DANIEL RITTER v. HARBOR COMMISSION OF THE BOROUGH OF ATLANTIC HIGHLANDS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2044-11T4

DANIEL RITTER,

Plaintiff-Appellant,

v.

HARBOR COMMISSION OF THE BOROUGH

OF ATLANTIC HIGHLANDS AND BOROUGH

OF ATLANTIC HIGHLANDS,

Defendants-Respondents.

_________________________________________________

February 1, 2013

Argued September 11, 2012 - Decided

Before Judges Fisher, Waugh and St. John.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2545-10.

Walter M. Luers argued the cause for appellant (Law Offices of Walter M. Luers, L.L.C., attorneys; Mr. Luers, on the briefs).

Bernard M. Reilly argued the cause for respondents (Bernard M. Reilly, L.L.C., attorneys; Mr. Reilly, on the brief).

PER CURIAM

Plaintiff Daniel Ritter appeals from the September 22, 2011 order of the Law Division granting summary judgment to defendants Harbor Commission of the Borough of Atlantic Highlands (the Commission) and Borough of Atlantic Highlands (Borough).

I.

The Commission operates and maintains the Atlantic Highlands Municipal Harbor, which consists of docks, piers, slips for commercial fishing vessels, an inter-state ferry, moorings for recreational vessels, and related facilities. The State, not the Commission or the Borough, owns the title to the land underneath the Harbor.

Pursuant to a revocable license/lease, the State of New Jersey, acting through the Tidelands Resource Council of the Department of Environmental Protection, authorized the Borough to use certain areas of the harbor for the use and maintenance of 172 moorings in two specific mooring fields designated as "Upper Mooring Field" and "Lower Mooring Field." The Borough delegated operation of the harbor to the Commission. See N.J.S.A. 40:68-22.

For five seasons through October 2009, Ritter leased a mooring space from the Commission. In May 2009, without authorization or payment, Ritter placed a second private mooring in the Commission's mooring field. He was notified by the Commission that his second mooring must be removed. When Ritter's lease expired in October 2009, the Commission did not offer him a new lease for the 2010 season. In June 2010, Ritter placed a new private mooring outside of the Borough's licensed mooring field in the area referred to as the refuge area. As a result, Ritter no longer pays annual rent for the use of a mooring space, which was $1885 per year in 2009.

The parties do not dispute the Borough's authority, which it has delegated to the Commission, to establish rules, regulations, and fees for the use of the Harbor and its facilities. N.J.S.A. 40:61-22.20.

Ritter now asserts a right to access his mooring through areas controlled by the Borough or the Commission. Ritter acknowledges there are four ways for him to reach his mooring. The first way is to use the launch service offered by the Atlantic Highlands Yacht Club where he is a member. However, the Commission and the Yacht Club have agreed that this launch service is only to be used to take club members to the Commission's mooring fields. Second, he would like to use the Commission's small beach in the harbor from which he could launch a small boat to access his private mooring. This area is not available for that purpose to either mooring lessees or the general public. Third, he would like the Commission to issue to him a dinghy permit which would allow him to store his dinghy at a facility maintained by the Commission. However, the dinghy storage permits are only available to members of the public holding a lease for one of the Commission's 172 public moorings.

Finally, both the Commission and Ritter agree that he could launch a boat from a ramp at the base of Avenue A. The Avenue A launch is under the supervision of Commission personnel and is open to the general public, residents and non-residents alike, for a specified use fee. Although Ritter acknowledges that he could launch from this site, he deems it inconvenient and unsafe. Ritter contends that it is unsafe because he would like to use a very small boat and, secondly, it is inconvenient because his private mooring is a greater distance from the Avenue A launch than from the Commission's facilities.

II.

Ritter filed a four count amended complaint against the defendants in which he alleged violation of the public trust doctrine; conversion; violation of the Open Public Records Act, N.J.S.A. 47:1A-1 to -13; and violation of the common law right of access. Prior to the issuance of the order under review, the parties agreed to dismiss with prejudice all counts except for the alleged violation of the public trust doctrine. After the parties concluded discovery, defendants moved for summary judgment and Ritter cross-moved for summary judgment. The motion judge granted defendants' motion and denied Ritter's motion.

In reviewing a grant of summary judgment, an appellate court applies the same standard under Rule 4:46-2(c) that governs the trial court. See Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007). The court must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

In this case, the facts are not genuinely disputed. The issue is legal concerning the right of Ritter to use of the property and licensed tidelands of defendants without payment to the Commission or the Borough. Ritter asserts that defendants violated the public trust doctrine by interfering with his access to his private mooring. We disagree.

