NJDEP makes illegitimate Riparian Claims in Cape May County

It’s time for Governor Murphy to actually investigate wrong doing at NJDEP. In 2018, the Murphy Administration established the Office of Public Integrity & Accountability to investigate violations of public trust and to develop policies that would rebuild faith in State government. Perhaps the OPIA has been effective against bribery and blatant criminal activity. But, what about corruption which benefits State agencies to the detriment of ordinary citizens? When I contacted OPIA about such corruption at NJDEP, I was told by the detective that while there has likely been a violation of administrative code and/or ethics, there is nothing he can do because there was no violation of criminal code. Evidently what matters is whether you are stealing for the State or for personal gain.

Please bear with me on the details, but here is an account of corruption at NJDEP:

My parents had bought a house at the shore in 1973 in an ongoing development of about 250 homes known as Ocean City Homes. By law, the State owns all tidally flowed tributaries. So, when tributaries were filled in, the State sells a riparian grant to receive compensation for the former tributaries. This was common practice prior to the Wetlands Protection Act. In 1978 (after 10 years of foot dragging by the State), the State issued a riparian grant to the developer of OC Homes. I spoke with the former VP of OC Homes (now in his 90’s) and he confirmed that the grant was to cover all of the former tributaries within the OC Homes development (nothing else would make any sense).

The tributaries for the grant were identified by the State’s accepted practice (at that time) of having a State licensed surveyor survey the tributaries. The State then used that survey to make a rough sketch of the tributaries to be included in the grant document. But things changed in 1979 (a year after the grant was issued to OC Homes). Here’s why… Legislation had been adopted in 1969 directing the Tidelands Resource Council to conduct surveys of the state’s meadowlands because of state-wide confusion over what the State actually owned. After a good amount of legal wrangling over various mapping techniques, the Department of Environmental Protection settled on a mapping technique based on existing aerial photographic data. This technique was upheld by the Appellate Court in 1979 at which time the court also observed: “"[i] t is also apparent that the conventional method of land surveying is wholly unreliable and inappropriate for the purpose of identifying whether lands are now or were formerly flowed by mean high tide as a basis for the State's claims of ownership." In other words, the accepted practice of surveying tributaries (which was used for the 1978 grant) was found by the courts to be flawed. Even so, that finding shouldn’t really matter because the language in the grant document said that it covered all former flows within OC Homes and the intent of the State to convey all of its interest within OC Homes was clear when it was signed.

There were no (illegitimate) riparian claim issues in OC Homes until the early 1990’s when the State began to stop honoring the 1978 grant to OC Homes. Around that time, the State began to demand compensation for differences between what appears in the aerial photograph but wasn’t shown on the sketch of tributaries included in the grant document (despite the fact that the grant language says the State assigns forever “All that tract of land now or formerly flowed by tidewaters” within the OC Homes development). It also doesn’t seem to bother the State that the sketch is highly inaccurate, is not to scale, and has no legal description (metes and bounds) for the tributaries. Just take a look at the diagram. The State uses subjective reasoning in conjunction with the sketch in the 1978 grant document to determine if they think they deserve additional compensation (meaning you have to buy a grant).

There is quite a bit of evidence supporting the fact that the State sold all of its interest in the 1978 grant to OC Homes and I have posted these details including my sources to https://www.facebook.com/groups/975578822869370

If you find an illegitimate claim by the State on your property, you basically have a couple choices. You can take the State to court and argue your case (but that will likely cost $50k or more). Alternatively, you can talk to the Chief of the Bureau of Tidelands Management (Randy Bearce) or go to the Tidelands Resource Council (TRC) and plead your case to them. Don’t expect to get anywhere with Mr. Bearce; it’s my opinion that he is the person behind illegitimate claims such as all of those in OC Homes. The problem with the TRC is that the TRC is plagued by Conflict of Interest. Members sell their services to represent clients in cases brought before the TRC for grants, etc. They then recuse themselves for the specific cases in which they are representing a client. Thus, it is in the interest of the TRC members to not go against the State because they can leverage their position as members of the TRC to leverage business. In one conversation that I had with a member, I was told that he couldn't represent me because he could never go against the State and I was disputing the State's claim since it was illegitimate. The TRC only provides an illusion of legitimacy and should be abolished. TRC members receive no compensation from the State for serving on the council, so their only benefit is the business that it brings them. TRC members also receive no training and have no guidelines (I asked for such materials through a Open Public Record Access Request and was told none exist)

I presented my case to the TRC. The meetings were recorded and are posted on my YouTube Channel https://www.youtube.com/channel/UCR6n-74d1PDy_wfRRDtvVsg ). The TRC basically stuck to the claim that the sketch in the grant document was all that mattered despite that the grant language says the State assigns forever “All that tract of land now or formerly flowed by tidewaters” within the OC Homes development. One of the more outspoken Council Members made it clear that they were not interested in any the evidence that I presented; he stated: “Extrinsic evidence can be considered in a court of law which we are not. okay. We're looking at this at the four corners of this document and it's clear that this document that this grant conveys no more than 1.14 acres.” That same council member showed that his real concern was the grants that the State previously sold to homeowners in OC Homes. He says: “there's in excess of 20 properties that are affected by this particular stream and we've already issued multiple grants along this stream for other people. So, the state has granted property and collected funds from many people. You see all the little circles, the little 19, 20, you know, 21, 18? All those numbers. Those are all grants that the um which the council has issued to other people on this very same exact stream. So, if we say that this stream didn't really exist or was included in the former grant, then all those people paid for nothing.” I guess unethical behavior is acceptable when you are stealing for the State.

Vincent Mazzei, Assistant Commissioner for Watershed and Land Management (at that time), agreed to review my case in June of 2021. I was given a ‘conservative’ estimate of 60 days for the review to take place. In August of 2021, I was told: “The program has reviewed the matter. A written response is forthcoming, hopefully within the next week.” That didn’t occur despite my repeated request for status. At my urging, Mr. Mazzei finally agreed to a virtual meeting in November. I had felt at the time that the meeting went well. On January 2nd 2022, I finally received a written response rejecting my request to remove the State’s claim on my property but the rationale cited incorrect facts. So, I contacted his office again and pointed this out. In March 2022, I got a second written response in which Mr. Mazzei punted and told me to go back to the TRC to resolve the matter. Yeah, right….

I sent a letter to the Governor’s Office via certified mail (delivered August 27, 2022) but received no response. That letter specifically requested a review of NJDEP File #0508-20-0036.1 TDG220001 by an independent team including the State Ethics Commission to ascertain if the actions of individuals described in this letter violate the Public Trust or Administrative Code. I received no response.

You can learn more about NJDEP's questionable practices at:

Facebook Group “NJ - Tidelands Riparian Claims”

https://www.facebook.com/groups/975578822869370