Appendix — Karam v. New Jersey Department of Environmental Protection
Supreme Court brief1999
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APPENDIX A — OPINION OF THE SUPREME
COURT OF NEW JERSEY DATED AND
DECIDED FEBRUARY 24, 1999
723 A.2d 943
EDMUND T. KARAM AND- BARBARA
KARAM, HUSBAND AND WIFE, PLAINTIFFS-
APPELLANTS, AND PETER DIBIAGIO AND
LAURA DIBIAGIO, HUSBAND AND WIFE,
INTERVENORS-APPELLANTS, v. STATE OF NEW
JERSEY, DEPARTMENT OF ENVIRONMENTAL
PROTECTION, ROBERT c. SHINN,
COMMISSIONER OF THE DEPARTMENT OF
ENVIRONMENTAL PROTECTION, DEFENDANTS-
RESPONDENTS, AND CHICAGO TITLE
INSURANCE COMPANY, A CORPORATION,
DEFENDANT.
Argued February 1, 1999 — Decided February 24, 1999.
On appeal from the Superior Court, Appellate Division,
whose opinion is reported at 308 N.J. Super. 225, 705 A.2d
1221 (1998).
PER CURIAM.
The judgment is affirmed, substantially for the reasons
expressed in Judge Baime’s opinion of the Appellate
Division, reported at 308 N.J. Super. 225, 705 A.2d 1221
(1998).
2a
Appendix A
For affirmance — Chief Justice PORITZ and Justices
HANDLER, POLLOCK, O’HERN, GARIBALDI, STEIN,
and COLEMAN — 7.
Opposed — None.
3a
APPENDIX B — OPINION OF THE SUPERIOR
COURT OF NEW JERSEY, APPELLATE DIVISION
DATED AND DECIDED FEBRUARY 13, 1998
705 A.2d 1221
EDMUND T. KARAM AND BARBARA KARAM, H/W,
PLAINTIFFS-RESPONDENTS, v. STATE OF NEW
JERSEY, DEPARTMENT OF ENVIRONMENTAL
PROTECTION, ROBERT C. SHINN, COMMISSIONER
OF THE DEPARTMENT OF ENVIRONMENTAL
PROTECTION, DEFENDANTS-APPELLANTS, AND
CHICAGO TITLE INSURANCE COMPANY, A
CORPORATION, DEFENDANT.
PETER DIBIAGIO AND LAURA DIBIAGIO,
H/W, INTERVENOR-RESPONDENTS.
Superior Court of New Jersey
Appellate Division
Argued January 22, 1998 — Decided February 13, 1998.
aa * *
Before Judges BAIME, WEFING, and
BRAITHWAITE.
BAIME, P.J.A.D.
This is a regulatory taking case. In 1924, Charles and
May Schweinert purchased from the State the riparian land
4a
Appendix B
adjoining their upland property situated along the
Manasquan River. Under the riparian grant, the tide-flowed
land could only be used for construction of a dock or
recreational pier. The grant required common ownership
of the upland property and the riparian land. Although the
Waterfront and Harbor Facilities Act of 1914 (N.J.S.A.
12:5-1 to -11), more commonly known as the Waterfront
Development Act, was in effect at the time the riparian grant
was issued and required State approval as a condition for
improving the tide-flowed land, the Schweinerts never
applied for a permit and never sought to erect a dock on
their property. Plaintiffs purchased both the upland and
riparian lands in 1993, and sometime thereafter applied to
the Department of Environmental Protection (DEP) for a
permit. By this time, however, the riparian land was
designated a “special restricted area” because it harbored
high densities of shellfish. Following the DEP’s denial of
their application for a development permit, plaintiffs
brought this inverse condemnation action. The Chancery
Division granted partial summary judgment in plaintiffs’
favor and certified its order as final. The State appeals. We
reverse.
The salient facts are not in dispute. On May 19, 1924,
the Board of Commerce and Navigation conveyed to the
Schweinerts the riparian land adjoining their upland
property, restricting its use to the erection of a pier or dock.
Although the upland and riparian parcels have consistently
been delineated as separate lots on the municipal tax map
and in the various deeds executed over the years, the grant
Sa
Appendix B
required common ownership of the lands or the right to the
tide-flowed property would become void.
Because the Waterfront Development Act was in place
at the time the riparian grant was issued, a development
permit was required as a condition for improving the
tide-flowed property. The history of the regulatory
framework promulgated under the Act is described at length
in Last Chance Development Partnership v. Kean, 232
N.J.Super. 115, 556 A.2d 796 (App.Div.1989), aff'd, 119
N.J. 425, 575 A.2d 427 (1990), and need not be recited here.
Ironically, the impetus for the statutory scheme came from
the reports of the New Jersey Harbor Commission, a body
appointed by Governor Woodrow Wilson, that
recommended rapid and orderly development of the
waterways to facilitate commerce and navigation. In the
early 1970’s, however, governmental focus shifted in favor
of wildlife conservation and environmental protection. In
1973, the Legislature enacted the Coastal Area Facility
Review Act (CAFRA), see N.J.S.A. 13:19-1 to -21, which,
among other things, was designed to assure that any future
development would be “reasonably consistent and
compatible with the natural laws governing the physical,
chemical and biological environment of the coastal area.”
N.J.S.A. 13:19-2. The DEP was empowered to adopt and
amend rules and regulations to effectuate the purposes of
the Act. N.J.S.A. 13:19-17. Pursuant to that authority, the
DEP adopted N.J.A.C. 7:7E-3.2(d), which prohibits the
construction of docks in certain classified waters.
In 1987, the Manasquan River was classified as a
“special restricted area,” meaning that it harbored moderate
6a
Appendix B
to high densities of shellfish that were uncontaminated and
fit for human consumption. See N.J.A.C. 7:12-1.2 and
N.J.A.C. 7:12-3.2. In 1993, the DEP’s Bureau of
Shellfisheries again surveyed the Manasquan River and
reached the same conclusion. Because the river serves as
an active shellfish habitat, erection of a pier or dock in the
tide-flowed land is prohibited.
Over the years, the Schweinerts subdivided their
property along the river, always selling off the upland land
with the riparian parcel to each purchaser. Before the river
was Classified as a “special restricted area,” many of these
property owners erected docks. Plaintiffs purchased the
upland and riparian properties in 1993. Although the DEP’s
classification of the river as a “special restricted area” was
a matter of public record at the time of the purchase,
plaintiffs were unaware of the prohibition against the
construction of docks. Relying on their riparian grant and
the docks that had previously been erected on neighboring
properties, plaintiffs applied for a development permit. On
May 11, 1993, the DEP denied plaintiffs’ application.
Plaintiffs brought this action. During the litigation,
plaintiffs sold the upland and riparian lands for $1,100,000,
conditioned upon their continued pursuit of this inverse
condemnation claim. In a brief oral opinion, the Chancery
Division granted plaintiffs’ motion for partial summary
judgment, finding that the DEP’s denial of a development
permit deprived the property owners of any viable economic
use of the riparian grant. This appeal followed.
Ta
Appendix B
II.
We deal again with the complexities attendant to claims
of inverse condemnation. Commonly, constitutional
questions involve no more than a value judgment upon a
factual complex rather than an evident application of a
precise rule of law. Inevitably, resolution of such issues
reflect the seasoning and experience of the one who judges,
which in turn hinge upon the concerns and problems
confronting the court when the issue is presented and
decided. This observation is particularly compelling in the
context of Fifth and Fourteenth Amendment “taking”
jurisprudence, where the courts often engage in “ad hoc,
factual inquiries,” determining issues on a case-by-case
basis. Kaiser Aetna v. United States, 444 U.S. 164, 175,
100 S.Ct. 383, 390, 62 L.Ed.2d 332, 343 (1979); see also
Gardner v. New Jersey Pinelands Comm'n, 125 N.J. 193,
205, 593 A.2d 251 (1991) (application of takings principles
requires “fact-sensitive” examination of the regulatory
scheme and the extent to which it interferes with property
rights and interests). The result is a welter of seemingly
irreconcilable opinions, each seeking to alleviate the tension
between the competing values involved. The problem is
accentuated because decisions have been rendered over the
meandering course of history, and societal concerns given
priority by one generation are often considered of less
consequence by the next. In resolving the issue before us,
we tread upon uncertain and constantly shifting terrain.
Prior to Justice Holmes’ opinion in Pennsylvania Coal
Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322
(1922), “it was generally thought that the Takings Clause
8a
Appendix B
reached only a ‘direct appropriation’ of property, Legal
Tender Cases, 12 Wall. 457, 551, 20 L.Ed. 287 (1871), or
the functional equivalent of a ‘practical ouster of [the
owner’s] possession,’ Transportation Co. v. Chicago, 99
U.S. 635, 642, 25 L.Ed. 336 (1879).” Lucas v. South
Carolina Coastal Council, 505 U.S. 1003, 1014, 112 S.Ct.
2886, 2892, 120 L.Ed.2d 798, 812 (1992). Justice Holmes
recognized in Mahon that if private property were subject
to unbridled, uncompensated intrusion under the police
power, “the natural tendency of human nature [would be]
to extend the qualification more and more until at last private
property disappear[ed].” 260 U.S. at 415, 43 S.Ct. at 160,
67 L.Ed. at 326. The principle was thus adopted that “while
property may be regulated to a certain extent, if regulation
goes too far it will be recognized as a taking.” /bid. But
land use law teems with activity which every day touches
the lives of millions, and there is no clear line of demarcation
separating overly intrusive regulation that requires just
compensation, and mild burdens adjusting the benefits of
economic life that do not.
The question of what constitutes a “taking” for purposes
of the Fifth Amendment “has proved to be a problem of
considerable difficulty.” Penn Central Transp. Co. v. City
of New York, 438 U.S. 104, 123, 98 S.Ct. 2646, 2659, 57
L.Ed.2d 631, 648 (1978). The Supreme Court “has been
unable to develop any ‘set formula’ for determining when
‘justice and fairness’ require that economic injuries caused
by public action be compensated by the government... .”
Ibid. (citing Goldblatt v. Town of Hempstead, 369 U.S. 590,
594, 82 S.Ct. 987, 990, 8 L.Ed.2d 130, 133-34 (1962)).
9a
Appendix B
In determining an appropriate analytical framework, we
look first to the intendment of the “takings” clause. The
purpose of this clause is “not to limit the governmental
interference with property rights per se, but rather to secure
compensation in the event of otherwise proper interference
amounting to a taking.” First English Evangelical Lutheran
Church of Glendale v. County of Los Angeles, 482 U.S. 304,
315, 107 S.Ct. 2378, 2385-86, 96 L.Ed.2d 250, 264 (1987).
Government action that works a taking implicates a
“constitutional obligation to pay just compensation” to the
property’s owner. Armstrong v. United States, 364 U.S. 40,
49, 80 S.Ct. 1563, 1569, 4 L.Ed.2d 1554, 1561 (1960).
Government may not compel a property owner alone to bear
public burdens which, in all fairness and justice, should be
borne by the public as a whole. J/bid. But much, if not all,
land use regulation adjusts the benefits and burdens of
property ownership. Penn Central Transp. Co. v. City of
New York, 438 U.S. at 124, 98 S.Ct. at 2659, 57 L.Ed.2d at
648. “Government hardly could go on if, to some extent,
values incident to property could not be diminished without
paying for every such change in the general law.”
