In the Matter of the Implementation of L. 2012, C. 24

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4565-13T3
IN THE MATTER OF THE
IMPLEMENTATION OF L. 2012, APPROVED FOR PUBLICATION
C. 24, N.J.S.A. 48:3-87(t) -
A PROCEEDING TO ESTABLISH A November 12, 2015
PROGRAM TO PROVIDE SRECs TO
CERTIFIED BROWNFIELDS, AREAS APPELLATE DIVISION
OF HISTORICAL FILL, AND LANDFILL
FACILITIES - MILLENIUM LAND
DEVELOPMENT, LLC (LOVE LANE)
_________________________________
Submitted September 22, 2015 – Decided November 12, 2015
Before Judges Reisner, Leone and Whipple.
On appeal from the New Jersey Board of
Public Utilities.
Justin Michael Murphy, attorney for
appellant Millenium Land Development.
John J. Hoffman, Acting Attorney General,
attorney for respondent New Jersey Board of
Public Utilities (Andrea M. Silkowitz,
Assistant Attorney General, of counsel;
Jennifer Hsia, Deputy Attorney General, on
the brief).
The opinion of the court was delivered by
REISNER, P.J.A.D.
Millenium Land Development (Millenium) appeals from a July
19, 2013 decision of the Board of Public Utilities (Board) and
from the Board's May 21, 2014 decision denying Millenium's
motion for reconsideration. In the May 21 decision, the Board
confirmed its earlier rejection of Millenium's application filed
pursuant to the Solar Act, N.J.S.A. 48:3-87(t) (subsection (t)),
but stated different grounds for the rejection. We agree with
the Board that Millenium's application could not be considered
under subsection (t), because it concerned a solar project to be
sited on property which had been valued, assessed and taxed as
farmland, and such applications are governed by N.J.S.A. 48:3-
87(s) (subsection (s)). Moreover, there was no evidence that
the land was a contaminated industrial or commercial site within
the Act's definition of a brownfield. See N.J.S.A. 48:3-51.
Accordingly, we affirm.
I
As further discussed in section II of this opinion, the
Solar Act of 2012 (the Act), L. 2012, c. 24, amended the
Electric Discount and Energy Competition Act, N.J.S.A. 48:3-49
to -98.1, in an effort to further several goals of the State's
2011 Energy Master Plan. Those policies included promoting the
installation of solar projects on contaminated industrial and
commercial sites that would likely otherwise remain
unproductive, while "discouraging large-scale solar projects on
farmland and open space." Press Release, Office of the
Governor, Governor Christie Builds on Record of Growing
2 A-4565-13T3
Renewable Energy Sources with Action to Strengthen Solar Market
(July 23, 2012), http://www.state.nj.us/governor/news/news/55201
2/approved/20120723a.html.
Acting pursuant to subsection (t) of the Act, the Board
commenced a proceeding to consider applications for solar
1
projects to be sited on brownfield locations. The Act defines
"brownfield" as "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. 48:3-51.2 Millenium, the contract
purchaser of land most recently used as an apple orchard,
submitted an application as part of the Board's proceeding,
claiming that its land was a brownfield because the application
of agricultural pesticides had left lead and arsenic in the
soil. Millenium planned to build a solar electric power
generation facility on the property, and the purpose of its
1
Subsection (t) also applies to solar projects located "on an
area of historic fill or on a properly closed sanitary landfill
facility," N.J.S.A. 48:3-87(t)(1), and the Board also invited
applications relating to those properties. However, those
provisions of subsection (t) are not addressed in this appeal,
because Millenium only claimed that its land was a brownfield.
2
This definition tracks the language used to define "brownfield
site" in the Brownfield and Contaminated Site Remediation Act,
N.J.S.A. 58:10B-1, legislation aimed at "urban and suburban
areas formerly used for commercial and industrial purposes."
N.J.S.A. 58:10B-1.2.
3 A-4565-13T3
application was to qualify the project for solar renewable
energy certificates (SRECs) and other financial subsidies
available under the Act. See N.J.S.A. 48:3-87(t)(1).
