NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3565-19
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL 400, JAMES BERRY, and JOSEPH VOLPE, APPROVED FOR PUBLICATION
Plaintiffs-Appellants, June 15, 2021
v. APPELLATE DIVISION
BOROUGH OF TINTON FALLS, NEW JERSEY DEPARTMENT OF COMMUNITY AFFAIRS, CARY COSTA, in his official capacity as Construction Official and Building Sub-Code Official of the Borough of Tinton Falls, and SCOTT BORSOS, in his official capacity as Construction Official of the Department of Community Affairs,
Defendants-Respondents.
CS ENERGY, LLC, and CS ENERGY DEVCO, LLC,
Intervenors-Respondents.
Argued April 22, 2021 – Decided June 15, 2021
Before Judges Sabatino, Currier and Gooden Brown. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3966-19.
Matthew B. Madsen argued the cause for appellants (O'Brien, Belland & Bushinsky, LLC, attorneys; Mark E. Belland and Matthew B. Madsen, on the briefs).
Scott W. Kenneally argued the cause for respondents Borough of Tinton Falls and Cary Costa (Starkey, Kelly, Kenneally, Cunningham & Turnbach, attorneys; Scott W. Kenneally, on the briefs).
Patrick D. Tobia argued the cause for respondents New Jersey Department of Community Affairs and Scott Borsos (Gordon Rees Scully Mansukhani, LLP, attorneys; Patrick D. Tobia, of counsel and on the briefs; Izik L. Gutkin, on the brief).
Laura M. Kessler argued the cause for intervenors- respondents (Sills Cummis & Gross, PC, attorneys; Joshua N. Howley and Laura M. Kessler, of counsel and on the briefs).
The opinion of the court was delivered by
CURRIER, J.A.D.
This case arises out of the development of a solar energy power plant on
land leased by private parties from the United States Department of the Navy
at Naval Weapons Station Earle (NWS Earle). Because plaintiffs 1 did not sue
the Navy or the United States and the NWS Earle is located in a federal
1 Joseph Volpe is an IBEW Local 400 member who worked on the solar power plant. James Berry is a resident and taxpayer of the Borough of Tinton Falls .
A-3565-19 2 enclave, the trial court granted defendants' motions to dismiss under Rule 4:6-
2(a) and (e) for lack of jurisdiction and for failure to state a claim and for
failure to join an indispensable party, Rule 4:6-2(f). We affirm.
NWS Earle is comprised of over 10,000 acres of land in Monmouth
County. It has been under exclusive federal jurisdiction since 1947.
Several years ago, the Navy issued a request for proposal for the lease of
land on NWS Earle for the generation and distribution of renewable energy to
enhance the federal government's energy security position. This portion of
land is located in Tinton Falls.
Conti Enterprises submitted a bid and was awarded a thirty-seven-year
lease by the Navy in 2017 to complete construction and manage the solar field.
The lease was signed by Ben Moreell Solar Farm, LLC, (a subsidiary of Conti)
and a representative of the United States government.
Moreell subsequently executed a contract with CS Energy, LLC, to
develop, design, and build the solar energy project. According to the
certification of Eric Millard, the Chief Commercial Officer of CS Energy, the
Navy was "heavily involved" in the construction project and the "Navy's
oversight and approval was required for each stage of the Project, . . .
including . . . holding weekly meetings with CS Energy regarding the Project."
Millard stated the Navy approved the project schedule, health and safety plans,
A-3565-19 3 site plans, and environmental protection plans. In addition, the Navy received
final site plan approvals from the Naval Ordnance Safety and Security Activity
and Department of Defense Explosive Safety Board.
CS Energy contracted with Huen Electric New Jersey, Inc., (Huen
Electric) to perform the electrical installation of the solar panels, which took
place over several weeks and was completed on December 20, 2019. The
majority of the electricians working on the project were members of plaintiff
International Brotherhood of Electrical Workers Local 400. Millard stated the
work entailed "connecting more than 70,000 solar panels to each other and to
power lines leading to the electrical grid through several other pieces of
standard electrical equipment, as well as commissioning the entire system to
ensure the solar project functions properly and safely."