Pennsylvania Coal Co. v. Mahon, 260 U.S. at 413, 43 S.Ct.
at 160, 67 L.Ed. at 325. Even in cases where the land use
regulation causes some diminution in the value of an
owner’s property, the legislation “secures an ‘average
reciprocity of advantage’ to everyone concerned,” and
government is under no obligation to pay compensation for
the resulting reduction. Lucas v. South Carolina Coastal
Council, 505 U.S. at 1018, 112 S.Ct. at 2894, 120 L.Ed.2d
at 814 (quoting Pennsylvania Coal Co. v. Mahon, 260 U.S.
at 415, 43 S.Ct. at 160, 67 L.Ed. at 326); see Agins v. City
of Tiburon, 447 U.S. 255, 262, 100 S.Ct. 2138, 2142, 65
10a
Appendix B
L.Ed.2d 106, 113 (1980). However, the functional basis for
permitting government, by regulation, to affect property
values without compensation “does not apply to the
relatively rare situations where [the state] has deprived a
landowner of all economically beneficial uses.” Lucas v.
South Carolina Coastal Council, 505 U.S. at 1018, 112 S.Ct.
at 2894, 120 L.Ed.2d at 814. In such cases, the effect of the
regulation may be likened to a direct invasion of the property
or the practical ouster of the owner’s possession. Thus,
where government enacts legislation or adopts a regulation
that denies an owner substantially all economic use of his
or her land, a taking has occurred and the property owner
must be compensated. /d. at 1028-29, 112 S.Ct. at 2900,
120 L.Ed.2d at 820-21; see also Hodel v. Virginia Surface
Mining & Reclamation Ass'n, Inc., 452 U.S. 264, 297
n. 40, 101 S.Ct. 2352, 2371 n. 40, 69 L.Ed.2d 1, 29 n. 40
(1981); Agins v. City of Tiburon, 447 U.S. at 262, 100 S.Ct.
at 2142, 65 L.Ed.2d at 113.
In order to determine what was “taken” by the force of
a statute or regulation, one must know what the property
owner had originally. Stated differently, the antecedent
inquiry into the nature of the owner’s estate accords with
our “takings” jurisprudence “which has traditionally been
guided by the understandings of our citizens regarding the
content of... the ‘bundle of rights’ that they acquire when
they obtain title to property.” Lucas v. South Carolina
Coastal Council, 505 U-S. at 1027, 112 S.Ct. at 2899, 120
L.Ed.2d at 820. This inquiry raises the issue that cases and
legal commentators have described as the problem of
defining the “denominator.” In Keystone Bituminous Coal
Ass'n v. DeBenedictis, 480 U.S. 470, 497, 107 S.Ct. 1232,
lla
Appendix B
1248, 94 L.Ed.2d 472, 496 (1987), the Supreme Court
explained that “[b]Jecause our test for regulatory taking
requires [comparison of] the value that has been taken from
the property with the value that remains in the property,
one of the critical questions is determining how to define
the unit of property ‘whose value is to furnish the
denominator of the fraction.’ ” (quoting Frank I. Michelman,
Property, Utility, and Fairness: Comments on the Ethical
Foundations of ‘Just Compensation” Law, 80 Harv. L.Rev.
1165, 1192 (1967)). We will return to this subject later in
our opinion. But here, we are concerned with the broader
concept of property ownership — the sticks that make up
the “bundle of rights” acquired by the owner when property
is conveyed to him. In determining the effect of a statute or
regulation on an owner’s property rights, we look to whether
the regulatory action interferes with the owner’s “distinct
investment-backed expectations” and to what extent such
expectations were reasonable. Penn Central Transp. Co. v.
City of New York, 438 U.S. at 124, 125, 98 S.Ct. at 2659,
57 L.Ed.2d at 648. We also look to whether the economic
“right” allegedly destroyed by the regulation was vested in
the owner or within the power of the State to regulate under
the common law nuisance doctrine. See Lucas v. South
Carolina Coastal Council, 505 U.S. at 1029, 112 S.Ct. at
2900, 120 L.Ed.2d at 821.
To recapitulate, in determining whether an owner’s
property has been “taken,” we are to consider: (1) whether
the regulation has deprived the owner of virtually all
economically viable uses of the property, (2) whether the
property owner had any distinct investment-backed
expectations at the time of acquiring the property that were
12a
Appendix B
destroyed by the force of the regulation, and (3) whether
the interest claimed to have been “taken” was vested with
the owner, as a matter of state property law, and not within
the power of the State to regulate under common law
nuisance. Here, the DEP does not claim that the proposed
use of the riparian land, erection of a dock, constitutes a
common law nuisance that may be proscribed by the State.
Thus, our inquiry focuses on the first two factors.
A.
We first consider the economic impact of the denial of
the development permit. As stated above, the mere
diminution of land value itself does not constitute a taking.
Gardner v. New Jersey Pinelands Comm'n, 125 N.J. at 210,
593 A.2d 251. Likewise, impairment of the marketability
of land alone does not effect a taking. Jbid. Also, restrictions
on uses do not necessarily result in takings even though
they reduce income or profits. /bid.; see also Southern
Burlington County NAACP v. Township of Mount Laurel,
92 N.J. 158, 273 and n. 34, 456 A.2d 390 (1983). A
regulatory scheme will be upheld against a claim of inverse
condemnation “unless it denies ‘all practical use’ of
property, or ‘substantially destroys the beneficial use of
private property,’ or does not allow an ‘adequate’ or ‘just
and reasonable’ return on investment.” Gardner v. New
Jersey Pinelands Comm'n, 125 N.J. at 211, 593 A.2d 251
(citations omitted). “[O]ur courts have applied the standard
that focuses on the beneficial or economic uses allowed to
a property in the context of particularized restraints designed
to preserve the special status of distinctive property and
sensitive environmental regions.” Jbid. (citing Jn re Egg
13a
Appendix B
Harbor Assocs., 94 N.J. 358, 464 A.2d 1115 (1983); Spiegle
v. Borough of Beach Haven, 46 N.J. 479, 218 A.2d 129,
cert. denied, 385 U.S. 831, 87 S.Ct. 63, 17 L.Ed.2d 64
(1966); Orleans Builders & Developers v. Byrne, 186
N.J.Super. 432, 453 A.2d 200 (App.Div.1982); Jn re
Loveladies Harbor, Inc., 176 N.J.Super. 69, 422 A.2d 107
(App.Div.1980), certif: denied, 85 N.J. 501, 427 A.2d 588
(1981); New Jersey Builders Ass'n v. Department of Envitl.
Protection, 169 N.J.Super. 76, 404 A.2d 320 (App.Div.),
certif. denied, 81 N.J. 402, 408 A.2d 796 (1979); Toms River
Affiliates v. Department of Envtl. Protection, 140 N.J.Super.
135, 355 A.2d 679 (App.Div.), certif. denied, 71 N.J. 345,
364 A.2d 1077 (1976); Sands Point Harbor, Inc. v. Sullivan,
136 N.J.Super. 436, 346 A.2d 612 (App.Div.1975)).
Classification of the tide-flowed land as a “special
restricted area” with the consequent denial of a development
permit clearly destroys the only beneficial use of plaintiffs’
riparian land. The terms of the riparian grant are clear —
“{the] land. . . is not to be used for any purpose whatsoever
except the erection of a pier....” The effect of the
regulatory scheme, therefore, is to sacrifice all economically
beneficial uses in the riparian grant in the name of the
common good. Were we to consider the riparian grant alone
as the property interest against which the loss of value is to
be measured, we would be obliged to sustain plaintiffs’
claim of inverse condemnation because the effect of the
regulation is to compel the property owners to leave the
tide-flowed land entirely idle. Conversely, were we to
consider the upland and riparian parcels as a single unit of
property against which the loss of value is to be measured,
we would be required to reject plaintiffs’ claim of inverse
14a
Appendix B
condemnation because the effect of the regulation is merely
to destroy a somewhat minor “strand” or “stick” in
- plaintiffs’ overall bundle of rights. See Andrus v. Allard,
444 U.S. 51, 65-66, 100 S.Ct. 318, 327, 62 L.Ed.2d 210,
222-23 (1979). We are thus faced with the “denominator”
problem to which we alluded earlier. More specifically, the
critical question is “how to define the unit of property
‘whose value is to furnish the denominator of the fraction.’ ”
Keystone Bituminous Coal Ass'n. v. DeBenedictis, 480 U.S.
at 497, 107 S.Ct. at 1248, 94 L.Ed.2d at 496.
The question has received somewhat uneven treatment
in our reported opinions. In Morris County Land
Improvement Co. v. Township of Parsippany-Troy Hills,
40 N.J. 539, 542, 193 A.2d 232 (1963), the plaintiff owned
a large tract of land. The undeveloped wetlands portion was
located in Parsippany-Troy Hills, and the adjoining
developed land was located in neighboring Hanover. /bid.
The portion of the plaintiff's property in Parsippany-Troy
Hills was subject to a zoning classification which precluded
any viable use of the wetlands property. /d. at 543-44, 193
A.2d 232. The Court held that this zoning scheme, if
unmodified, would constitute a taking of private property
requiring fair compensation. /d. at 554-57, 193 A.2d 232.
In reaching this conclusion, the Court clearly assumed that
the property unit against which the loss was to be measured
was only the undeveloped land situated in Parsippany-Troy
Hills. The Court neither considered nor discussed the larger
adjoining property located in Hanover. Subsequent
decisions have questioned whether Morris County Land
Improvement Co. remains good law in all respects. See
Gardner v. New Jersey Pinelands Comm'n, 125 N.J. at
15a
Appendix B
213-14, 593 A.2d 251; AMG Assocs. v. Township of
Springfield, 65 N.J. 101, 112 n. 4, 319 A.2d 705 (1974).
Without alluding to the “denominator” problem in
American Dredging Co. v. Department of Environmental
Protection, 169 N.J.Super. 18, 404 A.2d 42 (App.Div.1979),
and Jn re Lovcladies Harbor, Inc., 176 N.J.Super. 69, 422
A.2d 107, we assumed, without discussion of the question,
that the fractional denominator should include all of the
contiguous acreage under a single ownership. We last
discussed this issue in East Cape May Associates v.
Department of Environmental Protection, 300 N.J.Super.
325, 693 A.2d 114 (App.Div.1997). Writing for the court,
Judge Brochin analyzed the relatively few decisions that
have considered the subject, characterizing the present law
as largely “unsettled.” Jd. at 353, 693 A.2d 114. Because
the record was inadequate, we reached no conclusions, but
instead remanded the matter for further development of the
facts. /bid. In the course of our opinion, we posed a lengthy
list of questions noting that the answers might be helpful in
“the formulation of [a] rule” to determine the property unit
against which the owner’s loss could be measured. /d. at
354, 693 A.2d 114. Most of these questions were
fact-specific to East Cape May’s claim of inverse
condemnation. Suffice it to say that the information we
sought pertained to the history of the ownership and
development of the property.
This was in accord with the decisions of other
jurisdictions which have generally considered the
composition of the denominator of the taking fraction as
consisting of all of the claimant’s contiguous acreage in
l6a
Appendix B
the same ownership. See, e.g., Jentgen v. United States, 228
Ct.Cl. 527, 657 F.2d 1210 (1981), cert. denied, 455 U.S.
