In the Matter of the New Jersey Solar Transition Pursuant to P.L. 2018, C. 17 – Application for Certification of Solar Facility, Etc.

CourtNew Jersey Superior Court Appellate Division
DecidedDecember 29, 2025
DocketA-0424-24
StatusUnpublished

This text of In the Matter of the New Jersey Solar Transition Pursuant to P.L. 2018, C. 17 – Application for Certification of Solar Facility, Etc. (In the Matter of the New Jersey Solar Transition Pursuant to P.L. 2018, C. 17 – Application for Certification of Solar Facility, Etc.) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In the Matter of the New Jersey Solar Transition Pursuant to P.L. 2018, C. 17 – Application for Certification of Solar Facility, Etc., (N.J. Ct. App. 2025).

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0424-24

IN THE MATTER OF THE NEW JERSEY SOLAR TRANSITION PURSUANT TO P.L. 2018, C. 17 – APPLICATION FOR CERTIFICATION OF SOLAR FACILITY AS ELIGIBLE FOR TRECS PURSUANT TO SUBSECTION (T) OF THE SOLAR ACT OF 2012 – KOBER SOLAR AUTO PARTS, INC. ______________________________

Argued October 29, 2025 – Decided December 29, 2025

Before Judges Gummer, Paganelli and Vanek.

On appeal from the New Jersey Board of Public Utilities, Docket No. QO21081098.

Michael H. Freeman argued the cause for appellant CEP Renewables, LLC (Genova Burns LLC, attorneys; Kenneth J. Sheehan, of counsel and on the briefs).

Jordan K. Mitchell, Deputy Attorney General, argued the cause for respondent New Jersey Board of Public Utilities (Matthew J. Platkin, Attorney General, attorney; Janet Greenberg Cohen, Assistant Attorney General, of counsel; Jordan K. Mitchell, on the brief). Andrew M. Kuntz, Assistant Deputy Rate Counsel, argued the cause for respondent New Jersey Division of Rate Counsel (Brian O. Lipman, Director, attorney; Megan C. Lupo, on the brief).

PER CURIAM

CEP Renewables, LLC (CEP)1 appeals from a final agency decision of the

Board of Public Utilities (the BPU) denying its application for conditional

certification of a solar energy project seeking Transitional Renewable Energy

Certificates (TRECs) under the Transition Incentive (TI) program pursuant to

N.J.S.A. 48:3-87(t). We affirm.

I.

We glean the facts and procedural history from the record. On August 26,

2021, CEP applied under N.J.S.A. 48:3-87(t) (subsection (t)) of the Solar Act of

2012, N.J.S.A. 48:3-51 to -87 (the Solar Act) for conditional certification of the

Kober Solar Farm (Kober Site) as a subsection (t) solar facility project. CEP

requested a conditional certification for eligibility to receive TRECs for its

proposed solar electric generation facility at the Kober Site pursuant to the TI

program. In its application, CEP described the Kober Site as a former auto

1 Appellant is variously identified as Kober Solar Auto Parts, Inc., CEP Renewables, LLC, and Kober Solar Farm, LLC in the record. We refer to the appellant as CEP, consistent with the Notice of Appeal.

A-0424-24 2 junkyard and salvage yard operating as Kober's Auto Parts and Kober's Truck

Parts since the 1950s. Kober Auto Parts was registered as an auto recycler with

the New Jersey Department of Environmental Protection (DEP) Solid Waste

Program.

At the time of the application, CEP had entered into an agreement to

purchase the Kober Site from the Estate of William G. Kober. CEP

acknowledged the Kober Site had been tax assessed as farmland and that the

now-deceased prior owner, William G. Kober, had used portions of the property

as a "farm for animal feed." However, CEP claimed the assessment did not

reflect "the widespread industrial use of the junkyard auto recycling business"

and that the "remaining soils do not support a sustainable agricultural crop due

to the contamination and metal debris at the site."

On December 10, 2021, the BPU forwarded CEP's application to the DEP

to determine whether the Kober Site was a brownfield that was eligible to

receive TI solar incentives.2 After its review, the DEP issued an advisory

memorandum, concluding the site did not qualify as a brownfield because the

land "has been actively devoted to agricultural or horticultural use that is valued,

2 A "brownfield" is "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. A-0424-24 3 assessed, and taxed pursuant to the Farmland Assessment Act [(FAA), N.J.S.A.

54:4-23.1] . . . within the ten . . . year period prior to July 24, 2012" (the

Farmland Lookback). The DEP found:

Current and historical aerial imagery . . . indicate[d] the location of the proposed . . . solar array, [the Kober Site], is and has been devoted to agriculture or horticulture, and hence taxed as such by the local tax assessor. The [DEP]'s 2002 [i]nfrared [i]magery, the 2007 [c]olor [i]magery[,] and the 2012 [c]olor [i]magery of the property show all, or portions of each, parcel(s) for the proposed . . . solar array, as being utilized for agriculture or horticulture use. . . .

