In the Matter of the Implementation of L. 2012, C. 24

127 A.3d 711, 443 N.J. Super. 73

• Court: New Jersey Superior Court Appellate Division
• Decided: November 12, 2015
• Docket: A-4565-13T3
• Status: Published

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4565-13T3

IN THE MATTER OF THE IMPLEMENTATION OF L. 2012, APPROVED FOR PUBLICATION C. 24, N.J.S.A. 48:3-87(t) - A PROCEEDING TO ESTABLISH A November 12, 2015 PROGRAM TO PROVIDE SRECs TO CERTIFIED BROWNFIELDS, AREAS APPELLATE DIVISION OF HISTORICAL FILL, AND LANDFILL FACILITIES - MILLENIUM LAND DEVELOPMENT, LLC (LOVE LANE) _________________________________

Submitted September 22, 2015 – Decided November 12, 2015

Before Judges Reisner, Leone and Whipple.

On appeal from the New Jersey Board of Public Utilities.

Justin Michael Murphy, attorney for appellant Millenium Land Development.

John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Board of Public Utilities (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Jennifer Hsia, Deputy Attorney General, on the brief).

The opinion of the court was delivered by

REISNER, P.J.A.D.

Millenium Land Development (Millenium) appeals from a July

19, 2013 decision of the Board of Public Utilities (Board) and

from the Board's May 21, 2014 decision denying Millenium's

motion for reconsideration. In the May 21 decision, the Board confirmed its earlier rejection of Millenium's application filed

pursuant to the Solar Act, N.J.S.A. 48:3-87(t) (subsection (t)),

but stated different grounds for the rejection. We agree with

the Board that Millenium's application could not be considered

under subsection (t), because it concerned a solar project to be

sited on property which had been valued, assessed and taxed as

farmland, and such applications are governed by N.J.S.A. 48:3-

87(s) (subsection (s)). Moreover, there was no evidence that

the land was a contaminated industrial or commercial site within

the Act's definition of a brownfield. See N.J.S.A. 48:3-51.

Accordingly, we affirm.

I

As further discussed in section II of this opinion, the

Solar Act of 2012 (the Act), L. 2012, c. 24, amended the

Electric Discount and Energy Competition Act, N.J.S.A. 48:3-49

to -98.1, in an effort to further several goals of the State's

2011 Energy Master Plan. Those policies included promoting the

installation of solar projects on contaminated industrial and

commercial sites that would likely otherwise remain

unproductive, while "discouraging large-scale solar projects on

farmland and open space." Press Release, Office of the

Governor, Governor Christie Builds on Record of Growing

2 A-4565-13T3 Renewable Energy Sources with Action to Strengthen Solar Market

(July 23, 2012), http://www.state.nj.us/governor/news/news/55201

2/approved/20120723a.html.

Acting pursuant to subsection (t) of the Act, the Board

commenced a proceeding to consider applications for solar 1 projects to be sited on brownfield locations. The Act defines

"brownfield" as "any former or current commercial or industrial

site that is currently vacant or underutilized and on which

there has been, or there is suspected to have been, a discharge

of a contaminant." N.J.S.A. 48:3-51.2 Millenium, the contract

purchaser of land most recently used as an apple orchard,

submitted an application as part of the Board's proceeding,

claiming that its land was a brownfield because the application

of agricultural pesticides had left lead and arsenic in the

soil. Millenium planned to build a solar electric power

generation facility on the property, and the purpose of its

1 Subsection (t) also applies to solar projects located "on an area of historic fill or on a properly closed sanitary landfill facility," N.J.S.A. 48:3-87(t)(1), and the Board also invited applications relating to those properties. However, those provisions of subsection (t) are not addressed in this appeal, because Millenium only claimed that its land was a brownfield. 2 This definition tracks the language used to define "brownfield site" in the Brownfield and Contaminated Site Remediation Act, N.J.S.A. 58:10B-1, legislation aimed at "urban and suburban areas formerly used for commercial and industrial purposes." N.J.S.A. 58:10B-1.2.