In evaluating Millenium's application, the Board consulted
with the Department of Environmental Protection (DEP), as
required by the Act, N.J.S.A. 48:3-87(t)(1). On July 19, 2013,
the Board rejected Millenium's application, based on DEP's
advice that there had been no discharge of a contaminant on
Millenium's land, and hence it was not a "brownfield" as defined
by the Act. See N.J.S.A. 48:3-51. Millenium moved for
reconsideration of the Board's decision. On reconsideration, the
two agencies agreed that regardless of whether a discharge had
occurred, subsection (t) did not apply to Millenium's project
because it was to be sited on agricultural property.
Exercising its statutory authority under N.J.S.A. 48:2-
40(e) to reopen, modify or rehear its prior decisions, the Board
reconsidered the basis for its July decision. Based on the
undisputed factual record, the Board found that Millenium's
proposed site was agricultural land, which had been used as an
orchard and had been valued, assessed and taxed as farmland
pursuant to the Farmland Assessment Act of 1964, N.J.S.A. 54:4-
23.1 to -33. See N.J.S.A. 48:3-87(s). The Board further found
that Millenium had produced no evidence that the property had
4 A-4565-13T3
ever been used for commercial or industrial purposes, within the
Act's definition of "brownfield." See N.J.S.A. 48:3-51. The
Board also noted that Millenium had obtained land use approvals
to develop the property for residential use. Although the
housing development had been stalled by the slow real estate
market, the Board reasoned that treating the property as a
brownfield would be "contrary to the intent of the Solar Act and
[Energy Master Plan] in directing solar development on land that
is underutilized or difficult to develop."
Based on its findings, the Board concluded that
Millenium's land was not a brownfield for purposes of subsection
(t), but rather was farmland subject to subsection (s) of the
Act. See N.J.S.A. 48:3-87(s). Consequently, the agency
rejected Millenium's attempt to shoehorn its farmland-based
application into a proceeding open only to projects that
qualified for consideration under subsection (t).3
For the guidance of future potential applicants, the Board
stated:
[S]olar projects proposed to be located on
land that has been actively devoted to
agricultural or horticultural use that is
valued, assessed, and taxed pursuant to the
3
The Board previously held a separate proceeding for subsection
(s) applications. Apparently, Millenium did not submit an
application for this property as part of the Board's subsection
(s) proceeding.
5 A-4565-13T3
Farmland Assessment Act of 1964 at any time
within the 10-year period prior to [July 24,
2012] will not be eligible for being
designated on a brownfield, . . . for
purposes of qualifying for SRECs under
Subsection T of the Solar Act.
The agency also directed its staff to draft regulations
reflecting its decision.
II
On this appeal, the Board's decision is "entitled to
presumptive validity." In re N.J. Am. Water Co., 169 N.J. 181,
188 (2001) (citation and internal quotation marks omitted).
Pursuant to N.J.S.A. 48:2-46, this court may
review any order of the board and . . . set
aside such order in whole or in part when it
clearly appears that there was no evidence
before the board to support the same
reasonably or that the same was without the
jurisdiction of the board.
[N.J.S.A. 48:2-46.]
We may reverse the agency's decision only if it is
"arbitrary, capricious, unreasonable or beyond the agency's
delegated powers." N.J. Am. Water, supra, 169 N.J. at 188
(citation and internal quotation marks omitted). With respect
to both the Board and the DEP, we review legal issues de novo,
but we will ordinarily defer to the agencies' reasonable
construction of statutes they are charged with implementing.
See In re Pub. Serv. Elec. & Gas Company's Rate Unbundling, 167
6 A-4565-13T3
N.J. 377, 384 (2001); SJC Builders, LLC v. N.J. Dep't of Envtl.
Prot., 378 N.J. Super. 50, 54 (App. Div. 2005).