1017, 102 S.Ct. 1711, 72 L.Ed.2d 134 (1982); Deltona Corp.
v. United States, 228 Ct.Cl. 476, 657 F.2d 1184 (1981),
cert. denied, 455 U.S. 1017, 102 S.Ct. 1712, 72 L.Ed.2d
135 (1982); Zealy v. City of Waukesha, 201 Wis.2d 365,
548 N.W.2d 528 (1996). This is not the universal rule.
Several decisions have held that the denominator of the
taking fraction is the portion of the property subject to the
confiscating regulation. See, e.g., Loveladies Harbor, Inc.
v. United States, 28 F.3d 1171 (Fed.Cir.1994); Florida Rock
Indus., Inc. v. United States, 18 F.3d 1560 (Fed.Cir. 1994),
cert. denied, 513 U.S. 1109, 115 S.Ct. 898, 130 L.Ed.2d
783 (1995); K & K Constr., Inc. v. Department of Natural
Resources, 217 Mich.App. 56, 551 N.W.2d 413
(Mich.Ct.App.1996), appeal granted, _ Mich. _, 562
N.W.2d 788 (1997); Volkema v. Department of Natural
Resources, 214 Mich.App. 66, 542 N.W.2d 282
(Mich.Ct.App.1995), appeal held in abeyance, _ Mich. _,
562 N.W.2d 789 (1997). However, these cases involved
large tracts of acreage that had been segmented into smaller
parcels for development at different times, and either
because of the configuration of the property or its history,
the divided parcels had been considered as separate and
distinct entities or units. Applying a “flexible approach,
designed to account for such factual nuances,” Loveladies
Harbor, Inc. v. United States, 28 F.3d at 1181, the respective
courts found it logical to treat each parcel separately for
determining whether the particular regulation affected a
“taking” requiring just compensation. See Quirk v. Town
of Boston, 140 N.H. 124, 130-31, 663 A.2d 1328, 1332-33
(1995).
17a
Appendix B
Recognizing the fact-sensitive question before us, we
are convinced that the adjoining upland and riparian lands
must be considered a single property unit. As we noted
earlier, the riparian grant requires that the uplands and
tide-flowed property be commonly owned. Indeed, the
riparian grant was contingent upon common ownership and
was to be “voided” or forfeited if the contingency was not
satisfied. Moreover, the right permitted under the riparian
grant, the erection of a dock, was a mere incident to use of
the upland property. So too, as the Schweinert tract was
subdivided over the years, the upland and riparian properties
were always bought and sold as a single unit. Plaintiffs
purchased both properties in a single contract of sale, and
sold the land to the present owners as a single unit. Finally,
the properties are assessed for tax purposes as a single lot.
In both law and fact, the properties are inextricably
intertwined. We, thus, conclude that the Chancery Division
erred when it considered the riparian land as a separate
parcel, wholly distinct from the uplands portion.
Viewing the uplands and tide-flowed lands as a single
property, it is apparent that denial of the development permit
did not effect a taking. While plaintiffs contend that the
riparian grant should be considered separate and distinct,
they concede that no taking occurred, if the upland and
tide-flowed lands are considered the “property unit” upon
which the effect of the regulation is to be measured.
B.
For the sake of completeness, we next consider whether
plaintiffs had a reasonable investment-backed expectation
18a
Appendix B
that was destroyed by the denial of the development permit.
Whether or not the property owner’s expectations are
reasonable “depend to a significant extent on whether [he]
had notice in advance of [his] investment decision that the
governmental regulations ... had been or would be
enacted.” East Cape May Assocs. v. Department of Envtl.
Protection, 300 N.J.Super. at 337, 693 A.2d 114.
We first consider the nature of the property that was
the subject of the riparian grant. Under the public trust
doctrine, “ownership of and dominion and sovereignty over
lands covered by tide waters .. . belong to the respective
states within which they are found... .” //linois Central
R.R. Co. v. Illinois, 146 U.S. 387, 435, 13 S.Ct. 110, 111,
36 L.Ed. 1018, 1036 (1892). Although the states have the
inherent authority to convey riparian grants to private
persons, see Borough of Neptune City v. Borough of Avon-
by-the-Sea, 61 N.J. 296, 303-05, 294 A.2d 47 (1972), the
sovereign never waives its right to regulate the use of public
trust property. J/linois Central R.R. Co. v. Illinois, 146 U.S.
at 453, 13 S.Ct. at 118, 36 L.Ed at 1042; see also
Contributors to Pennsylvania Hosp. v. City of Philadelphia,
245 U.S. 20, 38 S.Ct. 35, 62 L.Ed. 124 (1917).
It is thus plain that the 1924 riparian grant from the
State to the Schweinerts did not create an absolute and
perpetual right to construct a dock, free from all legislative
and regulatory intervention. Indeed, as we pointed out
earlier, the Waterfront Development Act was in place at
the time the Schweinerts acquired the riparian grant.
Although the focus of the regulatory scheme adopted under
the Act shifted from development to preservation, the State
2 ee de
pon nthe tig i Tiles al Ae I te RS.
19a
Appendix B
plainly had “reserve powers” to alter or change the law,
even after making the covenant with the Schweinerts. See
A.P. Smith Mfg. Co. v. Barlow, 26 N.J. Super. 106, 123-24,
97 A.2d 186 (Ch.Div.), aff'd, 13 N.J. 145, 98 A.2d 581
(1953). And clearly, the State’s emerging policy with
respect to shellfish protection fell within its police powers
under the public trust doctrine. See Jn re Loveladies Harbor,
Inc., 176 N.J.Super. at 77, 422 A.2d 107.
We stress that the prohibition against the erection of
docks along the Manasquan River was a matter of public
record long before plaintiffs purchased the property. The
prohibition was expressly set forth in a published regulation.
Specifically, N.J.A.C. 7:12-2.1(a)(5) and N.J.A.C.
7:12-3.2(a) denominate the area in which plaintiffs’ property
is situated as a “special restricted area.” N.J.A.C. 7:7E-3.2(d)
proscribes the construction of a dock in waters so classified.
Beyond this, the DEP’s regulations provide a
pre-application review process under which parties can
obtain an initial determination even before applying for a
development permit. See N.J.A.C. 7:7-3. Plaintiffs never
availed themselves of this nght.
The crucial fact is that since the early 1970’s the
regulatory jurisdiction of the DEP has substantially
expanded and the substantive criteria necessary for granting
a development permit has significantly stiffened. The
decision to shift public policy from commerce to
environmental protection and wildlife preservation was not
made by a faceless bureaucrat somewhere within the
administrative labyrinth of a nameless office building in
20a
Appendix B
Trenton. Instead, it was articulated by our Legislature in
carefully crafted enactments and heralded by the Governor
with great fanfare. Plaintiffs must be held to have had
constructive notice of these developments.
We recognize that rights in property pass from one
owner to the next. Thus, the right of a property owner to
fair compensation when his property is zoned into inutility
by changes in the zoning law passes to the next owner
despite the latter’s knowledge of the impediment to
development. See Urban v. Planning Board of Manasquan,
124 N.J. 651, 592 A.2d 240 (1991); Moroney v. Mayor and
Council of Old Tappan, 268 N.J.Super. 458, 633 A.2d 1045
(App.Div.1993), certif. denied, 136 N.J. 295, 642 A.2d 1004
(1994). But plaintiff's predecessors in title, the Schweinerts,
never had the absolute right to construct a dock; it was
always conditioned on the requirement of obtaining a
development permit. While the conditions for obtaining a
development permit have undoubtedly become more
onerous in the seventy-odd years that have passed since the
riparian grant was issued, plaintiffs could not have
reasonably expected that they would be immune from all
changes in the law during that period.
We are thus convinced that the Chancery Division erred
by granting partial summary judgment. We thus reverse the
judgment and remand the matter to the Chancery Division.
WEFING, J.A.D., concurring.
I concur in the result reached by my colleagues and
fully subscribe to their view that “the adjoining upland and
21a
Appendix B
riparian lands must be considered a single property unit”
| and that “[i]n both law and fact, the properties are
inextricably intertwined.” (Op. at 239). At the oral argument
of this matter, both parties agreed that our resolution of
that single issue would be dispositive. I share that
assessment and thus find it unnecessary to consider the
additional question of whether plaintiffs had a reasonable
investment-backed expectation that was destroyed by the
refusal of the DEP to issue a permit for the construction of
a dock or pier.
22a
APPENDIX C — ORDER OF THE SUPERIOR
COURT OF NEW JERSEY, MONMOUTH COUNTY,
LAW DIVISION DENYING MOTION FOR
RECONSIDERATION DATED AND
FILED NOVEMBER 13, 1996
PETER VERNIERO
Attorney General of New Jersey
Attorney for Defendant
Department of Environmental Protection
R.J. Hughes Justice Complex
CN 093
Trenton, New Jersey 08625
By: Alyssa Pearlman Wolfe
Deputy Attorney General
(609)633-0918
SUPERIOR COURT OF NEW JERSEY
LAW DIVISION —- MONMOUTH COUNTY
DOCKET NO. L-4960-95
Civil Action
EDMUND T. KARAM and BARBARA KARAM, h/w,
Plaintiffs,
v.
STATE OF NEW JERSEY, DEPARTMENT OF
ENVIRONMENTAL PROTECTION; ROBERT C.
SHINN, Commissioner of the Department of Environmental
Protection; and CHICAGO TITLE INSURANCE
COMPANY, a Corporation,
Defendants.
23a
Appendix C
ORDER DENYING MOTION FOR
RECONSIDERATION
This matter having been opened to the Court by Peter
Verniero, Attorney General of New Jersey, by Alyssa
Pearlman Wolfe, Deputy Attorney General, appearing, upon
the State’s Motion for Reconsideration, and Richard M.
Hluchan, Esquire, attorney for Plaintiffs, appearing in
opposition, and the court having considered the motion
papers, briefs, and affidavits of the parties, and having heard
the argument of counsel, and for good cause, and for the
reasons set forth on the record in open court, it is hereby
ORDERED this 13th day of November, 1996, that:
1. The State’s Motion for Reconsideration of the
court’s previous Order, dated August 23, 1996, granting
summary judgment in favor of Plaintiffs as to Counts II
and III of the Complaint, is hereby denied;
2. The court’s previous Order dated August 23, 1996,
is hereby supplemented as follows:
a. The property taken by Defendant State of New
Jersey, Department of Environmental! Protection, is
described in the Deed as Tract Two (2) and on the tax
map as Lot 5.01, Block 99.03 in the Borough of Brielle,
Monmouth County, New Jersey;
b. The date the taking occurred is June 25, 1995,
the date the Commissioner of the Department of
Environmental Protection issued a final decision
24a
Appendix C
affirming the denial of the waterfront development
permit;
c. The appointment of condemnation
commissioners shall be stayed pending any appeal.
Moreover, Counts I, IV, and V of the Complaint shall
be stayed pending any appeal.
3. Pursuant to R. 4:42-2, it is hereby certified that the
court’s Order of August 23, 1996, insofar as it granted
summary judgment in favor of Plaintiffs as to Counts II
and III of the Complaint, is a final judgment which is
appealable to the Superior Court, Appellate Division.
4. Pursuant to NJSA 20:3-26(c), the Court may order
Defendant to pay Plaintiffs’ reasonable attorney’s fees upon
the submission of an affidavit describing services rendered.
This provision is without prejudice to Defendant’s position
that no further attorney’s fees are to be awarded for the
valuation proceedings, and is also without prejudice to
Plaintiffs’ position that N.J.S.A. 20:3-26(c) entitles them
to attorney’s fees for this entire matter, including the
valuation proceeding.
s/ Patrick J. McGann, Jr.