According to Millard, Huen Electric "performed daily safety checks to
ensure the system was operating safely and correctly and to ensure that all
electrical wiring, terminations, and connections were installed properly." The
project has been connected to the grid and fully operational since December
2019.
Steven Lawrence, Director of Engineering for CS Energy, supervised the
engineering and commission of the solar project. He advised that after Huen
Electric completed its work and safety inspections, CS Energy hired several
A-3565-19 4 independent companies to perform testing and commissioning on the various
components of the electrical system.
One company, QE Solar, LLC, performed a "highly specialized test
specific to the solar industry." The test did not detect any improper
installation of the solar panel wiring.
Lastly, before the solar panel system could be connected to the power
grid, it underwent extensive testing by Jersey Central Power & Light (JCP&L).
The project passed all of the safety tests and JCP&L approved it for full
operation in December 2019. Lawrence stated CS Energy did not receive any
reports from plaintiff's workers regarding any safety issues with the electrical
installation of the solar panels.
Of course, before the electrical work began on the solar panels, the
panels had to be put together. The mechanical installation phase entailed
inserting and bolting the panels onto metal frames. This work was performed
by members of New Jersey Laborers Union, Local 472. In his certification,
Millard advised that CS Energy did not hire Huen Electric or any other IBEW
contractor to perform the mechanical installation "because their bids for [that
phase] of the Project were non-competitive." IBEW was informed of this
decision in early September 2019.
A-3565-19 5 On September 20, 2019, IBEW wrote a letter to Cary Costa, the
Construction Official of the Borough of Tinton Falls. In that letter, IBEW
advised Costa that CS Energy intended to perform work on the solar project
without obtaining the required permits. The letter stated the failure to acquire
a permit "raises serious concerns of safety regarding the project, its workers
and the general public." IBEW contended the municipality was responsible for
the issuance of permits and conducting inspections.
CS Energy responded to IBEW's letter, informing Costa that CS Energy
was not required to obtain a permit for the project because it was located on
NWS Earle. The letter advised that under the United States Constitution and
the federal enclave doctrine, state laws did not apply to federal territory. The
federal government had the exclusive right to regulate its properties.
CS Energy further advised that Huen Electric possessed a business
permit and electrical license and was "performing the construction work in
accordance with applicable codes and licensing requirements." Because the
Navy was exercising supervisory authority over the electrical work, it was
responsible for approving the installation of equipment and infrastructure.
IBEW continued to assert the municipality was responsible for
permitting. In response, a representative of the Department of Community
Affairs (DCA) wrote an email to both Costa and IBEW, informing them that
A-3565-19 6 the solar panel project was subject to federal jurisdiction and not within the
jurisdiction of the Borough of Tinton Falls or the municipality's Uniform
Construction Code.
On November 8, 2019, IBEW filed a Verified Complaint in Lieu of
Prerogative Writ and Order to Show Cause (OTSC) in the Law Division,
naming the DCA, the Borough of Tinton Falls, as well as Cary Costa and Scott
Borsos2, both in their official capacities, as defendants. Plaintiff did not name
the United States, Moreell, or CS Energy as defendants.
The complaint alleged that Tinton Falls had not exercised jurisdiction
over the project and had "disavowed any responsibility for any work on the
Project and/or concerning the Project's compliance with" relevant laws. The
municipality's failure to enforce the requirement for "an electrical permit from
the New Jersey Board of Electrical Contractors" allegedly "created a serious
health and safety concern for [IBEW members] performing work on the
Project, . . . as well as local residents and taxpayers." And, the complaint
alleged that the "failure to issue a stop construction order until the
2 Borsos was the Construction Official of the DCA.
A-3565-19 7 requirements of the New Jersey Electrical Contractors Licensing Act of 1962 [3]
are met will cause serious and irreparable harm to [IBEW members] . . . . "
Plaintiff sought a declaratory judgment that the specified work was
being performed in violation of N.J.S.A. 45:5A-1, a preliminary injunction
including a stop construction order, enforcement of all local building and
permitting codes, and an award of attorney's fees plus costs and interest.
