In Re Tideland’s License 96-0114-T

326 N.J. Super. 209, 740 A.2d 1125 (App. Div. 1999)
  • Opinion Date: November 29, 1999

TIDELAND’S LICENSES—Even an owner with less than a fee interest in riparian land may be granted a Tideland’s license.

An original owner along a tributary of the Navesink River filed a map with the municipality to develop that land into a fifteen lot subdivision. The plan provided for six riparian lots and nine inland lots with a twenty-foot wide strip of land running between two of the riparian lots from the creek to the street which the inland lots fronted. The strip of land was not included in the deeds of the adjacent riparian lot owners. Seven of the deeds for the inland lots contained language conveying the inland properties together with a right-of-way in common with others over the strip of land. The deed for the other two upland lots conveyed those properties together with the right to use, in common with others, the same strip of land as shown on a map. It seemed fairly evident to the Court that the “subdivision was planned and improved with this strip of riparian property to provide the inland lot owners access to and use of the creek.” Shortly after construction of the development, a dock was constructed offshore of the twenty foot strip of the riparian land and was in place until a storm caused substantial damage. This offshore use “impinged upon the State’s ownership interests in the adjacent tidelands, and, so, when the inland dock owners sought to rebuild the dock in the late 1990’s, they were required to, and did, obtain a waterfront development permit… .” They also obtained a tidelands license from the New Jersey Tidelands Resource Council. 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.” The riparian owners argued that the Council could not issue tideland licenses to the inland owners. They argued that the pertinent statute only authorized the Council to make grants, leases, or licenses to riparian owners on tidewaters in the State. They contended that the inland lot owners were not “riparian owners” within the meaning of the statute. The Court agreed that the discretion of the Council to grant licenses had been characterized as being confined to an owner of the riparian “upland” property. Moreover, case law consistently has held that the Council’s discretionary authority to issue grants and licenses to riparian owners does not “clothe it with the authority to adjudicate title disputes.” Nonetheless, in a hearing before the Council, the attorney for the inland lot owners argued that the riparian strip of land was intended to be a common element owned in common by the non-waterfront property owners to provide and facilitate their access to the Navesink River. “The Council apparently accepted the position of the inland lot owners that their deeded rights to the twenty-foot strip of riparian property gave them sufficient indicia of riparian ownership such that they were entitled to apply for a riparian lease… .” The Court stated that it is “the intent of the parties that is determinative of what has been conveyed by a deed, not the labels used.” Therefore, in its view, the “Council properly concluded that the inland lot owners were endowed with sufficient indicia of riparian ownership such as to justify the exercise of [the Council’s] discretionary authority to issue the revocable [Tideland’s] license.