IN THE MATTER OF THE NEW JERSEY PINELANDS COMMISSION'S APPROVAL OF NEW JERSEY NATURAL GAS'S APPLICATION (NO. 2014-0045.001) FOR THE INSTALLATION AND OPERATION OF THE SOUTHERN RELIABILITY LINK PROJECT AS TO THE COMMISSION'S RESOLUTION PC4-17-10. (NEW JERSEY PINELANDS COMMISSION) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-4997-16
IN THE MATTER OF THE
NEW JERSEY PINELANDS
COMMISSION'S APPROVAL
OF NEW JERSEY NATURAL
GAS'S APPLICATION
(NO. 2014-0045.001) FOR THE
INSTALLATION AND
OPERATION OF THE SOUTHERN
RELIABILITY LINK PROJECT AS
TO THE COMMISSION'S
RESOLUTION PC4-17-10.
______________________________
Argued January 20, 2021 – Decided April 29, 2021
Before Judges Yannotti, Haas, and Natali.
On appeal from the New Jersey Pinelands Commission,
Resolution PC4-17-10.
Paul Leodori argued the cause for appellant Pinelands
Preservation Alliance (Paul Leodori, PC, attorneys;
Todd M. Parisi, on the brief).
Kristina L. Miles, Deputy Attorney General, argued the
cause for respondent New Jersey Pinelands
Commission (Gurbir S. Grewal, Attorney General,
attorney; Melissa Raksa, Assistant Attorney General, of
counsel; Ryan C. Atkinson, Deputy Attorney General,
on the brief).
Dennis J. Krumholz argued the cause for respondent
New Jersey Natural Gas Company (Riker, Danzig,
Scherer, Hyland, LLP, attorneys; Dennis J. Krumholz,
of counsel and on the brief; Michael S. Kettler, on the
brief).
PER CURIAM
This appeal represents another challenge to the Pinelands Commission's
(Commission) decision to grant New Jersey Natural Gas Company (NJNG)'s
proposal to construct the Southern Reliability Link (SRL), an approximate
twelve mile natural gas pipeline traversing through several municipalities and a
portion of the Pinelands area. Approximately 0.2 miles of the SRL would be
constructed within a Regional Growth Area, N.J.A.C. 7:50-5.28(a); 1.40 miles
within a Rural Development Area, N.J.A.C. 7:50-5.26(b)(10); and 10.45 miles
within a Military and Federal Installation Area, specifically the Joint Base
McGuire-Dix-Lakehurst (Joint Base), N.J.A.C. 7:50-5.13(h).
Appellant Pinelands Preservation Alliance (PPA), an environmental
interest group, challenges Resolution No. PC4-17-10, which was adopted by the
Commission in response to our remand of related appeals. The Resolution
established the procedures by which the Commission is to review its Executive
Director's determination that the SRL is consistent with the Pinelands Protection
A-4997-16
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Act, N.J.S.A. 13:18A-1 to -29 (the Act), and the Pinelands Comprehensive
Management Plan (CMP) Rules, N.J.A.C. 7:50-1.1 to -10.30. PPA argues that:
1) the adoption of PC4-17-10 constituted improper rulemaking; 2) PC4-17-10
violates due process and laws governing development in the Pinelands; and 3)
the approval of the NJNG application is invalid as a matter of law. We reject
all of these arguments and affirm.
I.
The Act charges the Commission with developing the CMP Rules, i.e., a
set of regulations that govern and guide land use, development, and natural
resource protection in the designated Pinelands Area. N.J.S.A. 13:18A-8.
Those rules establish various land use management areas, each having different
goals, objectives, development intensities, and permitted uses. N.J.A.C. 7:50 -
5.11. Applications for development within the Pinelands Area must comply
with all of the applicable minimum standards in the CMP Rules unless the
Commission waives strict compliance under its formal waiver process. N.J.S.A.
13:18A-10(c); N.J.A.C. 7:50-4.61 to -4.70.
Pursuant to CMP Rules, public service infrastructure, such as the SRL,
would be a permitted use in a Regional Growth Area and in a Rural Development
Area. Further, the minimum standards governing the intensity of development
A-4997-16
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and land use at the Joint Base are governed by relevant provisions of the New
Jersey Administrative Code.