Patrick J. McGann, Jr., J.S.C.
25a
APPENDIX D — ORDER OF THE SUPERIOR
COURT OF NEW JERSEY, MONMOUTH COUNTY,
LAW DIVISION GRANTING PARTIAL SUMMARY
JUDGMENT AS TO LIABILITY ON COUNTS II AND
III OF THE COMPLAINT DATED AND
FILED AUGUST 23, 1996
LEVIN & HLUCHAN, P.C.
By: Richard M. Hluchan
Jeffrey S. Beenstock
1200 Laurel Oak Road
Suite 100
Voorhees, New Jersey 08043
(609) 627-8555
Attorneys for Plaintiffs, Edmund T. Karam and
Barbara Karam
SUPERIOR COURT OF NEW JERSEY
MONMOUTH COUNTY
LAW DIVISION
CIVIL ACTION
DOCKET NO. L-4960-95
EDMUND T. KARAM, and BARBARA KARAM,
husband and wife,
Plaintiffs,
26a
Appendix D
STATE OF NEW JERSEY, DEPARTMENT OF
ENVIRONMENTAL PROTECTION; ROBERT C.
SHINN, Commissioner of the Department of Environmental
Protection; and CHICAGO TITLE INSURANCE
COMPANY, a Corporation,
Defendants.
ORDER GRANTING PARTIAL SUMMARY
JUDGMENT AS TO LIABILITY ON COUNTS II
AND III OF THE COMPLAINT
This matter having been opened to the Court by Levin
& Hluchan, P.C., attorneys for Plaintiffs Edmund T. Karam
and Barbara Karam, on a Motion for Partial Summary
Judgment, and the Court having considered the motion
papers, briefs, and affidavits of the parties, and having heard
the argument of counsel, and for good cause, it is hereby
ORDERED this 23rd day of August, 1995 that
Summary Judgment is hereby granted as to liability on
Counts II and III of the Complaint in favor of plaintiffs and
against defendant New Jersey Department of Environmental
Protection based on the Court’s finding that the denial of
the Karams’ waterfront development permit application
constitutes a “taking” as a matter of law as to the Karams’
riparian land;
IT IS FURTHER ORDERED that this matter shall be
submitted to Condemnation Commissioners for a
determination of damages pursuant to N.J.S.A. 20:3-12(b);
and
27a
Appendix D
IT IS FURTHER ORDERED that plaintiffs shall serve
a copy of this Order on all other parties within 7 days of
receipt of this Order by plaintiffs’ counsel.
s/ Patrick J. McGann, Jr.
ISL.
28a
APPENDIX E — FINAL DECISION OF THE
STATE OF NEW JERSEY, DEPARTMENT OF
ENVIRONMENTAL PROTECTION
DATED JUNE 22, 1995
State of New Jersey
Department of Environmental Protection
Christine Todd Whitman Robert C. Shinn, Jr.
Governor Commissioner
OAL DOCKET NO. ESA 8879-93
AGENCY DOCKET NO. WFD-1308-93-0005.1
EDMUND KARAM,
Petitioner,
v.
DEPARTMENT OF ENVIRONMENTAL PROTECTION,
Respondent.
FINAL DECISION
The Initial Decision of Administrative Law Judge
Joseph F. Fidler, dated April 27, 1995, is affirmed for the
reasons stated therein. This denial, however, is without
prejudice to Petitioner’s right to reapply for a permit in the
future should the Shellfish Habitat policy be modified in
light of the results of the Department’s ongoing efforts to
study the effect of residential docks on shellfish.
29a
Appendix E
Dated: 6/22/95 s/ Robert C. Shinn
Robert C. Shinn, Commissioner
Department of Environmental
Protection
30a
APPENDIX F — INITIAL DECISION OF THE STATE
OF NEW JERSEY, OFFICE OF ADMINISTRATIVE
LAW DATED AND DECIDED APRIL 27, 1995
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
OAL DKT. NO. ESA 8879-93
AGENCY DKT. NO. WFD-1308-93-0005. 1
EDMUND KARAM,
Petitioner,
Vv.
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Respondent.
INITIAL DECISION
~ » *
Record Closed: January 27, 1995
Decided: April 27, 1995
BEFORE JOSEPH F. FIDLER, ALJ:
STATEMENT OF THE CASE
Edmund Karam (“petitioner”) seeks to construct a
wooden dock, including 936 square feet over the water on
0 Coie Dae eo edt 2A et Rae BO var
er Aa Sains De
31a
Appendix F
riparian land in the Manasquan River, in Brielle, New
Jersey. He has appealed from a denial of his application for
a waterfront development permit under the Waterfront and
Harbor Facilities Act, N.J.S.A. 12:5-3 (the “Act”). The
Department denied the application on the grounds that the
proposed project did not comply with the rules governing
development within shellfish beds (now, “shellfish habitat”)
as set forth at N.J.A.C. 7:7E-3.2 and N.J.A.C. 7:12-2.1(a)1ii.
PROCEDURAL HISTORY
In February 1993, petitioner applied for a waterfront
development permit. On May 11, 1993, the Department of
Environmental Protection (“DEP”) denied the application.
The matter was transmitted to the Office of Administrative
Law for determination as a contested case, pursuant to
N.J.S.A. 52:14-F-1 to -13, on September 20, 1993.
Administrative Law Judge Beatrice S. Tylutki conducted
an early settlement conference on April 6, 1994, but no
settlement was reached. The matter was thereafter assigned
to me for hearing.
Petitioner moved for summary decision, contending that
he has the right to construct a pier as a matter of law,
and he sought an order directing the Department of
Environmental Protection (“DEP”) to permit construction
of the pier on his riparian land. By Order entered December
14, 1994, the motion was denied.' The hearing was then
1. In his post-hearing submissions, the petitioner renewed
arguments raised in the motion for summary decision. For ease of
reference, the pertinent portion of the Order Denying Summary
Decision appears here as an appendix.
32a
Appendix F
held as scheduled on December 16 and 19, 1994, at
Mercerville, New Jersey. The record remained open after
the hearing to allow the parties to submit post-hearing briefs.
The last of these was received on January 27, 1995, and the
record closed on that date. An order extending the time for
issuance of this Initial Decision was subsequently entered.
FINDINGS OF FACT
Some of the material facts in this matter were previously
set forth in the parties’ papers on the motion for summary
decision. All of the facts necessary to resolve this case are
essentially undisputed. Edmund and Barbara Karam own
Lots 5 and 5.01, known as 926 Cole Drive in Brielle, having
purchased the land on January 7, 1993 (Exhibit P-1). Lot 5,
which fronts on the Manasquan River, contains an existing
single family home. Lot 5.01 is mparian land, most of which
is below the mean high water line of the river. This lot
measures approximately 118 feet wide, and varies in its
other dimension from 230 feet on the East side to 290 feet
on the West.
The Karams’ title to the riparian land is based upon a
May 19, 1924 riparian grant issued by the State of New
Jersey to their predecessors in title, Charles and May
Schweinert (Exhibit P-2). The Schweinerts paid $5,301.00
for the conveyance of 523.681 square feet, or approximately
12 acres, of riparian land. The portion of this conveyance
which the petitioner purchased constitutes approximately
30,680 square feet. By the terms of the riparian grant, the
grantees were given the right to fill the riparian land up to
the bulkhead line. The only use of the riparian land which
a0 t8? dba, em
>
33a
Appendix F
the grant permitted beyond the bulkhead line was
construction of a pier. A license or grant of riparian land in
front of the pierhead line could be given to other parties, as
long as the Schweinerts’ access to the Manasquan River
remained unimpeded. The grant states:
And also under like term, covenants, conditions
and limitations, all and singular the lands under
water lying between the exterior line for solid
filling and the exterior line for piers, as fixed by
the Board of Commerce and Navigation
appointed under the authority of the act aforesaid,
and bounded by easterly and westerly lines of
the first described tract extending southward!ly
to said line; but said last land described is not to
be used for any purposes whatsoever except
erection of a pier or piers thereon, underneath
which the tide may ebb and flow and no solid
filling shall be placed thereon.
Edmund Karam testified that he loves the water and
boats, and he has spent summers in the Manasquan River
area for about twenty years. He would like to upgrade the
house in Brielle and make it his permanent residence.
According to Mr. Karam, the riparian grant for the property
was critical to his purchase. He understood after reading
the grant and receiving legal advice that he would have no
difficulty building a dock. In addition, Mr. Karam estimated
that seven or eight of his closest ten neighbors have docks,
so this also led him to conclude that having his own dock
would not be a problem (Exhibit P-7). If he had any question
about being able to build a dock, he would not have
purchased the property.
34a
Appendix F
Mr. Karam keeps his two boats moored in the water
the entire boating season (Exhibit P-6). He has had his
engineer prepare plans showing the proposed dock and
mooring piles on both the East and West sides of the riparian
grant (Exhibits P-4 and P-5). It was Mr. Karam’s testimony
that he prefers the plan for the dock to the East. However,
he felt the Department might accept the plan for the dock
on the West side, which would put it very close to his
neighbor’s dock, if the Department were worried about
contamination. That area would already be contaminated
anyway.
Environmental consultant Joseph Lomax testified as an
expert on shellfish and coastal ecology. His resume was
admitted into evidence as Exhibit P-8. Using the 1994 State
of New Jersey Shellfish Growing Water Classification
Charts (Exhibit P-9), Mr. Lomax located the petitioner’s
property on Chart 3 and determined the shellfish growing
water classification for his vicinity on the Manasquan River
to be “special restricted.” West of the Route 70 bridge, the
water classification is “prohibited.” Special restricted and
prohibited are both classifications for waters condemned
for the harvesting of oysters, clams, and mussels. However,
the Department may approve applications for removal of
shellfish to be used for human consumption from areas
classified as special restricted, for transplant, transfer,
relaying, and depuration/controlled purification.
Mr. Lomax conducted a survey of the petitioner’s
riparian property following procedures described in the May
1991 Shellfish Survey Guidelines for New Jersey (Exhibit
P-10). He obtained the necessary permits and notified the
35a
Appendix F
appropriate authorities upon initiating the survey. According
to Mr. Lomax, he utilized both the grab sample method for
locating juvenile clams and the bottom raking method for
locating adult clams. He described at length his method of
sampling from 30 different points. Figure 4 of his Field
Survey report (Exhibit P-11) shows the sampling points
where he found clams and those where he did not. Mr.
Lomax noted that the more sandy the substrate, the fewer
the clams found. He found 19 clams by raking, and he
calculated their density as .08 adult clams per square foot.
By his grab sample, Mr. Lomax calculated the density for
juvenile clams to be .19 per square foot. His estimate of the
overall density of clams for the entire riparian grant was 1 |
clams per square foot. He acknowledged that where it is
shown on his chart that he found no clams, that means only
that he found none and not that there are none. He also
candidly acknowledged that in the central and southern
portions of the study site, there is a hard clam habitat. Mr.
Lomax concluded that there was no hard clam habitat in
the northern area, closest to the shore.