The DCA and Borough moved to dismiss the complaint. After learning
of the lawsuit from a third party, CS Energy moved to intervene in the action.
CS Energy also moved to dismiss the complaint and opposed the OTSC. At
the time of oral argument on the motions and OTSC, the solar facility had been
operational for more than a month. Plaintiffs' workers' last day on the site was
January 3, 2020.
Defendants and CS Energy argued the court was required to dismiss the
OTSC and verified complaint because plaintiff had not joined the federal
government (or the Navy) as necessary parties, the trial court lacked
jurisdiction over the matter because the work was performed in a federal
enclave, and the matter was moot because the construction was complete,
rendering the request for a stop work order meaningless.
3 N.J.S.A. 45:5A-1 to -55.
A-3565-19 8 Following the arguments on January 24, 2020, Judge Joseph P. Quinn
granted CS Energy's motion to intervene. In an oral decision, the judge denied
the OTSC and granted defendants' motions to dismiss the complaint. Judge
Quinn found the action against the DCA belonged before this court as it was
an appeal from a final state agency decision. He also concluded that the
federal enclave doctrine deprived the state court of jurisdiction over plaint iffs'
causes of action.
In a comprehensive written decision and three orders issued the same
day, Judge Quinn found the project was "taking place on a United States naval
facility which is used to store munitions and weapons" and that "[a]llowing . . .
the State to express local laws onto such an enclave would most certainly
interfere with the jurisdiction asserted by the Federal Government." Without
an affirmative authorization expressed by the federal government renouncing
exclusive jurisdiction, Judge Quinn advised he would not "strip away" the
federal government's jurisdiction.
Judge Quinn further reasoned that the federal government was a
necessary party to the action because "a ruling here will clearly affect the
jurisdiction of the Federal Government . . . ." He concluded "[t]his is reason
enough to dismiss the [p]laintiffs' [c]omplaint" and grant defendants' cross -
motions.
A-3565-19 9 Relying on Rule 2:2-3(a)(2), Judge Quinn also determined that plaintiffs'
claims regarding the DCA's "authority and responsibility to enforce permitting
obligations and . . . applying the UCC" permit requirements were misplaced
and should have been brought in an appeal before this court. He found that
"transfer of this case [to federal court] would not be appropriate due to th e
Federal Government not being named [as] a party . . . ."
In considering plaintiffs' application for injunctive relief, the judge
analyzed the claims under the Crowe4 factors and found plaintiffs could not
satisfy the required elements. Specifically, Judge Quinn noted that without the
federal government as a party, there was scant likelihood of success on the
merits and, since the project was completed and plaintiffs' workers were not
scheduled to return to the site, there was no irreparable harm.
Plaintiffs moved for reconsideration and sought to have the matter
reinstated and leave granted to amend the complaint to add the necessary
parties. The applications were denied.
On appeal, plaintiffs contend the trial court erred in: (1) dismissing their
complaint with prejudice; (2) failing to compel the DCA and/or the Borough to
issue a stop work order until the permitting requirements were satisfied; (3)
finding the federal enclave doctrine prohibited enforcement of state laws,
4 Crowe v. De Gioia, 90 N.J. 126, 133 (1982).
A-3565-19 10 regulations and ordinances; (4) finding Moreell and the federal government
were indispensable parties to the action; (5) granting CS Energy's motion to
intervene; (6) finding it had no jurisdiction to consider the allegations against
the DCA; and (7) denying plaintiffs' motion for reconsideration and denying
leave to amend the verified complaint.
We "'apply a plenary standard of review from a trial court's decision to
grant a motion to dismiss.'" Gonzalez v. State Apportionment Comm'n, 428
N.J. Super. 333, 349 (App. Div. 2012) (quoting Rezem Family Assocs., LP v.
Borough of Millstone, 423 N.J. Super. 103, 114 (App. Div. 2011)). We "owe[]
no deference to the trial court's conclusions." Ibid.
