A New Jersey judge has issued what is believed to be the first decision invalidating a riparian-rights claim based on failure to comply with a 1981 state constitutional amendment.
That provision gave the state one year to file claims on riparian lands that had been filled in more than 40 years earlier, lest the claims be extinguished.
The ruling, if it holds up, could have a wide spill-over effect, since New Jersey allegedly filed over 700 riparian claim maps touching on 17 counties and hundreds of municipalities. Any of those filed beyond the one-year limit could likewise be invalidated.
In the case just decided, Lisowski v. Borough of Avalon, the claim map was filed with Cape May County six weeks late and may not have been filed with the municipality at all.
The state sought to condemn bayfront property, owned by Clara and William Lisowski, on which a tidal creek had been filled in during the 1930s.
It asserted that the state Tidelands Resource Council met filing riparian claim deadlines with the secretary of state, the county and the town.
Superior Court Judge Raymond Batten granted the state summary judgment on May 3, saying failure to file maps on time was "not a defective circumstance that undermines" the claim's enforceability.
He relied on Dickinson v. Fund for Support of Free Public Schools, 95 N.J. 65 (1983), in which the court rejected a challenge to the 1981 constitutional amendment.
Batten said the Dickinson court held that triplicate filing of with the state, county and town was not required.
The plaintiffs' lawyer, Richard Hluchan of Hyland Levin in Marlton, moved for reconsideration, citing City of Jersey City v. Tidelands Resource Council, 95 N.J. 100 (1983), which clarified Dickinson, mandating triplicate filings.
On June 27, Batten granted the motion and found the state claim defective because of the failure to file maps on time.
Lewis Goldshore, a Princeton environmental lawyer, says the state is certain to appeal. "I think the appellate court will make a very searching examination of whether a procedural defect can defeat a constitutionally based and constitutionally recognized claim," Goldshore says.
The state was represented by Deputy Attorney General Melissa Abatemarco. The Attorney General's Office and the Department of Environmental Protection, in which the Tidelands Resource Council is housed, did not return calls.