3 A-4565-13T3 application was to qualify the project for solar renewable

energy certificates (SRECs) and other financial subsidies

available under the Act. See N.J.S.A. 48:3-87(t)(1).

In evaluating Millenium's application, the Board consulted

with the Department of Environmental Protection (DEP), as

required by the Act, N.J.S.A. 48:3-87(t)(1). On July 19, 2013,

the Board rejected Millenium's application, based on DEP's

advice that there had been no discharge of a contaminant on

Millenium's land, and hence it was not a "brownfield" as defined

by the Act. See N.J.S.A. 48:3-51. Millenium moved for

reconsideration of the Board's decision. On reconsideration, the

two agencies agreed that regardless of whether a discharge had

occurred, subsection (t) did not apply to Millenium's project

because it was to be sited on agricultural property.

Exercising its statutory authority under N.J.S.A. 48:2-

40(e) to reopen, modify or rehear its prior decisions, the Board

reconsidered the basis for its July decision. Based on the

undisputed factual record, the Board found that Millenium's

proposed site was agricultural land, which had been used as an

orchard and had been valued, assessed and taxed as farmland

pursuant to the Farmland Assessment Act of 1964, N.J.S.A. 54:4-

23.1 to -33. See N.J.S.A. 48:3-87(s). The Board further found

that Millenium had produced no evidence that the property had

4 A-4565-13T3 ever been used for commercial or industrial purposes, within the

Act's definition of "brownfield." See N.J.S.A. 48:3-51. The

Board also noted that Millenium had obtained land use approvals

to develop the property for residential use. Although the

housing development had been stalled by the slow real estate

market, the Board reasoned that treating the property as a

brownfield would be "contrary to the intent of the Solar Act and

[Energy Master Plan] in directing solar development on land that

is underutilized or difficult to develop."

Based on its findings, the Board concluded that

Millenium's land was not a brownfield for purposes of subsection

(t), but rather was farmland subject to subsection (s) of the

Act. See N.J.S.A. 48:3-87(s). Consequently, the agency

rejected Millenium's attempt to shoehorn its farmland-based

application into a proceeding open only to projects that

qualified for consideration under subsection (t).3

For the guidance of future potential applicants, the Board

stated:

[S]olar projects proposed to be located on land that has been actively devoted to agricultural or horticultural use that is valued, assessed, and taxed pursuant to the

3 The Board previously held a separate proceeding for subsection (s) applications. Apparently, Millenium did not submit an application for this property as part of the Board's subsection (s) proceeding.

5 A-4565-13T3 Farmland Assessment Act of 1964 at any time within the 10-year period prior to [July 24, 2012] will not be eligible for being designated on a brownfield, . . . for purposes of qualifying for SRECs under Subsection T of the Solar Act.

The agency also directed its staff to draft regulations

reflecting its decision.

II

On this appeal, the Board's decision is "entitled to

presumptive validity." In re N.J. Am. Water Co., 169 N.J. 181,

188 (2001) (citation and internal quotation marks omitted).

Pursuant to N.J.S.A. 48:2-46, this court may

review any order of the board and . . . set aside such order in whole or in part when it clearly appears that there was no evidence before the board to support the same reasonably or that the same was without the jurisdiction of the board.

[N.J.S.A. 48:2-46.]

We may reverse the agency's decision only if it is

"arbitrary, capricious, unreasonable or beyond the agency's

delegated powers." N.J. Am. Water, supra, 169 N.J. at 188

(citation and internal quotation marks omitted). With respect

to both the Board and the DEP, we review legal issues de novo,

but we will ordinarily defer to the agencies' reasonable

construction of statutes they are charged with implementing.

See In re Pub. Serv. Elec. & Gas Company's Rate Unbundling, 167

6 A-4565-13T3 N.J. 377, 384 (2001); SJC Builders, LLC v. N.J. Dep't of Envtl.

Prot., 378 N.J. Super. 50, 54 (App. Div. 2005).