The public trust doctrine derives from the English common law principle that all of the land covered by tidal waters belongs to the sovereign held in trust for the people to use. Raleigh Ave. Beach Ass'n v. Atlantis Beach Club, Inc., 185 N.J. 40, 51-52 (2005). "Although the states have the inherent authority to convey riparian grants to private persons, the sovereign never waives its right to regulate the use of public trust property." Karam v. State, 308 N.J. Super. 225, 240 (App. Div. 1998) (internal citation omitted). Referring to the common public trust property, including "all navigable rivers in which the tide ebbs and flows and the coasts of the sea," the water and land under the water, and riparian interests in tidally flowed lands, our Supreme Court has recognized that "'[t]he State can no more abdicate its trust over property in which the whole people are interested . . . than it can abdicate its police powers[.]" Matthews v. Bay Head Improv. Ass'n, 95 N.J. 306, 319 (1984) (quoting from Illinois Central R.R. v. Illinois, 146 U.S. 387, 453, 13 S. Ct. 110, 118, 36 L. Ed. 1018, 1043 (1892)), cert. denied, Bay Head Improv. Ass'n. v. Matthews, 469 U.S. 821, 105 S. Ct. 93, 83 L. Ed. 2d 39 (1984).

In Arnold v. Mundy, 6 N.J.L. 1, 53 (E. & A. 1821), the first case concerning the public trust doctrine in New Jersey, the Court explained that upon the Colonies' victory in the Revolutionary War, the English sovereign's rights to the tidal waters "became vested in the people of New Jersey as the sovereign of the country, and are now in their hands." Arnold addressed the plaintiff's claim to an oyster bed in the Raritan River adjacent to his farm in Perth Amboy. Id. at 45. The Court found that the land on which water ebbs and flows, including the land between the high and low water, belongs not to the owners of the lands adjacent to the water, but to the State, "to be held, protected, and regulated for the common use and benefit." Id. at 49, 71.

Subsequently, in Martin v. Waddell, 41 U.S. 367, 16 Pet. 367, 10 L. Ed. 997 (1842), the Supreme Court held against the private exclusive use of an owner even though that use did not reach the level of interference with public rights presented by outright private ownership of public trust tidelands and waters. See id. at 407-08, 10 L. Ed at 1012. The Supreme Court sustained the denial of a claim of exclusive right to fish for oysters in Raritan Bay, New Jersey, based on a charter granted in 1664 by Charles II to his brother, the Duke of York to colonize the area. See id. at 407, 410-11, 10 L. Ed 1012-13. The decision stated that in the United States, such a grant "must therefore manifestly be tried and determined by different principles from those which apply to grants of the British crown, when the title is held by a single individual in trust for the whole nation." Id. at 410-11, 10 L. Ed. 1013. In the United States, since the Revolution, the people as sovereign "hold the absolute right to all their navigable waters and the soils under them for their own common use, subject only to the rights . . . surrendered by the Constitution to the general government." Id. at 410, 10 L. Ed. 1013.

The public trust doctrine has been interpreted to require broad public access to those lands that are held in public trust. Van Ness v. Borough of Deal, 78 N.J. 174, 179-80 (1978) (noting that public trust doctrine requires that public have use and enjoyment of beaches owned by municipality); Borough of Neptune City v. Borough of Avon-by-the-Sea, 61 N.J. 296, 308-09 (1972) (noting that public trust doctrine dictates that when municipality owns upland sand, beach and ocean must be available on equal terms to entire public). In Neptune City, supra, the Court recognized that "[t]he public trust doctrine . . . should be molded and extended to meet changing conditions and needs of the public it was created to benefit." 61 N.J. at 309.

In evaluating claims brought under the doctrine, the Court has stated that "[t]he public interest is satisfied so long as there is reasonable access to the sea." Matthews, supra, 95 N.J. at 324. "This does not mean the public has an unrestricted right to cross at will over any and all property bordering on the common property." Ibid.

Ritter's unfettered and unsupervised access to the refuge area over property of the Borough or the Commission, particularly through the marina mooring area, is not mandated by the public use doctrine, given the reasonable access available to him and the general public at the Avenue A launching site. Additionally, the State's policy recognizes that "[a]ny use that would detract from existing or proposed recreational boating use in marina mooring areas is discouraged." N.J.A.C. 7:7E-3.10(c).1

The motion judge determined in granting summary judgment to the defendants that "[t]he [public trust] doctrine, in fact, authorizes reasonable limits to be established and enforced for the use of the public beaches and water recreational facilities." The Commission provides members of the general public reasonable access to the harbor at the Avenue A ramp. The fact that Ritter does not want to avail himself of that access because he finds it inconvenient and because he chooses to use a vessel unsafe for that purpose, does not defeat the defendants' compliance with the public trust doctrine.

A

1 "Marina moorings are areas of water that provide mooring, docking and boat maneuvering room as well as access to land and navigational channels for five or more recreational boats." N.J.A.C. 7:7E-3.10(a).