Around the same time that NJNG filed its application, it also amended two
petitions for the SRL pending before the Board of Public Utilities (Board). In
its first petition, NJNG sought an order to install and operate the SRL in
accordance with N.J.A.C. 14:7-1.4, that is, "with a maximum operating pressure
in excess of 250 psig within 100 feet of any building intended for human
occupancy." In its second petition, NJNG sought an order authorizing and
approving the SRL's route designation, construction, and development in
accordance with: 1) N.J.S.A. 40:55D-19, which allows the Board to grant a
public utility's petition for exemption from all provisions of the New Jersey
Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, and all local
regulations and ordinances promulgated pursuant to the MLUL's authority; and
2) N.J.S.A. 48:9-25.4, which allows the Board to grant a gas company's petition
designating the "practicable" route of its proposed gas transmission pipeline.
On December 9, 2015, the Commission's staff reviewed NJNG's Pinelands
development application and issued a Certificate of Filing (COF) pursuant to
N.J.A.C. 7:50-4.34, allowing NJNG to seek local municipal MLUL approvals
for the project. On March 10, 2016, the Commission's Executive Director wrote
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to the Board, advising that: 1) the COF for NJNG's SRL project "continue[d] to
be valid" based on the Commission's staff's review of the information submitted
during the Board's public and evidentiary hearings; 2) the record for the
proposed project "aptly support[ed]" the Joint Base's need for the SRL; and 3)
NJNG demonstrated the SRL was a permitted use under N.J.A.C. 7:50-
5.29(a)(2), governing development in the Pineland's Military and Federal
Installation Areas.
On March 18, 2016, the Board issued an order finding in accordance with
N.J.S.A. 40:55D-19 that: 1) the SRL project was "reasonably necessary for the
service, convenience, or welfare of the public" to enable NJNG to continue to
provide safe, adequate, and reliable service to its customers; 2) NJNG should be
able to construct and begin operation of the pipeline as proposed; and 3) the
local land use and zoning ordinances, and any other ordinance, rule or regulation
promulgated under the auspices of the MLUL would not apply to the
construction, installation and operation of the project. Based on the COF and
the Executive Director's March 10 correspondence, the Board found that the
SRL project was "consistent with the CMP" Rules and was "a permitted land use
in a Military and Federal Installation Area because it is associated with the
Federal Installation pursuant to N.J.A.C. 7:50-5.29(a)." Meanwhile, the Board
A-4997-16
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had previously issued an order authorizing NJNG to construct and operate the
SRL pursuant to the requirements of N.J.A.C. 14:7-1.4.
We then decided In re Petition of South Jersey Gas Co., (SJG) 447 N.J.
Super. 459, 465 (App. Div. 2016). In that case, various parties, including PPA,
appealed the Board's approval of a natural gas pipeline proposed by South Jersey
Gas that would also run through the Pinelands. As in the present appeal, the
Board relied on a COF and correspondence from the Commission's Executive
Director that South Jersey Gas's project was consistent with the minimum
standards of the CMP Rules. Ibid. The SJG court held, however, that "the CMP
does not confer on the Executive Director or the Commission's staff the authority
to render final decisions on CMP compliance in these circumstances," and that
the Pinelands Protection Act did not "confer[] upon the Executive Director
authority to render a final decision for the Commission in the coordinated
permitting process." Id. at 477. The court remanded the relevant Pinelands
matter to the Commission with specific instructions on conducting further
proceedings. Id. at 478-79, 484.
In response, the Commission approved Resolution No. PC4-16-42, which
outlined the process it would follow to review its staff's CMP consistency
determination for SJG's proposed project "and any other public utility
A-4997-16
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application submitted to the Commission, which is also the subject of a petition
to the BPU for municipal preemption in accordance with N.J.S.A. 40:55D-19."
The resolution stated:
1. The Commission's review shall be based upon a
review of the Commission's Regulatory Programs file
for Pinelands Development Application, the record
developed before the [Board] and the staff's
consistency determination.