Additionally, consultation with the State Agriculture Development Committee (SADC) staff revealed that the portion of the [property], is a targeted farm in Harmony's Farmland Preservation Plan adopted in October 2021. . . .

The DEP concluded the Kober Site had been actively devoted to agricultural or

horticultural use and, therefore, did not constitute a brownfield and did not

qualify for TRECs under subsection (t).

On June 27, 2024, the BPU denied CEP's subsection (t) application, based

on its determination that N.J.S.A 48:3-87(s) (subsection (s)) imposes additional

restrictions "on land that has been actively devoted to agricultural or

horticultural use that is valued, assessed, and taxed pursuant to the [FAA]" at

any time within the Farmland Lookback. Specifically, the BPU found the

A-0424-24 4 proposed site was qualified farmland during the Farmland Lookback, predicated

on prior certified annual farmland applications from 2014 to 2021 evidencing

agricultural use, photographic color aerial imagery that revealed the Kober Site

was actively farmed in 2002, 2007 and 2012, the Kober Site's location within

the Warren County Agricultural Development Area, and tax records from 2004

to 2021 which demonstrated the Kober Site was assessed as qualified farmland.

CEP sought reconsideration of the BPU's denial. Because the BPU did

"not grant[] or otherwise expressly act[] upon" the reconsideration motion, it

was deemed denied pursuant to N.J.A.C. 14:1-8.7(c).

II.

N.J.S.A. 48:2-46 vests the Appellate Division with jurisdiction to review

BPU orders. Because "the BPU's power to regulate utilities is broad," In re

Centex Homes, LLC, 411 N.J. Super. 244, 254 (App. Div. 2009), its "rulings are

entitled to presumptive validity." In re N.J. Am. Water Co., 169 N.J. 181, 188

(2001) (quoting In re Petition of Jersey Cent. Power & Light Co., 85 N.J. 520,

527 (1981)). We will not disturb a BPU determination unless it was "arbitrary,

capricious, unreasonable, or beyond the agency's delegated powers." N.J. Am.

Water Co., 169 N.J. at 188 (quoting In re Amend. of N.J.A.C. 8:31B-3.31, 119

N.J. 531, 544 (1990)).

A-0424-24 5 Our review of a BPU decision, as with all administrative agency

determinations, is deferential and limited. Bd. of Educ. of Sparta v. M.N., 258

N.J. 333, 342 (2024). We focus on:

(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law;

(2) whether the record contains substantial evidence to support the findings on which the agency based its action; and

(3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.

[Allstars Auto Grp. v. N.J.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In Re Amendment of N.J.A.C. 8:31B-3.31
575 A.2d 481 (Supreme Court of New Jersey, 1990)
Gabin v. Skyline Cabana Club
258 A.2d 6 (Supreme Court of New Jersey, 1969)
Gruber v. Mayor and Tp. Com. of Raritan Tp.
179 A.2d 145 (New Jersey Superior Court App Division, 1962)
Patel v. NJ MOTOR VEHICLE COM'N
982 A.2d 445 (Supreme Court of New Jersey, 2009)
In Re Centex Homes, LLC
985 A.2d 649 (New Jersey Superior Court App Division, 2009)
McCann v. Clerk of City of Jersey City
771 A.2d 1123 (Supreme Court of New Jersey, 2001)
In Re Petition of Jersey Central Power & Light Co.
428 A.2d 498 (Supreme Court of New Jersey, 1981)
Ab v. Div. of Medical Assistance and Health Services
971 A.2d 403 (New Jersey Superior Court App Division, 2009)
F.M.C. Stores Co. v. Borough of Morris Plains
495 A.2d 1313 (Supreme Court of New Jersey, 1985)
Bedford v. Riello
948 A.2d 1272 (Supreme Court of New Jersey, 2008)
In Re Petition of Nj American Water Co.
777 A.2d 46 (Supreme Court of New Jersey, 2001)
In the Matter of the Implementation of L. 2012, C. 24
127 A.3d 711 (New Jersey Superior Court App Division, 2015)
In re Stallworth
26 A.3d 1059 (Supreme Court of New Jersey, 2011)
State v. S.B.
165 A.3d 722 (Supreme Court of New Jersey, 2017)
Allstars Auto Grp., Inc. v. N.J. Motor Vehicle Comm'n
189 A.3d 333 (Supreme Court of New Jersey, 2018)

Cite This Page — Counsel Stack

Bluebook (online)
In the Matter of the New Jersey Solar Transition Pursuant to P.L. 2018, C. 17 – Application for Certification of Solar Facility, Etc., Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-matter-of-the-new-jersey-solar-transition-pursuant-to-pl-2018-c-njsuperctappdiv-2025.