IN THE MATTER OF THE IMPLEMENTATION OF L. 2012, C. 24, THE SOLAR ACT OF 2012, ETC. (BOARD OF PUBLIC UTILITIES) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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Although it is posted on the internet, this opinion is binding only on the
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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
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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.
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