2. The Commission staff shall provide notice of the
public's opportunity to provide comments regarding the
Commission staff's consistency determination by
posting such notice on the Commission's website and
by mailing it to the applicant; the parties to any
litigation involving the proposed project's conformance
with the Pinelands CMP, if applicable, and any person,
organization or agency which has registered under
N.J.A.C. 7:50-4.3(b)(2)(i)(2). Such notice shall also
indicate that written comments may be provided until
5:00 p.m. on the date of the Commission meeting at
which the opportunity for public comment will be
provided.
3. The Commission staff, following the close of the
public comment period, shall review the record and any
public comment provided and shall prepare a
recommendation as to whether its prior consistency
determination should be affirmed.
4. Following the close of the public comment period,
the Commission based on the record as delineated in
paragraph 1 above, any public comments received and
the Commission staff's recommendation, shall either
approve or disapprove such recommendation.
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In Resolution No. PC4-16-43, the Commission authorized its counsel to
seek remands in pending appeals related to different pipeline applications that
the agency had reviewed under the same process it had used for South Jersey
Gas's project.
At the same time, two appeals were pending before us filed by PPA and
the Sierra Club respectively, challenging the Executive Director's consistency
determination for NJNG's SRL project. In January 2017, the Commission filed
motions for remands in each appeal which we granted, specifically instructing
in the Sierra Club appeal that:
On remand, the Commission shall determine whether to
render its decision based on the record before the Board
of Public Utilities or to allow the parties to present
additional evidence. The Commission shall also
determine whether to refer the matter to the Office of
Administrative Law [(OAL)] for an evidentiary hearing
before an Administrative Law Judge [(ALJ)].
We did not retain jurisdiction and subsequently dismissed both appeals.
On June 9, 2017, the Commission adopted PC4-17-10, which was entitled
"Resolution Setting Forth the Process By Which the Pinelands Commission will
Review the Determination of its Executive Director Finding that the Installation
of 12.1 miles of 30-inch Natural Gas Pipeline Proposed by New Jersey Natural
Gas (Pinelands Application No. 2014-0045.001) is Consistent with the
A-4997-16
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Standards of the Pinelands Comprehensive Management Plan." The resolution
provided:
[I]n conformance with the Appellate Division's
Remand Orders dated January 31, 2017 and February
15, 2017, the Commission will review the Commission
staff's consistency determination for the proposed
[SRL] pipeline project according to the following
process:
1. The Commission intends to rely on the record
developed before the Board of Public Utilities for
NJNG's N.J.S.A. 40:55D-19 municipal preemption
petition, as well as the Commission's Regulatory
Program's application file for Pinelands Development
Application 2014-0045.001 and the staff's consistency
determination.
2. The Commission has considered whether to refer
this matter to the [OAL] for an evidentiary hearing and
has decided not to do so, because:
a. An additional evidentiary hearing is not
necessary at this time given the limited
regulatory issues involved in this
application and the extensive record
already developed both as part of the
Commission's review of the application
and hearings conducted before the [Board].
3. The Commission staff shall provide notice of the
public's opportunity to provide both oral and written
comments regarding the Commission staff's
consistency determination. Such notice shall be posted
on the Commission's website and mailed to the
applicant, the Sierra Club and the Pinelands
Preservation Alliance, and any person, organization or
A-4997-16
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agency which has registered under N.J.A.C. 7:50-
4.3(b)(2)(i)(2). Such notice shall indicate that the oral
comment meeting will occur no sooner than 45 days
after the execution of this resolution and that written
comments may be provided until 5:00 p.m. one week
following the meeting at which the opportunity for oral
public comment on the proposed pipeline application
will be provided.
4. The former Appellants (Sierra Club and the
Pinelands Preservation Alliance) may submit any
additional information that they wish as part of the
public comment process.
5. The Commission staff shall, following the close of
the public comment period, review the record and any
public comment provided and shall prepare a
recommendation as to whether its prior consistency
determination should be affirmed. Such
recommendation report shall be posted on the
Commission's website within 10 days of the
Commission meeting at which Commission staff plans
to present it for the Commission's consideration.
6. Any interested party who possesses a particularized
property interest sufficient to require a hearing on
constitutional or statutory grounds in accordance with
N.J.S.A. 52:14B-3.2 [and] 3.3, may within 15 days of
the posting of the Commission staff's recommendation
report, submit a hearing request to the Commission.