It was the testimony of Mr. Lomax that the Department
approved construction of a 230 foot by 6 foot dock on the
property next door to petitioner in 1987 (Exhibit P-13). This
dock is located in a riparian grant with the same predecessor
as petitioner’s. According to Mr. Lomax, the Department’s
shellfish policy was substantially the same in 1987 as it
was when petitioner’s application for a permit to build his
dock was denied. Mr. Lomax also noted that the mooring
of boats, as petitioner has been doing, results in a prohibited
status for the water. He opined that construction of a dock
would therefore not resu!t in a change in the status: it would
36a
Appendix F
just change the modality of the prohibition. Mr. Lomax
testified that he included a land use map in his field survey,
which shows that there are many docks dotting the shoreline
of the Manasquan River (Exhibit P-11). It was his opinion
that there would be no significant incremental increase in
adverse effect from construction of petitioner’s dock,
particularly because the area is already grossly degraded,
and also because the area has good tidal flushing. According
to Mr. Lomax, a study has indicated that where there is
excellent tidal flushing, the impact of a dock would be
absolutely minimal for shellfish.
Environmental Scientist Robert Scro testified for the
Department as an expert on the influence of marine
construction on water quality as it relates to shellfish. His
curriculum vitae was admitted into evidence as Exhibit R-3.
His office, the Division of Science and Research, Bureau
of Marine Water Classification and Analysis, classifies the
shellfish water quality at the petitioner’s site as moderately
polluted. This resulted in the special restricted designation.
According to Dr. Scro, such water quality is sufficient to
support a community of shellfish, and he noted that the water
quality in the vicinity of petitioner’s property has
historically been so sufficient. However, the clams would
not now be fit for consumption directly from those waters,
but would be eligible for a hard clam relay and eventual
purification.
Dr. Scro testified that when a dock is constructed, the
water under it is automatically condemned and reduced to
“prohibited” status. Since construction which downgrades
water quality from special restricted to prohibited status
37a
Appendix F
(both are condemned waters) is prohibited, the Department
recommended denial of petitioner’s application. In terms
of contamination, docks and boats can leach toxic
substances into the water, and these substances can be taken
into shellfish through bio-accumulation. Pressure treated
lumber leaches copper chromium and arsenic. The bottom
paint on boats can be toxic, and boats also are the source of
hydrocarbon and fecal coliform pollution. According to Dr.
Scro, experts in the field of water quality have concluded
that the incremental adverse impact from construction of
an individual dock is real. The cumulative effect of dock
construction may be a downgrading of the area water quality
to prohibited. Dr. Scro described the petitioner’s area as
compromised, and suggested that there may be a
downgrading if pollution controls on the Manasquan River
are not enhanced. He noted that his agency approves 94%
of the applications it receives for construction of single
docks, and the remaining 6% are denied because of shellfish
impacts.
Dr. Scro acknowledged that no one is legally
shellfishing on the Manasquan River at the present time.
However, nothing would prevent an interested person from
applying for permission to conduct a hard clam relay
program from the petitioner’s section of the river. The last
such permit was issued in 1988. Dr. Scro concluded that
the commercial value of shellfish harvesting in the
Manasquan River since that year has been zero dollars.
Assistant Fisheries Biologist Jeffrey Normant testified
concerning the shellfish survey of petitioner’s site which
he conducted for the Department on April 30, 1993. He has
38a
Appendix F
conducted about 30 such surveys involving private dock
applications, and has done about 100 for lease bed permits.
After locating the property and launching their boat,
Normant and his assistants took depth soundings and water
quality samples at the site.? Next, five grab samples for
juvenile shellfish were performed. After this, Normant used
a bullrake to take 19 samples of the substrate in the riparian
grant for adult clams. He did not sample any further south
in the river than the proposed dock would extend, and he
surveyed to the north as far as the draft of his boat would
permit. The samples were taken from the middle and along
the two edges of the riparian grant, in an area covering 938
square feet. The sampling revealed a population of hard
clams with a moderate density of 2.6 per square foot.
James Joseph, Chief of the Bureau of Shellfisheries,
also testified. His agency oversees the hard clam relay and
protects New Jersey shellfish resources. This includes
reviewing coastal development. In his career he has
conducted extensive estuarine shellfish research and
surveys. He testified as an expert on shellfish surveys. In
his opinion, the survey conducted by Mr. Normant complied
with standard Department procedure, and it was proper for
the Department to rely on it in part to deny the petitioner’s
application. The survey confirmed the presence of a
productive shellfish bed with sufficient density and age
distribution of clams.
2. Although he could not remember the distinguishing features
at the time of the hearing, Normant testified credibly that he and
his assistants used the configuration of the neighbor’s dock and
features of the petitioner's house to locate the survey site from the
water.
pa OS Hints 2b
39a
Appendix F
Other support for the denial came from histori ita.
According to Mr. Joseph, the Manasquan River w in
the area have historically been productive for shell fis; ‘e
shellfish populations were first sampled in 1963. a
accumulated by systematic sampling in 1984 estab. J
that there were high densities of clams in the area )
petitioner’s property (Exhibit R-2). Mr. Joseph was pre:
and one of the principal investigators for the collection
that data. When the DEP sampled the location of the proje
in April 1993, moderate densities of adult hard clams an
high densities of juveniles were found.
Mr. Joseph testified credibly that there is no doubt in
his mind that there is a shellfish bed on the petitioner’s site.
He felt that the report of Mr. Lomax (Exhibit P-1 1), which
States that the central and southern portions of the study
site contain hard clam habitat. supports his conclusion that
the site has a long history of natural recruitment of shellfish.
He noted that populations of hard clams fluctuate over time,
and they are not distributed evenly. In addition, clams can
live at least 40 years. According to Mr. Joseph, a density of
hard clams as little as .05 per square foot would still be an
area of natural recruitment. Construction of a dock would
require a downgrading of the waters under it, which is
prohibited by regulation.
Except for the various opinions of witnesses concerning
the actual environmental impact that would arise from
construction of a single dock in the petitioner’s riparian
grant in the Manasquan River, the foregoing is essentially -
undisputed and is thus FOUND AS FACT. In any event,
the parties’ experts differ only by a shade, as Mr. Scro is of
40a
Appendix F
the opinion that the adverse incremental impact from
construction of an individual dock is rea/, while Mr. Lomax
feels that there would be no significant incremental increase
in adverse effect from construction of petitioner’s dock.
DISCUSSION AND CONCLUSIONS
N.J.A.C. 7:7E-3.2(a) defines shellfish habitat areas in
part to include estuarine bay or river bottoms that have:
1. ... a current shellfish density equal to or
greater than 0.20 shellfish per square foot; [or]
2. ... a history of natural shellfish production
according to data available to the New Jersey
Bureau of Shellfisheries, or [are] depicted as
having high or moderate commercial value in the
Distribution of Shellfish Resources in Relation
to the New Jersey Intracoastal Waterway (U.S.
Department of the Interior, 1963), “Inventory of
New Jersey’s Estuarine Shellfish Resources”
(Division of Fish, Game and Wildlife, Bureau
of Shellfisheries, 1983-present); and/or the
“Inventory of Delaware Bays Estuarine Shellfish
Resources” (Division of Fish, Game and
Wildlife, Bureau of Shellfisheries, (1993).
Using acceptable methodology, the Department’s
employee, Jeffrey Normant, surveyed the petitioner’s
riparian grant for shellfish and found a density of hard clams
exceeding .20 per square foot. Using acceptable
methodology, but alternative equipment, the petitioner’s
4la
Appendix F
expert, Joseph Lomax, found a density that was less than
.20 per square foot. However, the petitioner’s evidence did
not discredit or refute the accuracy of the Department’s
survey, and Mr. Lomax candidly acknowledged that his
results did not compel any conclusions about the areas
within the riparian grant which he did not survey. Thus, it
is more likely than not that the area in question had a
shellfish density equal to or exceeding .20 shellfish per
square foot on April 30, 1993.
Messrs. Normant and Lomax agreed that there is a hard
clam habitat on the petitioner’s riparian lot. In addition,
there is no genuine dispute concerning the historical
presence of commercially significant hard clams in the
Manasquan River, dating at least to 1963. A systematic
inventory of shellfish in the river in 1984 revealed high
densities of hard clams at the location of the petitioner’s
lot. The unrefuted expert opinion of James Joseph
established that the petitioner’s lot has a history of natural
recruitment of shellfish. Thus, it is clear that the petitioner’s
riparian lot is within a shellfish habitat area. I so
CONCLUDE.
Pursuant to N.J.A.C. 7:7E-3.2(c), the water located
under any boat mooring facility (including docks and
associated structures) is automatically condemned and
reduced in shellfish growing water classification to
“prohibited” status pursuant to N.J.A.C. 7:12-2.1(a)1ii. Any
development which would result in the destruction or
contamination of shellfish habitat, or would result in
downgrading of the growing water classification of shellfish
habitat, is prohibited. Thus, whether or not construction of
42a
Appendix F
petitioner's proposed dock would destroy or contaminate
the shellfish habitat on his riparian lot, it would
automatically result in downgrading of the growing water
classification from “special restricted” to “prohibited.
Therefore, the proposed development is prohibited, pursuant
to N.J.A.C. 7:7E-3.2(c). 1 so CONCLUDE,
Finally, N.J.A.C. 7:7E-3.2(d) prohibits construction of
a dock or boat moorings in shellfish habitat, unless either
the construction will be a public fishing pier, or the
construction will be in waters which have been classified
as “prohibited” for the purpose of harvesting shellfish. The
shellfish growing water classification for the shellfish
habitat on the petitioner’s riparian lot is special restricted.
Thus, 1 CONCLUDE that the construction of petitioner’s
proposed dock is prohibited, pursuant to N.J.A.C.
7:7E-3.2(d)
As noted above, the petitioner renewed in his
post-hearing submissions arguments that had been rejected
previously when his motion for summary decision was
denied. I do not believe any facts were adduced at the
plenary hearing that would warrant departing from the
conclusions I reached in denying the motion. However, the
arguments are by no means trivial. Thus, I have included
the pertinent discussion of them in an appendix to this
decision.
Given the credible testimony of the petitioner that he
purchased his property on the Manasquan River so that he
could build a dock for his boats, it is understandable if he
considers the result in this matter harsh, or even arbitrary.
¥
a
on
ES
43a
Appendix F
This might be argued because of the lack of actual
shellfishing activity on the river, and because of the many
docks now present there. However, it is clear that the adverse
impact of dock construction in shellfish habitat occurs at
least as a legal premise, based upon regulatory assumptions.
Is this a procrustean “clam” bed, imposing an arbitrary
standard? | do not believe so, to the extent the Department's
regulations appear to be based upon scientific data, and to
the extent they attempt to strike a reasonable balance
between environmental and commercial interests on one
hand and recreational interests on the other.
The greatest loss to the petitioner seems to be
convenience and full enjoyment of boating. However, he is
still able to enjoy both his property and his boats, and he
continues to have access to the navigable waters of the
Manasquan River, just as when he purchased the property.
To the extent that the petitioner, who wants to build a dock
in close proximity to his neighbor’s existing dock, is situated
similarly to other citizens of this State who might also
question the fairness of these regulations, it might be well
for the Department to revisit the related questions of actual
environmental impact and commercial viability of
shellfishing under such circumstances.
Based upon the foregoing, | CONCLUDE that the
petitioner’s property is located in a shellfish habitat area
and that his application for a Waterfront Development
Permit to allow construction of a dock must therefore be
DENIED. It is so ORDERED.
44a
Appendix F
I hereby FILE my initial decision with the
COMMISSIONER OF THE DEPARTMENT OF
ENVIRONMENTAL PROTECTION for consideration.
