VINCENT PERRI VS. STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION (C-000112-16, OCEAN COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3926-16T3
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.
_______________________________________________
Argued September 17, 2018 – Decided November 28, 2018
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).
PER CURIAM
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.
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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 plaintiff
1
Plaintiff purchased the property with his wife, and the New Jersey Department
of Environmental Protection (DEP) issued the subsequent applications and
permits we reference in the opinion in the names of plaintiff and his wife.
However, plaintiff filed the complaint initiating the litigation that resulted in the
judgment under review in his name alone, and the order we review lists only
plaintiff. We therefore refer to plaintiff in the singular throughout this opinion.
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completed 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.
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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's
2
It is undisputed that DEP retains the right to require plaintiff to seek its
approval and obtain appropriate permits before any construction in, on or above
the underwater lands between the Lines.
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ruling 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) (citing Hofer v. Carino,
4 N.J. 244, 250 (1950) ("The construction of a deed is a question of law.")). 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.[T]he title and interest of the state in these shore
lands [is] a distinct and separate estate, to be dealt with
and disposed of in accordance with the terms of the
statutes; first, by a sale and conveyance to the riparian
owner himself, . . . .
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....
[T]he title under the New Jersey grants is not only
of a new estate, but in a new subject divided from the
upland or riparian property by a fixed and permanent
boundary. . . . [Such grants are] of the estate in the land,
and not of a mere franchise or incorporeal
hereditament. . . . [U]nder these grants the land
conveyed is held by the grantees on the same terms on
which all other lands are held by private persons under
absolute titles, and every previous right of the State of
New Jersey therein, whether proprietary or sovereign,
is transferred or extinguished, except such sovereign
right as the State may lawfully exercise over all other
private property.
[Id. at 319 (alterations in original) (quoting Hoboken v.
Pa. R.R. Co., 124 U.S. 656, 690-91 (1888)).]
"In short, a riparian grant is the conveyance of real property divided fr om 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).
The grant conveyed to Peninsula,
ALL that tract of land flowed by tidewaters situate in
the Township of Brick . . . , fronting on and abutting
lands acquired by [Peninsula] by deed dated March 13,
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1958 . . . and extending to the Pierhead Line herein
established, in . . . Barnegat Bay the several courses and
distances of the lands intended to be granted herein as
shown within the dash lines on the map attached and
made part hereof.
[(Emphasis added).]
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.
[T]he court must undertake to determine the intention
of the parties. If that intention is not clear on the face
of the deed, the court may consider extrinsic evidence
to resolve any ambiguity. However, in the absence of
extrinsic evidence, the court must determine a dispute
concerning title by construing the deed as a whole,
without giving disproportionate emphasis to any
individual part of the document.
3
Citing Riverton Country Club v. Thomas, 141 N.J. Eq. 435, 445 (Ch. Div.),
aff'd o.b., 1 N.J. 508 (1948), NJLTA asserts that "specially worded and inserted"
language included in a "common type . . . printed [legal] form . . . must be taken
to express the intent of the parties over mere formal or printed matter." DEP
counters by citing Housing Authority of Atlantic City v. State, 188 N.J. Super.
145 (Ch. Div. 1983), which is not directly responsive. In that case, the court
only recognized the "established principle" that ambiguities in a grant "must be
strictly construed in favor of the State." Id. at 152 (citing Polhemus v. Bateman,
60 N.J.L. 163, 166 (E. & A. 1897)). We certainly recognize and agree with that
proposition, but the conveying language in this grant is unambiguous.
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[Boylan v. Boro. of Point Pleasant Beach, 410 N.J.
Super. 564, 569 (App. Div. 2009) (citations omitted).]
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 argument that
the grant unambiguously reserved the State's title to the land between the Lines
is without merit. R. 2:11-3(e)(1)(E).
We also reject DEP's arguments that construing the grant in this fashion
ignores the permitting provision, or that the judge placed too much emphasis on
this provision, thereby misconstruing the actual terms of the conveyance. The
permitting provision, located in the second full paragraph of page two of the
grant, prohibited Peninsula and its successors to "exclude the tidewaters" from
the conveyed lands, or "fill in, erect a pier . . . or otherwise improve or develop
. . . [or] appropriate the . . . lands under water to its own exclusive use" without
a permit from DEP. The agency argues this provision demonstrates that it
retained title to the property between the Lines, and it asserts a contrary
construction permits plaintiff to place fill between the Lines as he pleases. 4
4
In its brief and reply brief, DEP repeatedly asserts without citation that
plaintiff claims the right to "fill beyond the bulkhead line." The record does not
reveal any such claim.