7. At the next Commission meeting after the time for
appeal set forth in Paragraph 6 above has expired and if
no valid hearing request has been submitted, the
Commission, based on the record as delineated in
Paragraph 1 above, any public comments received and
the Commission staff's recommendation, shall either
approve or disapprove such recommendation.
A-4997-16
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Upon passage of PC4-17-10, the Commission posted notice on its website
that the public would have the opportunity to provide oral comment regarding
NJNG's Pinelands development application at a special meeting on July 26,
2017, and written comments until the close of business on August 2, 2017. It
also provided the notice to various local newspapers for publication. The
Commission held the special meeting as scheduled, and ultimately approved
NJNG's application in September 2017. This appeal followed.
II.
In PPA's first point, it contends that PC4-17-10 is invalid as a matter of
law because the Commission's adoption constituted improper rulemaking in
violation of the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to -15.
We reject this argument on both procedural and substantive grounds.
Our review of an administrative agency's final determination is limited.
In re Adoption of Amends. to N.E. Upper Raritan, Sussex Cnty. & Upper Del.
Water Quality Mgmt. Plans, 435 N.J. Super. 571, 582 (App. Div. 2014). We
"afford[] a 'strong presumption of reasonableness' to an administrative agency's
exercise of its statutorily delegated responsibilities." Lavezzi v. State, 219 N.J.
163, 171 (2014) (citing City of Newark v. Nat. Res. Council, Dep't of Env't.
Prot., 82 N.J. 530, 539 (1980)). We reverse only if we "conclude that the
A-4997-16
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decision of the administrative agency is arbitrary, capricious or unreasonable,
or is not supported by substantial credible evidence in the record as a whole."
J.D. v. N.J. Div. of Developmental Disabilities, 329 N.J. Super. 516, 521 (App.
Div. 2000).
Our review is therefore limited to three questions: 1) whether the decision
is consistent with the applicable law; 2) whether the decision is supported by
substantial evidence in the record; and 3) whether, in applying the law to the
facts, the agency reached a decision that could be viewed as reasonable. In re
Adoption of Amends., 435 N.J. Super. at 583 (citing Mazza v. Bd. of Trs., 143
N.J. 22, 25 (1995)). The burden of proof is on the party challenging the agency's
action. Lavezzi, 219 N.J. at 171.
Additionally, an administrative agency is afforded considerable discretion
in selecting the appropriate manner of fulfilling its statutory obligations, N.W.
Covenant Medical Ctr. v. Fishman, 167 N.J. 123, 137 (2001), but its "discretion
to act formally or informally is not absolute." In re N.J.A.C. 7:1B-1.1 et seq.,
431 N.J. Super. 100, 133 (App. Div. 2013). "Agencies should act through
rulemaking procedures when the action is intended to have a 'widespread,
continuing, and prospective effect,' deals with policy issues, materially changes
existing laws, or when the action will benefit from rulemaking's flexible fact-
A-4997-16
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finding procedures." In re Provision of Basic Generation Serv. for Period
Beginning June 1, 2008, 205 N.J. 339, 349-50 (2011) (quoting Metromedia, Inc.
v. Dir. Div. of Taxation, 97 N.J. 313, 329 (1984)). Formal rulemaking "allows
the agency to further the policy goals of legislation by developing coherent and
rational codes of conduct so those concerned may know in advance all the rules
of the game, so to speak, and may act with reasonable assurance." Gen.
Assembly of N.J. v. Byrne, 90 N.J. 376, 386 (1982) (quoting Boller Beverages,
Inc. v. Davis, 38 N.J. 138, 152 (1962)).
The APA "provides the necessary starting point for any analysis of an
agency's chosen pathway for action." Provision of Basic Generation Serv., 205
N.J. at 347-48. The APA defines an "administrative rule" as an "agency
statement of general applicability and continuing effect that implements or
interprets law or policy, or describes the organization, procedure or practice
requirements of any agency." N.J.S.A. 52:14B-2(e). That definition does not
include: "(1) statements concerning the internal management or discipline of
any agency; (2) intra-agency and inter-agency statements; and (3) agency
decisions and findings in contested cases." N.J.S.A. 52:14B-2.