On appeal, CS Energy argues that plaintiffs' claims are moot and "any
remand would be futile because the construction of the project, including the
[solar] panel installation was completed [in December 2019]", and any threat
of injury to IBEW workers no longer exists because they have not been on-site
[since that time]. Although this mootness argument was made to the trial
court, Judge Quinn did not rule on this issue but instead considered the case on
its merits. Because CS Energy did not file a cross-appeal, plaintiffs contend
this court cannot now consider the issue of mootness.
As a general matter, "our courts normally will not entertain cases when a
controversy no longer exists and the disputed issues have become moot." De
A-3565-19 11 Vesa v. Dorsey, 134 N.J. 420, 428 (1993) (citing Oxfeld v. N.J. State Bd. of
Educ., 68 N.J. 301, 303-04 (1975)). An issue is moot when the "decision
sought in a matter, when rendered, can have no practical effect on the existing
controversy." Redd v. Bowman, 223 N.J. 87, 104 (2015) (citations omitted).
In limited instances, a court will address the merits of appeals that have
become moot, electing to do so "where the underlying issue is one of
substantial importance, likely to reoccur but capable of evading review."
Zirger v. Gen. Accident Ins. Co., 144 N.J. 327, 330 (1996) (citations omitted).
We will typically do so when the matter evading review poses a significant
public question or affects a significant public interest. See, e.g., Guttenberg
Sav. & Loan Ass'n v. Rivera, 85 N.J. 617, 622-23 (1981).
Plaintiffs finished their work on the electrical installation before they
presented their OTSC. They were not expected to and have not returned to the
site for any further work on the solar energy project. As a result, we cannot
altogether dismiss the contention that plaintiffs' claims are moot. However,
like the trial court, we recognize the determinative issue here is whether the
state court had jurisdiction over the causes of action raised in plaintiffs'
verified complaint without the federal government being named as a party.
Therefore, we will address plaintiffs' claims in turn.
A-3565-19 12 Plaintiffs argue on appeal that the United States is not a necessary party
because its interests will not be implicated until the DCA and Borough se ek to
enforce the relevant permitting statutes against it. They further assert that
even if the federal government is deemed a necessary party, plaintiffs can
amend their complaint to add the required parties and then seek to remove the
state court action to the United States District Court. Or, plaintiffs contend for
the first time in a supplemental brief, they can pursue concurrent separate
actions in state and federal court. Therefore, plaintiffs seek a reversal of the
dismissal order and leave to amend their complaint in the trial court to add the
necessary parties.
As stated, Judge Quinn dismissed the complaint for plaintiffs' failure to
join indispensable parties – the federal government and Ben Moreell. His
determination was governed by Rule 4:6-2(f), which instructs a court
analyzing the dismissal of a complaint to consider whether there was a "failure
to join a party without whom the action cannot proceed, as provided by Rule
4:28-1."
Rule 4:28-1(a) provides:
(a) Persons to be Joined if Feasible. A person who is subject to service of process shall be joined as a party to the action if (1) in the person's absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest in the subject of the action and is so situated that the disposition of the
A-3565-19 13 action in the person's absence may either (i) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or other inconsistent obligations by reason of the claimed interest. If the person has not been so joined, the court shall order that the person be made a party. . . .
[(Emphasis added).]
Whether a party is indispensable is fact sensitive. "As a general
proposition, . . . a party is not truly indispensable unless he has an interest
inevitably involved in the subject matter before the court and a judgment
cannot justly be made between the litigants without either adjudging or
necessarily affecting the absentee's interests." Toll Bros., Inc. v. Twp. of W.
Windsor, 334 N.J. Super. 77, 90-91 (App. Div. 2000) (quoting Allen B.
DuMont Labs., Inc. v. Marcalus Mfg. Co., 30 N.J. 290, 298 (1959)); see also
Mack-Cali Realty Corp. v. State, 466 N.J. Super. 402, 447-48 (App. Div.
2021) (quoting Toll Bros.).
Plaintiffs' claims against the current defendants arise out of the terms of
a contract between the Navy and Ben Moreell – two nonparties. Clearly, the
Navy and Moreell have an interest "in the subject matter before the court."
Furthermore, any interpretation by a court involving the contract will have
implications for the Navy and Moreell. If the federal government and Moreell
are not added as parties to this matter, they will be deprived of the opportunity
A-3565-19 14 to assert their interpretation of the terms and conditions of their own contract.