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As the motion judge specifically noted, this provision only requires
plaintiff to obtain a permit whenever he seeks to take action, but it does not
authorize DEP to charge a license for the use of the property between the Lines.
He noted, and we agree, that, "[t]here is no language in the grant that reserves
for the State the right to charge license fees to the owner for future
development[s]." It suffices to say that the terms in the permitting provision are
not contrary to the express terms of the grant we already referenced.
Furthermore, it is undisputed that DEP can regulate plaintiff's use of the property
between the Lines through its permitting processes.
Alternatively, DEP urges us to consider other language in the grant that it
contends demonstrates the parties intended a conveyance of the riparian land
waterward to the Bulkhead Line only and no further. For example, in paragraph
two on page three of the grant (paragraph two), DEP reserved the right to
"change the exterior lines for solid filling and for piers, and fix the same further
from the shore . . . , even though such action may affect the lands hereby granted,
whenever the State may deem it necessary in the interest of navigation . . . [.]"
If "such exterior lines [were] placed out farther from the shore . . . , then" subject
to some limitation, Peninsula and its successors would, upon payment, have "the
exclusive right to apply for and receive a lease or grant of the additional land
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under water lying between the present exterior lines . . . and the new exterior
line or lines that may . . . be fixed . . . [.]"
DEP contends this reservation of rights in paragraph two, specifically, the
ability to charge for additional "under water [land] lying between the present
exterior lines," demonstrates DEP never conveyed the property between the
Lines to Peninsula. If it had, this language would be unnecessary, because
Peninsula already had title to the property.
DEP cites another provision, paragraph three on page three (paragraph
three), which reserved its right to "grant or lease any of the lands . . . lying in
front of the exterior line for solid filling or piers . . . referred to herein, . . . for
any . . . purpose; provided that such grant or lease shall not operate to interfere
with the reasonable use of and access by water to the lands under water hereby
granted . . . ." (Emphasis added). DEP contends that if the grant conveyed the
property between the Lines to Peninsula, paragraph three would permit the
agency to convey portions of the same land to someone else, as long as it did
not interfere with Peninsula's water access to its upland property.
By its own terms, paragraph two limits DEP's authority to "change the
exterior lines," i.e., the Bulkhead Line, the Pierhead Line or both, only when
"necessary in the interest of navigation." If DEP extended only the Pierhead
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Line further into the Bay, plaintiff would not automatically have title to the
additional underwater land. Rather, paragraph two requires him to lease or
purchase any additional land from DEP. Such a scenario is entirely consistent
with the grant's conveyance of the land between the Lines to plaintiff in the first
instance. Moreover, as amicus NJLTA notes, paragraph two, which is pre-
printed on the form of the grant, may be read merely as recognition of a riparian
proprietor's "preemptive right" to a grant or lease of lands in front of his or her
upland property. See N.J.S.A. 12:3-7; Leonard v. State Highway Dep't, 24 N.J.
Super. 376, 383 (Ch. Div. 1953), aff'd., 29 N.J. Super. 188 (App. Div. 1954).
Paragraph three, which is also pre-printed on the form of the grant, allows
the State to convey or lease underwater lands "in front of the exterior line for
solid filling or piers[,]" but not so as "to interfere with the reasonable use of and
access by water to the lands under water hereby granted." (Emphasis added).
By its terms, paragraph three prohibits the State from conveying or leasing
underwater lands, including those outside the Pierhead Line, to others if it
interferes with plaintiff's use of and access to his land. This paragraph,
therefore, may be construed consistently with the grant of fee simple title to
plaintiff of the underwater lands between the Lines. Moreover,
Conceding that the grant may vest in the grantee of
lands under water all the rights of the state in the lands
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granted, and thereby exclude the public rights which
previously existed, it seems equally clear that the
conveyance need not necessarily be so comprehensive.
The state, as well as the individual, may limit the extent
of its grant. The language of the conveyance must
measure what passes by it, and the grantee can acquire
nothing in excess of that because of the existence of a
power to enlarge the grant.
[Polhemus, 60 N.J.L. at 166.]
In short, the pre-printed form provisions of the grant include language that
supports two or more reasonable interpretations. However, the express terms of
the grant are clear and unambiguous. Any ambiguity may be construed
consistently with the specific, idiosyncratic terms of the grant, which are typed
on the form and explicitly reference a unique map, particularly drawn to convey
by metes and bounds description certain property to Peninsula.
To the extent we have not specifically addressed DEP's other arguments,
they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E).
Affirmed.
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