Where the agency action satisfies the definition, "its validity requires
compliance with the specific procedures of the APA that control the
A-4997-16
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promulgation of rules." Airwork Serv. Div. v. Dir. Div. of Taxation, 97 N.J.
290, 300 (1984); see also N.J.S.A. 52:14B-4(d) (stating a rule must be adopted
in "substantial compliance" with the APA). These procedures require the agency
to, among other things, publish notice of the proposed rule and inform
"interested persons" and "all persons who have made timely requests of the
agency for advance notice of its rule-making proceedings," N.J.S.A. 52:14B-
4(a)(1); "[a]fford all interested persons a reasonable opportunity to submit data,
views, comments, or arguments, orally or in writing," N.J.S.A. 52:14B-4(a)(3);
and "[p]repare for public distribution . . . a report . . . providing the agency 's
response to the data, views, comments, and arguments contained in the
submissions," N.J.S.A. 52:14B-4(a)(4).
Whether an agency must undertake formal rulemaking for a contemplated
action depends on the extent to which the action:
(1) is intended to have wide coverage encompassing a
large segment of the regulated or general public, rather
than an individual or a narrow select group; (2) is
intended to be applied generally and uniformly to all
similarly situated persons; (3) is designed to operate
only in future cases, that is, prospectively; (4)
prescribes a legal standard or directive that is not
otherwise expressly provided by or clearly and
obviously inferable from the enabling statutory
authorization; (5) reflects an administrative policy that
(i) was not previously expressed in any official and
explicit agency determination, adjudication or rule, or
A-4997-16
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(ii) constitutes a material and significant change from a
clear, past agency position on the identical subject
matter; and (6) reflects a decision on administrative
regulatory policy in the nature of the interpretation of
law or general policy.
[Metromedia, 97 N.J. at 331-32.]
A court's determination whether rulemaking is required under that
standard entails a qualitative evaluation, rather than a quantitative one. State v.
Garthe, 145 N.J. 1, 7 (1996). Not all of the Metromedia factors need be satisfied.
In re Request for Solid Waste Util. Customer Lists, 106 N.J. 508, 518 (1987).
These factors, "either singly or in combination," determine whether the agency's
action amounts to the promulgation of an administrative rule, so long as they
preponderate in favor of the formal rulemaking process. Metromedia, 97 N.J. at
331-32.
Procedurally, the Commission's actions were a direct result of our
remand instructions and any contention that Resolution No. PC4-17-10
constituted improper rulemaking is therefore misplaced. Indeed, we remanded
the issue of the Commission's inadequate application review process with
specific instructions, which did not include a requirement that the Commission
undertake formal rulemaking. We directed the Commission to "determine
whether to render its decision based on the record before the Board of Public
A-4997-16
15
Utilities or to allow the parties to present additional evidence," and to
"determine whether to refer the matter to the OAL for an evidentiary hearing
before an Administrative Law Judge." We further instructed the Commission to
determine whether "to allow the parties [PPA and Sierra Club] to present
additional evidence." On appeal, PPA does not argue that the court erred in its
instructions, or that the Commission failed to properly implement them.
When an appellate court directs an administrative agency to take action,
"the appellate judgment becomes the law of the case and the agency is under a
peremptory duty not to depart from it." Lowenstein v. Newark Bd. of Educ., 35
N.J. 94, 116-17 (1961). Whether or not in agreement with the court, agencies
have "a duty to obey the mandate of [the Appellate Division] 'precisely as it is
written.'" In re Denial of Reg'l Contribution Agreement Between Galloway
Twp. & City of Bridgeton, 418 N.J. Super. 94, 100-01 (App. Div. 2011) (quoting
Flanigan v. McFeely, 20 N.J. 414, 420 (1956)). An appellate court's instructions
"must be enforced as written, and relief from its direction 'can be had only in the
appellate court whose judgment it is.'" Tomaino v. Burman, 364 N.J. Super.
224, 233 (App. Div. 2003) (quoting In re Plainfield-Union Water Co., 14 N.J.