As Judge Quinn stated: "[n]either the Lessee nor the Federal Government are
parties to this suit, and both have contractual rights which will be affected if
this [c]ourt was to fashion a remedy . . . ."
Plaintiffs contend that if this court determines that the federal
government and Moreell are necessary parties, as we have, then we should
remand for the trial court to grant leave to amend the complaint and join those
parties. We decline to do so because a remand and amendment would be
fruitless.
NWS Earle is located in a federal enclave. As our Supreme Court has
explained, a federal enclave is land that the "Constitution authorizes Con gress
to acquire . . . from States for needful purposes (Art. 1, Sec. 8, par. 17) [5] and
our Legislature has explicitly ceded exclusive jurisdiction to the United States
of all lands so acquired." Petition of Salem Transp. Co. of N.J., 55 N.J. 559,
562 (1970); see Paul v. United States, 371 U.S. 245, 267-69 (1963).
5 The Congress shall have Power . . . To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock- Yards, and other needful Buildings . . . .
A-3565-19 15 As stated earlier, NWS Earle was ceded in 1947 when the Secretary of
the Navy informed the Governor of New Jersey of his acceptance of
jurisdiction over the naval base. As a result, any activities on NWS Earle,
located on federal land, are free from regulation by any state or locality.
Hancock v. Train, 426 U.S. 167, 178 (1976). In essence, the federal enclave
doctrine is a defense to certain state law claims. 6
It is well established that the federal district courts have exclusive
jurisdiction over the federal government and the Navy as a military branch.
See Minnesota v. United States, 305 U.S. 382, 388 (1939) (stating that
Congress has the exclusive authority to determine whether the United States
can be sued and "in what courts the suit may be brought"). Without the
express consent of the United States Congress, the federal government is
immune from suit in a state court. Block v. North Dakota, 461 U.S. 273, 280
(1983). Plaintiffs do not assert they have such a waiver.
Therefore, the United States cannot be joined as a party in the state court
suit. Because the trial court lacked jurisdiction over the federal government,
Judge Quinn could not address or interpret the applicable contract. Plaintiffs
6 Although there are several exceptions to the exclusivity of the federal enclave doctrine, plaintiffs do not contend the exceptions apply to these circumstances and therefore we need not address them.
A-3565-19 16 also concede that any determination by the trial court would not be binding on
the federal government or the Navy.
Because our state courts cannot exercise jurisdiction over the federal
government, it follows that the United States cannot be added to the state court
suit. Therefore, any amendment to the complaint to join the federal
government would be futile. See Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490,
501 (2006) (holding that motions for leave to amend should not be granted
where the amended claim would nonetheless fail and therefore be a "useless
endeavor"). Plaintiffs' recourse, should they choose to pursue their claims, is
to file an action against the federal government in federal district court.
We briefly address and reject plaintiffs' contention that the trial court
erred in granting leave to CS Energy to intervene in this action. Rule 4:33-1
provides for intervention as of right if the disposition of the action would
impair or impede the intervenor's ability to protect its interest, and the
intervenor's interest is not adequately represented by the already existing
parties. Here, plaintiffs sought a stop work order that directly impacted the
solar energy project and CS Energy's interest as the developer and construction
manager of the project. Plaintiffs have demonstrated no abuse of discretion in
the court's grant of leave to intervene.
A-3565-19 17 In sum, we discern no reason to disturb Judge Quinn's decision to dismiss
the complaint. The federal government and Moreell were necessary parties,
without whom plaintiffs' claims could not be considered and adjudicated.
However, even if the United States were added as a defendant, the federal
enclave doctrine prevented the trial court from exercising jurisdiction over the
federal government. Under federal enclave jurisdiction, any state law claims
are barred. Unless a federal court determines otherwise, there are no state
claims left to adjudicate in our trial courts. Therefore, the complaint was
properly dismissed under Rule 4:6-2 (a), (e), and (f).
In light of our decision, we need not address the remainder of plaintiffs'
arguments. R. 2:11-3(e)(1)(E).
Affirmed.
A-3565-19 18