This recommended decision may be adopted,
modified or rejected by the COMMISSIONER OF
THE DEPARTMENT OF ENVIRONMENTAL
PROTECTION, who by law is authorized to make a final
decision in this matter. If the Commissioner of the
Department of Environmental Protection does not adopt,
modify or reject this decision within forty-five (45) days
and unless such time limit is otherwise extended, this
recommended decision shall become a final decision in
accordance with N.J.S.A. 52:14B-10.
Within thirteen (13) days from the date on which this
recommended decision was mailed to the parties, any party
may file written exceptions with the DIRECTOR,
OFFICE OF LEGAL AFFAIRS, DEPARTMENT OF
ENVIRONMENTAL PROTECTION, 401 East State
Street, 4th Floor, West Wing, CN 402, Trenton, New
Jersey 08625-0402, marked “Attention: Exceptions.” A
copy of any exceptions must be sent to the judge and to the
other parties.
April 27, 1995 s/ Joseph F. Fidler
DATE JOSEPH F. FIDLER, ALJ
45a
Appendix F
Receipt Acknowledged:
s/ [illegible]
DEPARTMENT OF
ENVIRONMENTAL
PROTECTION
Mailed to Parties:
MAY 04 1995 s/ [illegible]
DATE [stamp]
ACTING DIRECTOR AND
CHIEF ADMINISTRATIVE
LAW JUDGE
OFFICE OF ADMINISTRATIVE
LAW
46a
Appendix F
EXHIBITS
For Petitioner:
Deed
Riparian Grant
Denial of permit application
Plan
Alternate Plan
Photos
Photos
Lomax resume
Shellfish Growing Waters Classification
Shellfish Survey Guidelines
Report of Mr. Lomax
Photo of Sampling Station Transect Stakes
Permit for Schwartz Pier
WDA Permit Application
WDA Permit Approval
Site Map
For Respondent:
Letter from Mr. Karam to DEP
Map of Relative Density of Hard Clams
Curriculum Vitae of Dr. Scro
Resume of James Joseph
47a
Appendix F
WITNESSES
For Petitioner:
Edmund Karam
Joseph Lomax
For Respondent:
Robert Scro
Jeffrey Normant
James Joseph
48a
Appendix F
APPENDIX
There follows here the pertinent portion of the Order
Denying Motion for Summary Decision:
The petitioner contends that as a result of the State’s
conveyance to the Schweinerts in 1924, he has a fee simple
interest in lot 5.01, and no title whatsoever remains in the
State. Island Heights v. Presbyterian Camps, 68 N.J. Super.
291, 295 (App. Div. 1961). Since the State conveyed to his
predecessor in title not only the riparian land itself, but also
the right to construct piers in order to facilitate access to
navigable waters, the DEP cannot now deny a permit for
such construction as a matter of law. Assuming that a permit
to construct a pier would be necessary pursuant to L. 1914,
Chapter 123, Section 4, which is now codified as N.J/.S.A.
12:5-3, the very language of the conveyance from the Board
of Commerce and Navigation in effect guaranteed that a
permit would be issued.
The petitioner further asserts that if the State can now
deny the Karams their right to construct a pier, the State
will thereby have denied all reasonable use of the land, since
a pier is, for all intents and purposes, the only use to which
the riparian land can be put. This would amount to a taking
of the land, tor which the State must pay just compensation.
Lucas v. South Carolina Coastal Council, 505 U.S. __, 112
S.Ct. 2886, 120 L. Ed. 2d 798 (1992). As a separate
contention, it 1s also the petitioner’s position that in
destroying whatever rights the Karams enjoy under the
riparian grant, the State has unilaterally reneged upon its
contractual obligation, in violation of the contract clause
of the United States Constitution, Article I, Section 10.
|
49a
Appendix F
Furthermore, the petitioner contends that the Waterfront
Development Act of 1914 was never intended to regulate
based upon environmental concerns. Reciting the legislative
history of this statute, the petitioner asserts that its sole
purpose has been to regulate navigation and commerce on
navigable waterways. Lost Chance Development
Partnership v. Kean, 119 N.J. 425, 436 (1990); Long Beach
Township Oceanfront Property Owners v. DEP, 245 N.J
Super. 143, 149 (App. Div. 1990). Thus, it its the petitioner’s
position that the DEP may not, as a matter of law, deny the
petitioner a waterfront development permit under N.J.S.A.
12:5-3 due to purely environmental concerns, such as
impacts upon shellfish. Since the riparian grant from the
Board of Navigation and Commerce established the
appropriateness of a pier, the DEP’s only function should
be to review the petitioner’s pier plan to ensure that the
pier does not unduly interfere with navi gation and commerce
on the Manasquan River.
In opposition to the motion for summary decision, the
DEP contends that the plain terms of the Waterfront and
Harbor Facilities Act, N.J.S.A. 12:5.1 et seq., as well as the
history of its implementation by the Board of Commerce
and Navigation, indicate that as the Board’s successor, the
DEP has ample authority to regulate construction within
shellfish beds. Because construction of the proposed dock
in the shellfish bed would result in condemnation or
contamination of shellfish beds pursuant to N.J.A.C.
7:7-2.1(a)(i), N.J.A.C. 7:7E-3.2(b) and (c), and N.J.A.C.
7:7E-8.3, the permit application was denied. The DEP
observes, however, that the petitioner would be free to drop
anchor on his own riparian land, and may also utilize public
50a
Appendix F
or private marinas as may be convenient. The DEP also
contends that this regulation of construction within shellfish
beds does not impair any right secured to the petitioner by
the riparian grant.
The DEP contends that shellfish are a commercially
significant natural resource found within the navigable tidal
waterways of New Jersey, including the Manasquan River.
Since the early 1800’s, development on such waterways
has been regulated. The current statutory regulation is
pursuant to the Waterfront and Harbor Facilities Act, and
its implementing regulations, N.J.A.C. 7:7E-1 et seq., the
Rules on Coastal Zone Management. At N.J.A.C. 12:5-2,
the Act authorizes the DEP to:
restrain, prevent and remove any construction,
erection or accretion injurious to the flow of any
such waters, which may be detrimental to the
proper navigation thereof and the maintenance
and improvement of commerce thereon.
The DEP contends that pursuant to the Act, it is thus enabled
to prohibit any development in the navigable waters of this
State that has the potential to adversely affect commerce,
such as the shellfishing industry. Regulation of development
to protect shellfish is “within fair contemplation of the
delegation of the enabling statute,” Last Chance
Development v. Kean, 232 N.J. Super. 115, 125 (App. Div.
1989), citing Southern Jersey Airport v. Nat. Bk. Of
Secaucus, 108 N.J. Super. 369, 383 (App. Div. 1970), the
DEP asserts, and therefore should be upheld.
Sla
Appendix F
It is the DEP’s position that the area in which the
petitioner proposes to build a dock is properly classified as
a “shellfish bed” pursuant to N.J.A.C. 7:7E-3.2. Under this
regulation, a river bed which is productive for hard clams
is a shellfish bed, and if the bed can be shown to have a
history of natural recruitment, it is a productive bed. A
Sampling at the petitioner’s site in April 1993 confirmed
the presence of moderate (commercially harvestible)
densities of hard clams, and high densities of juvenile clams.
In addition, shellfish inventory records from 1963 and 1984
confirmed that the area has a history of natural recruitment
of hard clams in at least moderate densities. Shellfish can
be destroyed or rendered inedible by absorbing pollutants
emanating from dock materials, chemicals used to maintain
a dock, or from the presence, maintenance or operation of
boats kept at a dock. Thus, construction of a dock in a
Shellfish bed automatically condemns that habitat for
purposes of harvesting shellfish. N.J.A.C. 7:7-2.1(a)(i).
The DEP traces its policy of protecting shellfish beds
from contamination and destruction to 1972. Its rules on
Coastal Zone Management are based upon policies
enunciated in the Coastal Zone Management Act
(“CZMA”), 16 U.S.C. § 1451 et seq., wherein Congress
noted that:
the coastal zone, and the fish, shellfish, other
living marine resources, and wildlife therein, are
ecologically fragile and consequently extremely
vulnerable to destruction by man’s alterations.
[16 U.S.C. §1452 (d)].
52a
Appendix F
Under the CZMA, it became national policy to
“preserve, protect, develop, and where possible, restore and
enhance” the resources of the nation’s coastal zones,
including “fish, wildlife and their habitat,” 16 U.S.C. §1452,
and coastal states developed land and water programs
implementing “unified policies, criteria, standards, methods
and processes for dealing with land and water use
decisions.” 16 U.S.C. §1451 (1). In particular, “special area
management plans” were to be formulated to protect
commercially valuable and environmentally vulnerable
natural resources, such as shellfish. 16 U.S.C. §1452. In
June 1973, New Jersey enacted the Coastal Area Facility
Review Act, which vested with the DEP the authority to
regulate certain facilities in the coastal plain and the
responsibility to promulgated a management plan.
New Jersey’s coastal zone management plan received
federal approval in September 1978, and the policy of
preventing destruction, contamination or condemnation of
shellfish beds has been a part of the coastal management
plan since then. The DEP notes that these coastal regulations
are presumed valid, A.A. Mastrangelo, Inc. v. Environmental
Protect. Dep 't., 90 N.J. 666, 683 (1982); New Jersey Guild
of Hearing Aid Dispensers v. Long, 75 N.J. 544, 561 (1978),
and should be sustained unless “clearly ultra vires.” Medical
Soc. v. N.J. Dept. of Law, 229 N.J. Super. 128, 134 (App.
Div. 1988). It is the DEP’s position that these regulations
are plainly incident to the regulation of commerce in New
Jersey, and that regulation of commerce is properly within
the power delegated to DEP under the Waterfront
Development Act.
%
e
9,
53a
Appendix F
The relationship of this power to the present matter is
illustrated by the 1924 riparian grant upon which the
petitioner relies. The grant from the Board of Commerce
and Navigation documents the State’s recognition of the
value of commerce in shellfish, reserving to the State the
right to lease out the lands in front of the petitioner’s pier
line “for the cultivation of oysters or of other fish or for
any other purpose whatsoever.” The DEP argues that there
is thus ample precedent for the DEP, as successor to the
Board, to incorporate policies protecting shellfish habitat
into its regulations governing the issuance of waterfront
development permits.
The DEP further contends that there is no reason to
invalidate a regulation under the Waterfront Development
Act merely because it may be characterized as
“environmental” in effect. “Environmental concerns are
inextricably linked with the regulation of commerce.” Last
Chance, 119 N.J. 425, 435. The legislative objective of the
Act is not simply fostering and promotion of marine
commerce. Distributec, Inc. v. New Jersey Dept. of
Environmental Protection and Energy, et al., 274 NJ.
Super. 1, 10 (App. Div. 1994). The Act’s true legislative
objective is “to regulate commercial development of the
waterfront to facilitate navigation and commerce.” Matter
of Waterfront Development Permit No. 87-1235-] »257 NJ.
Super. 524, 530-31 (App. Div. 1992). Thus, the Distributec
court found regulations setting forth criteria for the siting
of new ports, prohibiting ports in areas incompatible with
surrounding land uses, N.J.A.C. 7:7E-7.9(d), and requiring
applicants to show unavailability of land adjacent to existing
ports, N.J.A.C. 7:7E-7.9(c), to be a valid exercise of
54a
Appendix F
authority pursuant to the Act. Even though the regulations
had the beneficial environmental effect of discouraging “the
dispersion of the many problems of port operations to other
non-port areas,” Distributec, at 10, the court found the
regulations to be “precisely the type of administrative
control over commercial development and marine
commerce which the Legislature envisioned when it enacted
the WDA.” /d. at 10.