296, 303 (1954)). "[T]he very essence of the appellate function is to direct
conforming judicial action." Ibid.A-4997-16
16
In PC4-17-10, the Commission followed this court's instructions. The
Commission elected to review NJNG's application by relying on the record
developed before the Board and to not send the matter to the OAL for a hearing
before an ALJ. Also, before rendering its final decision on NJNG's application,
the Commission afforded the public notice and the opportunity to be heard on
the SRL project's consistency with the CMP and allowed PPA to present
additional evidence on the application. Furthermore, because PC4-17-10 was
adopted in response to our remand instructions, the Commission was not
required to comply with the notice and comment requirements of the APA .
PPA's arguments are also substantively without merit as the Commission's
actions satisfy none of the Metromedia factors. Indeed, applying the first
through third Metromedia factors, it is clear that the Commission did not intend
PC4-17-10: 1) to have wide coverage encompassing a large segment of the
regulated or general public, since the resolution applied only to NJNG's SRL
pipeline; 2) to be applied generally and uniformly to all similarly situate d
persons, since it is limited in scope and not a standard of unvarying application;
or 3) to operate in all future pipeline development applications.
It is also clear that after considering the fourth through sixth Metromedia
factors, PC4-17-10 does not prescribe a new legal standard or administrative
A-4997-16
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policy or a new interpretation of administrative regulatory policy. The
Commission chose a process for this particular application ensuring that it would
consider a full record and provide the public with notice and the opportunity to
comment, which was consistent with its existing procedures under the CMP
Rules for reviewing other applications that did not involve prior municipal
approval, N.J.S.A. 13:18A-15, and consistent with this court's remand
instructions. Since their inception, the CMP Rules have required that the
Commission "retains 'ultimate responsibility' under the CMP to review the
proposed project and render a final decision on CMP compliance." SJG, 447
N.J. Super. at 478 (citing N.J.A.C. 7:50-1.11). Thus, none of the Metromedia
factors are satisfied or weigh in the favor of a formal rulemaking requirement.
Therefore, the Commission did not have to comply with the APA's notice and
comment procedures. 1
III.
1
We do not address PPA's argument that PC4-17-10 is invalid because it is "one
in a series" of other invalid resolutions designed to allow the Commission to
ignore rulemaking requirements for coordinated permitting among different
agencies as none of these other resolutions are before the court, since PPA
appealed only from the Commission's June 9, 2017, adoption of PC4-17-10. See
Campagna ex rel. v. Am. Cyanamid Co., 337 N.J. Super. 530, 550 (App. Div.
2001) (issue not properly before court for review where order not included in
notice of appeal or amended notice); Pressler & Verniero, Current N.J. Court
Rules, cmt. 5.1 on R. 2:5-1 (2021).
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In its second argument, PPA contends that the review process adopted by
the Commission in PC4-17-10 violates due process and the laws governing the
Pinelands Area, because the Commission reached its conclusion without
conducting an adjudicatory hearing. PPA argues that the Commission's
truncated review process where it was permitted merely to submit written and
oral comments at a Commission meeting was not an adequate substitute for the
opportunity to participate in an adjudicatory hearing involving the presentation
of evidence, cross-examination and argument. PPA also maintains that the
Commission's relying on the record developed during the Board's evidentiary
hearing is insufficient for a proper review of NJNG's Pinelands development
application under the CMP Rules. We are not persuaded by any of these
arguments.
In our remand order, we charged the Commission with the sole discretion
to determine whether an adjudicatory hearing was warranted or whether to rely
on the testimony, cross-examination, and evidence offered before the Board.
This was the same direction as in our remand instructions in SJG, 447 N.J.
Super. at 479. As noted, the agency was required to comply with our
instructions. Tomaino, 364 N.J. Super. at 233. Notably, PPA does not challenge
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19
the remand instructions or argue that the review process approved by the
Commission contravened our mandate.
PPA also mistakenly assumes an adjudicatory hearing was required here
and the Commission's decision to consider its written materials and arguments
violated its due process rights. "Due process does not always require an
administrative agency to hold an evidentiary hearing before it goes about the
business it was created to conduct." In re Solid Waste Util. Customer Lists, 106
N.J. at 520. "Sometimes nothing more is required than notice and the
opportunity to present reasons, either orally or in writing, why the proposed
action should not be taken." Id. at 521. How structured the procedure must be
depends upon a balancing of three factors: 1) identification and specification of
the private interest that will be affected by the official action; 2) assessment of
the risk that there will be an erroneous deprivation of interest through the
procedures used and the probable value, if any, of additional or substi tute
procedural safeguards; and 3) evaluation of the governmental interest involved,
including the added fiscal and administrative burdens that additional or
substitute procedures would require. Mathews v. Eldridge, 424 U.S. 319, 335
(1976).