We agree with the Board that projects sited on agricultural
property valued, assessed and taxed as farmland do not qualify
as brownfields for purposes of subsection (t). Absent
exceptions not relevant here, projects sited on farmland are
governed by subsection (s) of the Solar Act, N.J.S.A. 48:3-
87(s), which by its terms specifically addresses farmland-based
solar projects. Subsection (s) provides in pertinent part:
[A] solar electric power generation facility
that is not net metered or an on-site
generation facility and which is located on
land that has been actively devoted to
agricultural or horticultural use that is
valued, assessed, and taxed pursuant to the
"Farmland Assessment Act of 1964," P.L.1964,
c.48 (C.54:4-23.1 et seq.) at any time
within the 10-year period prior to the
effective date of P.L.2012, c.24, shall only
be considered "connected to the distribution
system" if (1) the board approves the
facility's designation pursuant to
subsection q. of this section; or (2) (a)
PJM issued a System Impact Study for the
facility on or before June 30, 2011, (b) the
facility files a notice with the board
within 60 days of the effective date of P.L.
2012, c. 24, indicating its intent to
qualify under this subsection, and (c) the
facility has been approved as "connected to
the distribution system" by the board.
[N.J.S.A. 48:3-87(s) (emphasis added).]
By its unambiguous terms, the Solar Act requires farmland-
based applications to be submitted under subsection (s), unless
7 A-4565-13T3
they are "net metered or an on-site generation facility,"
N.J.S.A. 48:3-87(s), exceptions which Millenium does not claim
apply here. Projects to which subsection (s) applies must
satisfy a more stringent set of criteria than applications which
are subject to subsection (t). Compare N.J.S.A. 48:3-87(s), and
(q), with N.J.S.A. 48:3-87(t) ("Projects certified under this
subsection shall be considered 'connected to the distribution
system[,]' shall not require such designation by the board, and
shall not be subject to board review required pursuant to
subsections q. and r. of this section."). Millenium's
application was properly rejected, because it should have been
submitted under subsection (s), and the proceeding before the
Board was limited to applications submitted under subsection
(t).
We also agree with the Board that its construction of the
Solar Act is consistent with the State's 2011 Energy Master Plan
(EMP). N.J. BD. OF PUB. UTIL., N.J. ENERGY MASTER PLAN (2011),
http://www.nj.gov/emp/docs/pdf/2011_Final_Energy_Master_Plan.pdf.
One goal of the EMP, as reflected in the Solar Act, is to
encourage the construction of solar energy facilities on
polluted former commercial and industrial land, which is not
readily usable for general commercial or residential purposes.
Id. at 107. Thus, subsection (t) makes it relatively easy to
8 A-4565-13T3
obtain financial subsidies for those projects. On the other
hand, as the Board's decision noted, in requiring farmland-sited
solar projects to satisfy a higher standard, the Legislature
also acted consistent with the EMP, which specifically
discourages the use of agricultural land for solar projects.
See ibid. Those legislative purposes were confirmed in a press
release issued by the Governor's Office on the day the Act was
signed. See Press Release, Office of the Governor, supra.
"[S]uch 'communications from the Executive Branch offer a
reliable aid in determining legislative intent.'" State v.
Drury, 190 N.J. 197, 212 (2007) (quoting State v. Sutton, 132
N.J. 471, 483 (1993)).
Accordingly, we find no basis to depart from our usual rule
of deference to an agency's reasonable construction of a statute
it is charged with implementing. See In re PSE&G Rate
Unbundling, supra, 167 N.J. at 384; see also SJC Builders,
supra, 378 N.J. Super. at 54.
Millenium's appellate arguments are without sufficient
merit to warrant discussion beyond these comments. R. 2:11-
3(e)(1)(E). Most of Millenium's brief is devoted to criticizing
the July 19, 2013 decision and the Board's and DEP's conclusion
that there was no discharge on the property. However, because
we conclude that the May 21, 2104 decision was correct, those
9 A-4565-13T3
arguments are irrelevant. Subsection (s) unambiguously
precludes a subsection (t) application for a solar project on
this property, because it is agricultural land that was valued,
assessed and taxed as farmland within the ten-year period prior
to the effective date of the Solar Act. See N.J.S.A. 48:3-
87(s). Moreover, Millenium produced no evidence that the
property was "a former or current commercial or industrial
site." See N.J.S.A. 48:3-51.
Affirmed.
10 A-4565-13T3