In opposing the petitioner’s motion for summary
decision, the DEP also disputes the petitioner’s assertion
that the riparian grant to his predecessor in title requires
that he now be entitled to construct a pier, as a matter of
law. According to the DEP, to construe a grant such as the
petitioner's as a de facto permit of unlimited duration,
allowing any activity recited therein, is unsupported in law
and is poor public policy. The DEP analogizes this matter
to regulation of land above the mean high water line, noting
that it has long been recognized that
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 rights as the
State may lawfully exercise over all other private
property. [Brennenstuhl v. Land Use Regulation,
NJDEP, 93 N.J.A.R. 2d (EPE) 125, 128 (1993),
citing Mayor and Council of Hoboken v. Pa. R.R.
Co., 124 U.S. 656, 8 S.Ct. 643, 31 L.Ed. 543,
552 (1988), emphasis added.
a
55a
Appendix F
The DEP suggests a clear example of a sovereign right
the State may lawfully exercise over private property is the
prohibition of certain land uses in certain land areas by -
zoning. An existing land use is not immunized from
subsequent change in zoning or other laws which can restrict
or prohibit that use completely. See, Dimitrov v. Carlson,
138 N.J. Super. 52, 59 (App. Div. 1975). Thus, the DEP
asserts that land uses previously deemed benign or
beneficial may be restricted or prohibited entirely by
authorities with jurisdiction over those uses in response to
evolving societal expectations or environmental constraints.
As successor to the Board of Commerce and Navigation,
the DEP is authorized to regulate the uses of riparian land
and to direct development away from areas containing
important natural resources such as shellfish. Nothing in
the 1924 grant expressly precludes the DEP from regulating
riparian land just as a municipality regulates property within
its jurisdiction. The DEP contends that since present and
future law forms are an implied provision of every contract,
there is no basis to argue that it lacks the authority to regulate
petitioner’s riparian lands to protect shellfish and the
commerce which depends on it.
The DEP also argues that the petitioner’s claim of
contract impairment should be rejected. The prohibition
against pier construction does not impair the fundamental
purpose of the riparian grant, which is to ensure access to
navigable waters. While a pier would make access to the
Manasquan River more convenient, access is nevertheless
available without it. The DEP also argues that the
petitioner’s constitutional claim should fail because the
conditions on coastal development of which the petitioner
56a
Appendix F
complains have been an implied provision of the grant since
December 1978, well before he purchased the riparian land
in question. Furthermore, any inconvenience which the
petitioner may experience in accessing his boat to travel on
the Manasquan River is far outweighed by the public interest
in preserving shellfish as a commercial commodity and
natural resource. Thus, the DEP argues that if there is any
contractual impairment, it is incidental and necessary to
serve important public purposes.
In reply to the DEP’s opposition, and in further support
of his motion for summary decision, the petitioner notes
that the DEP has conceded that the petitioner has the right
to moor his boat within his riparian grant area. Petitioner
contends that under the DEP’s own rules, such mooring
automatically condemns the area for shellfishing. Pursuant
to N.J.A.C. 7:12-2.1(a)(1)(ii), “all marinas, anchorages or
other places where docking or mooring facilities are
provided for boats” are classified as prohibited for the taking
of shellfish. Because the petitioner’s riparian grant would
thus already be condemned for shellfish, the petitioner
asserts, then the DEP improperly denied him a waterfront
development permit to construct a pier. If the area is already
deemed condemned for shellfish purposes, then the
construction of a pier could have no effect on that
designation.
The petitioner also reemphasized his argument that the
1924 riparian grant gives him an absolute right to construct
a pier on his property. According to the petitioner, there is
no ambiguity in the grant, and strict construction compels
the conclusion that petitioner’s predecessor in title paid for
57a
Appendix F
and received the absolute right to fill and construct a pier.
The grant provides that a pier is the only use to which the
riparian grant can be put, and the DEP must now honor its
terms. Denying petitioner all reasonable beneficial use of
the riparian grant is the most severe impairment of
petitioner’s rights imaginable. It is the petitioner’s position
that such action by the DEP is unconstitutional, as it
amounts to “total destruction” of the State’s contract
obligation to the petitioner. U.S. Trust Co. v. New Jersey,
431 U.S. 1, 26, 97 S.Ct. 1505, 52 L.Ed. 2d 92 (1977). In
addition, petitioner asserts that the DEP has not
demonstrated that it can now regulate the use of land it once
owned, where the same agency which conveyed the riparian
grant has authority to approve construction pursuant to
N.J.S.A. 12:5-3.
Finally, petitioner contends that the DEP has failed to
demonstrate that N.J.S.A. 12:5-3 was ever intended by the
Legislature to protect shellfish, or that the Board of
Commerce and Navigation ever so construed it. According
to the petitioner, N.J.S.A. 12:5-3 was designed to address
“the lay-out of piers and other structures with relation to
each other, or to the general commerce of the district and
port.” Distributec, Inc. v. NJDEPE, supra, at 6, citing Last
Chance Develonment, supra, at 119, 120. Petitioner
contends that it is noteworthy that Title 50 of New Jersey
Statutes Annotated is devoted to regulation of every aspect
of shellfishing, including oyster, clams, and mussels. Yet,
nowhere within this comprehensive scheme did the
Legislature ever mandate that no piers could be constructed
within any area where shellfish are present.
58a
Appendix F
It was not until 1978, 64 years after enactment of the
Waterfront Development Act, that DEP began to consider
shellfish impacts when processing applications for docks
or piers. Petitioner contends that the injection of purely
environmental factors, such as shellfish, into the DEP’s
decision-making process regarding commerce and
navigation on navigable waters is without legislative
authorization. According to the petitioner, this is nothing
more than an attempt by DEP to apply the Waterfront
Development Act to give it new authority, notwithstanding
“more than a half century of a contrary understanding of
the purpose and effect of the act.” Last Chance, supra, 119
N.J. at 434. Petitioner further argues that the Legislature
was concerned with “commerce thereon,” N.J.S.A. 12:5-2,
that is, commerce on the navigable waters, and that this
clear reference to boat traffic can not be construed to include
the harvesting of shellfish from the bottom of such waters.
In its final response to the petitioner’s arguments, the
DEP contends that Title 50 does not preclude the State from
regulating commerce in shellfish and protecting it from the
detrimental effects of development under the Waterfront
and Harbor Facilities Act, N.J.S.A. 12:5-1. At N.J.S.A.
12:5-2, the Act authorizes DEP, in pertinent part, to
restrain, prevent and remove any construction,
erection or accretion injurious to the flow of any
such waters, which may be detrimental to the
proper navigation thereof and the maintenance
and improvement of commerce thereon.
(Emphasis added).
59a
Appendix F
As the DEP explained in its initial brief, shellfish were
plainly understood to constitute “commerce” under the Act
long before petitioner’s riparian grant was issued in 1924,
and accordingly, development on petitioner’s riparian lands
must meet the requirements of the Act and its implementing
regulations, N.J.A.C. 7:7E-1 et seq., the Rules on Coastal
Zone Management. In contrast, Title 50’s predecessor,
N.J.S.A. 24:1-1 et seg., was devoted to ensuring
wholesomeness in food, particularly shellfish. Title 50 has
amplified this concern by preserving State control over the
condemnation and leasing of shellfish beds, and the timing
and methods by which shellfish can be harvested in New
Jersey. According to the DEP, such legislation is parallel
to and not preclusive of other laws such as Title 12 which
regulate development in the waters of the State, whether or
not they contain shellfish. Even if Title 50 were the
exclusive source of power for DEP to preserve commerce
in shellfish, DEP asserts that the protection of shellfish beds
from physical invasion and destruction could be
accomplished under the rubric of another permitting
program such as waterfront development as long as no other
permitting program regulated that aspect of shellfish
management. See, Society for E.E.D. v. NJDEP, 208 N.J.
Super. 1,8 (App. Div. 1985). (Allowing DEP to implement
in a single set of rules overlapping areas from a variety of
statutory programs). In this matter, DEP asserts, there is no
statute other than N.J.S.A. 12:5-1 et seq., and the regulations
promulgated pursuant to the Act which regulates
development in shellfish waters.
The DEP asserts that there is no basis for petitioner’s
conclusion that the State’s failure to articulate policies
60a
Appendix F
protecting shellfish in the early decades of this century limits
the State’s explicit power under the Act to protect commerce
in shellfish now. As indicated by the affidavit of George
Filmlin, Jr., of the Rutgers Cooperative Extension of Ocean
County, shellfish did not require protection until the last
few decades, when shellfish landings began to decline
precipitously. Only when the decreased landings clearly
evidenced a long-term trend did the State have cause to
restrict development to protect this commerce which was
entrusted to it under the Act. Because 90% of all commercial
clammers in 1993 relied for their harvest upon naturally
occurring shellfish found in State approved waters using
traditional methods, the DEP argues that it is plain that
continued protection under the Act of existing sources of
shellfish is critical to the livelihoods of the vast majority of
licensees. It is the DEP’s contention that no principle of
law supports the petitioner’s inference that the State waived
its legislatively granted jurisdiction to protect this commerce
merely because regulatory intervention did not occur until
recently, when the problem reached critical proportions.
Finally, the DEP contends that there is no basis for the
petitioner to argue that the right to drop anchor in waterways
within the State of New Jersey carries with it the right to
place permanent structures in shellfish beds. The DEP
concedes there is no regulatory mechanism for the State to
monitor where a person may casually moor his boat from
day to day so as to allow the State to formally condemn
that portion of water. Similarly, the State cannot follow each
boat as it passes over shellfish beds to determine whether
pollutants are being discharged. According to the DEP,
while both activities may result in discharge of pollutants,
6la
Appendix F
monitoring and regulating these activities is too costly, and
would be socially unacceptable to most citizens. However,
this type of forbearance does not waive the State’s
jurisdiction to regulate those activities plainly within its
Statutory authority which are easily regulated, and which
are a source of pollution affecting the viability and
harvestibility of an important natural resource.
The DEP concedes that construction of the petitioner’s
project may condemn only a small portion of the shellfish
beds in the State. However, it is the DEP’s contention that
such activity, undertaken by others similarly situated
throughout the State would, eventually, completely
undermine the remaining shellfish commerce in New Jersey.
Consequently, the DEP argues that the resource can only
be preserved if waterfront development is regulated in all
instances, including petitioner’s. An unknown portion of
waterways currently productive for shellfish would be
opened to unregulated development if certain areas of water
were exempted from regulation merely because ownership
had previously been deeded away from the State. It is the
DEP’s position that such development, inevitably spreading
State-wide, would threaten the only habitat available to
support an important commercial resource and would
undeniably jeopardize the livelihood of hundreds of persons
in the New Jersey shellfish industry.
Resolution of the petitioner’s motion for summary
decision depends upon the answers to two broad questions.
The first is whether the DEP has the authority, under
regulations promulgated subsequent to the riparian grant,
to affect the grantee’s utilization of the grant. The second
62a
Appendix F
question is whether the DEP may protect shellfish with
regulations promulgated under authority of the Waterfront
Development Act. As I am in agreement with the essence
of the DEP’s arguments in this matter, I believe both
questions should be answered affirmatively.