A-4997-16
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Moreover, it is well settled that a third-party objector to a development
approval, like PPA here, does not have an automatic right to an adversarial
hearing before the OAL. In re Auth. for Freshwater Wetlands Statewide Gen.
Permit 6, 433 N.J. Super. 385, 407-08 (App. Div. 2013). Under the APA, "all
interested persons are afforded reasonable opportunity to submit data, views or
arguments, orally or in writing, during any proceedings involving a permit
decision." N.J.S.A. 52:14B-3.1(a). However, the APA expressly prohibits a
state agency from promulgating rules or regulations entitling a third party to an
administrative hearing under the APA unless "specifically authorized to do so
by federal law or State statute," or unless a person "has [a] particularized interest
sufficient to require a hearing on constitutional or statutory grounds." N.J.S.A.
52:14B-3.1(b)-(d), -3.2, -3.3. PPA does not meet this criteria.
We reject PPA's arguments that the Pinelands Protection Act and our
decision In re Application of Madin, 201 N.J. Super. 105 (App. Div. 1985),
require the Commission to hold an adjudicatory hearing during its review
process. The Act mandates only a public hearing when the Commission is
reviewing a final municipal or county development approval. N.J.S.A. 13:18A-
15. Here, there was no municipal or county approval for the Commission to
review. Additionally, N.J.S.A. 13:18A-8(h) does not require the Commission
A-4997-16
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to hold evidentiary hearings during its review of every development application,
but only requires the CMP Rules "to provide for the maximum feasible local
government and public participation in the management of the pinelands area. "
Further, In re Madin is factually distinguishable and does not support
PPA's claim to an adjudicatory hearing. In that case, the court concluded that
the Pinelands Protection Act "itself clearly evinces a legislative intent that
hearings be conducted when the Commission reviews a development
application." In re Madin, 201 N.J. Super. at 134. The issue there, however,
was whether municipalities whose land use ordinances had not been certified by
the Commission were entitled to a hearing before the Commission's approval of
applications for development within the municipalities' boundaries. Id. at 119.
Those circumstances are not present in this matter.
In addition, after In re Madin was decided, the APA was amended in 1993
to preclude agencies from granting adjudicatory or evidentiary hearings to third
parties seeking to challenge an administrative agency's permitting decisions
unless they held a statutory right to such a hearing or a particularized property
interest of constitutional significance that would be directly affected by the
development. N.J.S.A. 52:14B-3.1, -3.2, -3.3; see In re Freshwater Wetlands
A-4997-16
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Statewide Gen. Permits, 185 N.J. 452, 463-64 (2006) (citing N.J.S.A. 52:14B-
2, -3.1, -3.2).
We also reject any claim that the Commission erred by relying on facts
developed at the Board's evidentiary hearing for two independent reasons. First,
as noted, PPA appealed only from the Commission's June 9, 2017 adoption of
PC4-17-10, not the Commission's approval of the SRL and the issue is thus not
properly before us on this appeal. See Campagna ex rel. v. Am. Cyanamid Co.,
337 N.J. Super. at 550 (App. Div. 2001). Second, we addressed, and rejected,
that argument in PPA's challenge to the substantive review of the Commission's
approval of the SRL project in A-1004-17T1.
IV.
In its final point, PPA contends that the Commission's approval of NJNG's
application was void as a matter of law. As best we can discern, PPA argues
that the application was a legal nullity because it was approved by the
Commission's employing an unlawful review process in PC4-17-10 that did not
comply with the APA's rulemaking requirements and violated PPA's due process
rights. We reject those arguments for the reasons previously stated.
A-4997-16
23
To the extent we have not addressed any of the PPA's arguments, it is
because we conclude they do not warrant discussion in a written opinion. See
R. 2:11–3(e)(1)(E).
Affirmed.
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