Read The Grant!