We agree with the Board that projects sited on agricultural

property valued, assessed and taxed as farmland do not qualify

as brownfields for purposes of subsection (t). Absent

exceptions not relevant here, projects sited on farmland are

governed by subsection (s) of the Solar Act, N.J.S.A. 48:3-

87(s), which by its terms specifically addresses farmland-based

solar projects. Subsection (s) provides in pertinent part:

[A] solar electric power generation facility that is not net metered or an on-site generation facility and which is located on land that has been actively devoted to agricultural or horticultural use that is valued, assessed, and taxed pursuant to the "Farmland Assessment Act of 1964," P.L.1964, c.48 (C.54:4-23.1 et seq.) at any time within the 10-year period prior to the effective date of P.L.2012, c.24, shall only be considered "connected to the distribution system" if (1) the board approves the facility's designation pursuant to subsection q. of this section; or (2) (a) PJM issued a System Impact Study for the facility on or before June 30, 2011, (b) the facility files a notice with the board within 60 days of the effective date of P.L. 2012, c. 24, indicating its intent to qualify under this subsection, and (c) the facility has been approved as "connected to the distribution system" by the board.

[N.J.S.A. 48:3-87(s) (emphasis added).]

By its unambiguous terms, the Solar Act requires farmland-

based applications to be submitted under subsection (s), unless

7 A-4565-13T3 they are "net metered or an on-site generation facility,"

N.J.S.A. 48:3-87(s), exceptions which Millenium does not claim

apply here. Projects to which subsection (s) applies must

satisfy a more stringent set of criteria than applications which

are subject to subsection (t). Compare N.J.S.A. 48:3-87(s), and

(q), with N.J.S.A. 48:3-87(t) ("Projects certified under this

subsection shall be considered 'connected to the distribution

system[,]' shall not require such designation by the board, and

shall not be subject to board review required pursuant to

subsections q. and r. of this section."). Millenium's

application was properly rejected, because it should have been

submitted under subsection (s), and the proceeding before the

Board was limited to applications submitted under subsection

(t).

We also agree with the Board that its construction of the

Solar Act is consistent with the State's 2011 Energy Master Plan

(EMP). N.J. BD. OF PUB. UTIL., N.J. ENERGY MASTER PLAN (2011),

http://www.nj.gov/emp/docs/pdf/2011_Final_Energy_Master_Plan.pdf.

One goal of the EMP, as reflected in the Solar Act, is to

encourage the construction of solar energy facilities on

polluted former commercial and industrial land, which is not

readily usable for general commercial or residential purposes.

Id. at 107. Thus, subsection (t) makes it relatively easy to

8 A-4565-13T3 obtain financial subsidies for those projects. On the other

hand, as the Board's decision noted, in requiring farmland-sited

solar projects to satisfy a higher standard, the Legislature

also acted consistent with the EMP, which specifically

discourages the use of agricultural land for solar projects.

See ibid. Those legislative purposes were confirmed in a press

release issued by the Governor's Office on the day the Act was

signed. See Press Release, Office of the Governor, supra.

"[S]uch 'communications from the Executive Branch offer a

reliable aid in determining legislative intent.'" State v.

Drury, 190 N.J. 197, 212 (2007) (quoting State v. Sutton, 132

N.J. 471, 483 (1993)).

Accordingly, we find no basis to depart from our usual rule

of deference to an agency's reasonable construction of a statute

it is charged with implementing. See In re PSE&G Rate

Unbundling, supra, 167 N.J. at 384; see also SJC Builders,

supra, 378 N.J. Super. at 54.

Millenium's appellate arguments are without sufficient

merit to warrant discussion beyond these comments. R. 2:11-

3(e)(1)(E). Most of Millenium's brief is devoted to criticizing

the July 19, 2013 decision and the Board's and DEP's conclusion

that there was no discharge on the property. However, because

we conclude that the May 21, 2104 decision was correct, those

9 A-4565-13T3 arguments are irrelevant. Subsection (s) unambiguously

precludes a subsection (t) application for a solar project on

this property, because it is agricultural land that was valued,

assessed and taxed as farmland within the ten-year period prior

to the effective date of the Solar Act. See N.J.S.A. 48:3-

87(s). Moreover, Millenium produced no evidence that the

property was "a former or current commercial or industrial

site." See N.J.S.A. 48:3-51.

Affirmed.

10 A-4565-13T3