IN THE MATTER OF THE IMPLEMENTATION OF L. 2012, C. 24, THE SOLAR ACT OF 2012, ETC. (BOARD OF PUBLIC UTILITIES)

• Court: New Jersey Superior Court Appellate Division
• Decided: October 20, 2017
• Docket: A-4666-15T3
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4666-15T3

IN THE MATTER OF THE IMPLEMENTATION OF L. 2012, C. 24, THE SOLAR ACT OF 2012; IN THE MATTER OF THE IMPLEMENTATION OF L. 2012, C. 24 N.J.S.A. 48:3-87(Q) (R) and (S) – PROCEEDINGS TO ESTABLISH THE PROCESSES FOR DESIGNING CERTAIN GRID- SUPPLY PROJECTS AS CONNECTED TO THE DISTRIBUTION SYSTEM; BRICKYARD, LLC. ______________________________

Argued September 26, 2017 – Decided October 20, 2017

Before Judges Reisner and Mayer.

On appeal from the Board of Public Utilities, Docket Nos. EO12090832V, EO12090880V, and QO13101020.

Steven W. Griegel argued the cause for appellant Brickyard, LLC (Roselli Griegel Lozier & Lazzaro, PC; Mr. Griegel, on the briefs).

Renee Greenberg, Deputy Attorney General, argued the cause for respondent New Jersey Board of Public Utilities (Christopher S. Porrino, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Greenberg, on the brief). PER CURIAM

Brickyard, LLC appeals from a May 25, 2016 final decision of

the Board of Public Utilities, denying Brickyard's application for

an extension of time beyond May 31, 2016 to complete construction

of Phase II of its solar energy project, pursuant to N.J.S.A.

48:3-87(q) of the Solar Act. The Board initially disapproved the

Phase II project, but later granted approval as part of the

settlement of Brickyard's appeal from the disapproval decision.

On this appeal, Brickyard contends that the Board erred in

rejecting Brickyard's proffered interpretation of the settlement

as permitting completion of the project after May 31, 2016. In

the alternative, Brickyard contends that the Board acted

arbitrarily in denying its extension request while granting an

extension to a similarly-situated applicant, True Green Capital

Management LLC (True Green), and that the Board failed to explain

its reasons for the different treatment.

The Board's May 25, 2016 decision thoroughly explained the

applicable statutory scheme, set forth in section 87(q) of the

Solar Act of 2012, L. 2012, c. 24, and the procedural history of

this matter. Those details need not be repeated here. Suffice

to say that the purpose of the Act is to encourage the development

of solar energy, and what is at stake for Brickyard is the

opportunity to obtain financial subsidies for the energy that

2 A-4666-15T3 would be produced by its Phase II solar project. See In re

Implementation of L. 2012, C. 24, 443 N.J. Super. 73, 75-76 (App.

Div. 2015).

Our review of a contract, including a settlement agreement,

is de novo. GMAC Mortg., LLC v. Willoughby, 230 N.J. 172, 183

(2017). After considering the record in light of that standard,

we agree with the Board that the settlement was unambiguous. It

required Brickyard to complete construction of the Phase II project

by May 31, 2016, which was the deadline that applied to all solar

projects approved under 87(q) for Energy Year 2015 (EY2015). In

fact, on June 23, 2015, shortly after the appeal was settled and

the Board approved the Phase II project, the agency sent Brickyard

written notice of the May 31, 2016 deadline, to which Brickyard

raised no objection. Brickyard's arguments with respect to the

construction of the settlement agreement are without sufficient

merit to warrant further discussion. R. 2:11-3(e)(1)(E).

However, we are constrained to remand this matter to the

Board for reconsideration, because the agency did not meaningfully

consider or sufficiently explain why, having placed Brickyard in

the same position as any other EY2015 applicant, it did not then

apply the same considerations to Brickyard that it applied to True

Green, another applicant that previously sought an extension. See

In The Matter Of The Implementation Of L. 2012, C. 24, The Solar

3 A-4666-15T3 Act Of 2012; And In The Matter Of The Petition Of True Green

Capital Management LLC For An Extension Of The Designation Date

Set Forth In The Matter Of Augusta Solar Farms (Docket No.

QO13101014) Pursuant To N.J.S.A. 48:3-87(Q), 2016 N.J. PUC LEXIS

58 (Feb. 24, 2016).1 In the True Green case, the applicant sought

an extension of the deadline for its FY2014 project, due to

extraordinary circumstances, including the inability of its

contractor to finish construction. The Board granted the

application as a matter of equity, noting that no other FY2014

applicant had sought an extension. In seeking a minimum six-month

extension, Brickyard submitted a detailed certification explaining

why it was unable to complete the project and explaining the

extensive steps it had already taken toward completion. On its

face, the application set forth many of the same factors present

in the True Green matter.

However, in rejecting Brickyard's application, the Board made

no effort to distinguish True Green, other than the conclusory

statement that Brickyard's section 87(q) approval resulted from a

settlement. The Board did not explain why the deadline set forth

in the settlement was essential or why, in its capacity as an

1 Ordinarily we do not cite to unpublished decisions of courts or agencies. However, we cite this agency decision because it is directly relevant to the history of the Board's decision-making under section 87(q) and is central to the issue before us.

4 A-4666-15T3 adjudicator rather than as a litigant, the Board considered the

settlement as a definitive factor. Nor did it provide any

meaningful analysis of whether Brickyard's extension application

otherwise differed from that of True Green.

Ordinarily, our review of an agency decision is deferential.

See E. Orange Bd. of Educ. v. N.J. Sch. Constr. Corp., 405 N.J.

Super. 132, 143-44 (App. Div.), certif. denied, 199 N.J. 540

(2009). "However, the exercise of such deference is premised on

our confidence that there has been a careful consideration of the

facts in issue and appropriate findings addressing the critical

issues in dispute." Bailey v. Bd. of Review, 339 N.J. Super. 29,

33 (App. Div. 2001); see also N.J. Bell Tel. Co. v. Commc'ns

Workers, 5 N.J. 354, 374-79 (1950). In this case, it was incumbent

on the Board to give due consideration to Brickyard's arguments

and "to explain, in this case, why an exception was permitted in

the past" and, if Brickyard's application was sufficiently

different from that of True Green as to warrant a different result,

what factors led the agency to that conclusion. Green v. State

Health Benefits Comm'n, 373 N.J. Super. 408, 417-18 (App. Div.

2004).

The agency's failure to accord that consideration, and to

provide an explanation sufficient for meaningful appellate review,

requires that we remand this matter to the Board for

5 A-4666-15T3 reconsideration and a more complete decision. In remanding, we

infer no view as to the outcome of the proceedings on remand.

Remanded. We do not retain jurisdiction.

6 A-4666-15T3