I agree that construing a riparian grant such as the
petitioner’s as a de facto permit of unlimited duration,
allowing any activity recited in the grant, is unsupported in
law and is poor public policy. The DEP analogy to
regulation of land above the mean high water line is apt:
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 rights as the
State may lawfully exercise over all other private
property. [Brennenstuhl v. Land Use Regulation,
NJDEP, 93 N.J.A.R. 2d (EPE) 125, 128 (1993),
citing Mayor and Council of Hoboken v. Pa. R.R.
Co., 124 U.S. 656, 8 S.Ct. 643, 31 L.Ed. 543,
552 (1988), emphasis added.
As noted by the DEP, a clear example of a sovereign
right the State may lawfully exercise over private property
is the prohibition of certain land uses in certain land areas
by zoning. An existing land use is not immunized from
subsequent change in zoning or other laws which can restrict
or prohibit that use completely. See, Dimitrov v. Carlson,
138 N.J. Super. 52, 59 (App. Div. 1975). Thus, evolving
63a
Appendix F
societal expectations or environmental constraints may
result in land uses previously deemed benign or beneficial
being restricted or prohibited entirely by authorities with
jurisdiction over those uses. Nothing in the 1924 grant
expressly precludes the DEP from regulating riparian land
just as a municipality regulates property within its
jurisdiction. Since present and future law forms are an
implied provision of every contract, the grant itself does
not provide a basis to argue that DEP lacks the authority to
regulate petitioner’s riparian lands to protect shellfish and
the commerce which depends on it. 1 so CONCLUDE.
It is appropriate to note here that I agree that the
prohibition against pier construction does not impair the
fundamental purpose of the riparian grant, which is to ensure
access-to navigable waters. A pier would make access to
the Manasquan River more convenient, but access is
nevertheless available without it. In addition, the conditions
on coastal development of which the petitioner complains
have been an implied provision of the grant since December
1978, well before he purchased the riparian land in question.
The DEP’s submissions show that shellfish are a
commercially significant natural resource found within the
navigable tidal waterways of New Jersey, including the
Manasquan River. At N.J.A.C. 12:5-2, the Act authorizes
the DEP to:
restrain, prevent and remove any construction,
erection or accretion injurious to the flow of any
such waters, which may be detrimental to the
proper navigation thereof and the maintenance
and improvement of commerce thereon.
64a
Appendix F
Is regulation of development to protect shellfish “within
fair contemplation of the delegation of the enabling statute,”
Last Chance Development v. Kean, 232 N.J. Super. 115,
125 (App. Div. 1989), citing Southern Jersey Airport v. Nat.
Bk. Of Secaucus, 108 N.J. Super. 369, 383 (App. Div. 1970),
as the DEP asserts? Pursuant to the Act, the DEP is enabled
to prohibit any development in the navigable waters of this
State that has the potential to adversely affect commerce.
In my view, this includes the shellfishing industry. I so
CONCLUDE.
Based upon the foregoing, I CONCLUDE that the
petitioner has not demonstrated that he is entitled to decision
as a matter of law. Judson v. Peoples Bank & Trust Co. of
Westfield, 17 N.J. 67 (1954); N.J.A.C. 1:1-12.5. Therefore,
I further CONCLUDE that the motion of the petitioner for
summary decision should be DENIED.
65a
APPENDIX G — DENIAL OF WATERFRONT
DEVELOPMENT APPLICATION OF
EDWARD KARAM DATED MAY 11, 1993
State of New Jersey
Department of Environmental Protection and Energy
Environment Regulation
Land Use Regulation Program
CN 401
Trenton, NJ 08625-0401
Tel# 609-984-3444
Fax# 609-292-8115
Scott A. Weiner
Commissioner
MAY 11 1993
CERTIFIED MAIL
663 521 762
Mr. Walter Scharfenberg
George W. Henn, Inc.
435 Mantoloking Road
Bricktown, NJ 08723
RE: Waterfront Development Application
File No. 1308-93-0005.1
Edward Karam
Block 99.03, Lot 5 & 5.01
Borough of Brielle, Monmouth County
Manasquan River Watershed; Atlantic Coastal Basin
66a
Appendix G
Dear Mr. Scharfenberg:
The Land Use Regulation Program acting under the
provisions of N.J.A.C. 7:7H-1.1 et seg., has decided not to
grant permit application 1308-93-0005.1 for the reasons set
forth as follows:
SITE AND PROJECT DESCRIPTION
The project site is located on the Manasquan River and
is known as block 99.03, lots 5 & 5.01 in the Borough of
Brielle, Monmouth County.
The proposed project includes the construction of a 6'
x 170' fixed dock with a 8' x 18' “L”-shaped extension and
the driving of three mooring piles. This is as shown on plans
in one sheet entitled, “Proposed Dock and Mooring Piles”,
dated February 3, 1993 and revised March 21, 1993 as
prepared by Walter Scharfenberg.
ADMINISTRATIVE HISTORY
The following is an administrative history relating to
this application:
February 10, 1993 — Application was received
by the Land Use Regulation
Program, Bureau of Coastal
Regulation.
67a
Appendix G
April 6, 1993 — Water Technical Program’s,
Bureau of Marine Water
Classification and Analysis
recommends denial based on
the presence of shellfish beds,
condemnation of shellfish
habitat and degradation of
water quality.
May 3, 1993 — Division of Fish, Game
and Wildlife Bureau of
Shellfisheries, recommends
denial based on the presence
of shellfish beds and
condemnation of viable
shellfish habitat.
The deadline for decision on this application is June
15, 1993.
ANALYSIS
The following analysis is based on New Jersey’s Rules
on Coastal Zone Management (N.J.A.C. 7:7E-1.1 et seq.).
7:7E-3.2 Shellfish Beds
Shellfish Beds are identified as “Special Water Areas”
which merit focused attention and special management
policy.
68a
Appendix G
(a) “Shellfish beds” are estuarine bay or river
bottoms that are productive for hard clams
(Marcenaria mercenaria), soft clams Hya
arenaria), eastern oysters (Crassostrea
virginica), bay scallops (Argopecten
irradians), or blue mussels (Mytilus edulis).
A productive bed is one which can be shown
to have a history of natural recruitment for
one or more of these species, or is leased by
the State of New Jersey for shellfish culture,
or is a State Shellfish Management Area.
(b) Any development which would result in the
destruction of shellfish beds is prohibited.
(c) Any coastal development which would result
in the contamination or condemnation of
shellfish beds is prohibited. Development
which significantly alter the water quality,
salinity regime, substrate characteristics (as
through runoff or sedimentation), natural
water circulation pattern, or natural
functioning of shellfish beds during
construction or operation of the development
is prohibited.
In 1983, the Bureau of Shellfisheries, Division of Fish,
Game and Wildlife, conducted a shellfish inventory of the
Manasquan River, moderate to high densities of hard clams
are present within the vicinity of the project site. A site
inspection performed by that Bureau on April 30, 1993
confirmed moderate to high densities within the project site.
69a
Appendix G
The Shellfish Growing Water Classification Charts (1990-
91), classify the Navesink River as Special Restricted. This
area has been used in conjunction with existing State
sanctioned resource recovery programs including relay and
depuration.
In accordance with N.J.A.C. 7:12-1.2, “Special
Restricted Areas” mean certain condemned areas meeting
specified sanitary standards as set forth by the ISSC.
Application for the removal of the shellfish to be used for
human consumption from these areas will be considered
for transplant, transfer, relaying, depuration, and controlled
depuration. “Relaying” means the taking of shellfish from
areas other than approved areas for replanting in approved
areas for purposes of purification prior to marketing.
New Jersey Administrative Code 7:12-2.1 (a) ii, states
that shellfish growing waters are classified as “Prohibited
where docking or mooring facilities are provided for boats”.
The proposed facility would result in the downgrading of
water quality at the site to prohibited status, prohibiting
the taking of shellfish for human food purposes.
In conclusion, the project fails to meet the policy on
Shellfish Beds. The Shellfisheries Policy (7:7E-8.3)
contains similar restrictions and complements this Rule by
prohibiting mooring construction in estaurine bay and river
bottom which are potentially productive for hard and soft
clams. Therefore, the proposed activity also fails to meet
the Shellfisheries Rule and is prohibited.
70a
Appendix G
SUMMARY
The proposed project is prohibited for the reasons
discussed above and is hereby denied.
Any interested person who considers himself or herself
aggrieved by this permit decision may request a hearing on
this decision by submitting a written request for a hearing
to the following address: Office of Legal Affairs,
Department of Environmental Protection and Energy, CN
402, Trenton, NJ 08625-0402, Attention Adjudicatory
Hearing Requests.
| This written request must include a copy of the attached
Administrative Hearing Request Checklist and all
information identified in Section III of that list.
Pursuant to the Coastal Permit Program Rules,
specifically N.J.A.C. 7:7-5.1, written appeals must be
received by the Department at the above address within 10
days of publication of notice of the final decision in the
DEPE Bulletin, or within 10 days of publication of notice
by the permittee pursuant to N.J.A.C. 7:7-4.8(b), whichever
occurs first.
In order to promote intergovernmental cooperation in
management of our natural resources, a copy of this decision
shall be shared with appropriate local and federal agencies.
If you have any questions on this decision, please
contact the Program in writing at the above address or by
telephone at (609)984-0184.
Tila
Appendix G
Sincerely,
s/ Ruth Ehinger
Ruth Ehinger, Manager
Bureau of Coastal Regulation
c. US Army Corps of Engineers, Philadelphia District
Bureau of Coastal and Land Use Enforcement,
Toms River
Application File
Borough of Brielle Clerk
Borough of Brielle Planning Board
Borough of Brielle Construction Official
Monmouth County Planning Board
Sandra Groppenbaucher, Bureau of Marine Water
Classification and Analysis
James Joseph, Bureau of Shellfisheries
72a
APPENDIX H — PERTINENT STATE
REGULATIONS
New Jersey Administrative Code
N.J.A.C. 7:7E-3.2(a)
(a) Shellfish habitat is defined as an estuarine bay or
river bottom which has a history of production for hard
clams (Mercenaria mercenari), soft clams (Mya arenaria),
eastern oysters (Crassostrea virginicia), bay scallops
(Argopecten irradians), or blue mussels (Mytilus edulis),
or otherwise listed below in this section. A shellfish habitat
area is defined as an area which meets one or more of the
following criteria:
1. The area has a current shellfish density equal to or
greater than 0.20 shellfish per square foot;
2. The area has a history of natural shellfish production
according to data available to the New Jersey Bureau of
Shellfisheries ....
N.J.A.C. 7:7E-3.2(c)
(c) The water located under any boat mooring facility
(including docks and associated structures) is automatically
condemned and reduced to “prohibited” status pursuant to
N.J.A.C. 7:12-2.1(a)1lii. Development which would result
in the destruction, condemnation (downgrading of the
shellfish growing water classification) or contamination of
shellfish habitat is prohibited.
al a a
73a
Appendix H
N.J.A.C. 7:7E-3.2(d)
(d) Construction of a dock or boat moorings in shellfish
habitat is prohibited, except for the following:
1. Public fishing piers owned and controlled by a public
agency for the sole purpose of providing access for fishing;
and
2. In waters which have been classified as “prohibited”
for the purpose of harvesting shellfish.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.