In the Matter of the Implementation of L. 2012, C. 24
127 A.3d 711
| N.J. Super. Ct. App. Div. | 2015Background
- Millenium Land Development applied under N.J.S.A. 48:3-87(t) (the Solar Act) to site a solar facility on land it contracted to purchase that had been used as an apple orchard.
- Millenium claimed the site was a "brownfield" due to alleged residual lead and arsenic from agricultural pesticides, seeking SREC eligibility and related subsidies.
- The Board of Public Utilities (BPU) consulted the NJDEP; initially the BPU denied the application because DEP advised there was no contaminant discharge making the land a statutory "brownfield."
- On reconsideration the BPU based its denial on statutory classification: the property had been valued, assessed, and taxed as farmland under the Farmland Assessment Act within 10 years before the Solar Act, so subsection (s) — not (t) — governs solar projects on such land.
- The BPU concluded the site was not a former commercial/industrial site within the Solar Act's brownfield definition and therefore ineligible for designation under subsection (t); Millenium had not applied under subsection (s).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Millenium's farmland could qualify as a "brownfield" under subsection (t) | Millenium argued pesticide contamination (lead, arsenic) made the orchard a brownfield eligible under (t) | BPU/DEP argued no discharge as defined by statute and that farmland subject to Farmland Assessment Act is governed by subsection (s), not (t) | Court held land taxed/assessed as farmland within 10 years falls under subsection (s); not eligible under (t) |
| Whether BPU reasonably reinterpreted its prior denial on reconsideration | Millenium attacked original finding re: discharge and urged reversal | BPU relied on undisputed record that the land was agricultural/farmland and not former commercial/industrial site | Court deferred to BPU's reasonable statutory construction and affirmed denial |
| Whether statutory definition of "brownfield" includes agricultural land with pesticide residues | Millenium contended statutory language covered any site with suspected contaminant discharge | BPU/DEP pointed to statutory text defining brownfield as former/current commercial or industrial sites, and separate treatment for farmland in subsection (s) | Court held definition targets commercial/industrial sites; agricultural land governed by (s) |
| Whether agency action conflicted with Energy Master Plan or legislative intent | Millenium implied BPU/DEP misapplied policy objectives favoring redevelopment | BPU argued Solar Act and EMP intentionally promote solar on contaminated commercial/industrial sites while discouraging large-scale use of farmland | Court agreed BPU's construction aligned with EMP and legislative intent and declined to overturn agency decision |
Key Cases Cited
- In re N.J. Am. Water Co., 169 N.J. 181 (agency orders entitled to presumptive validity)
- In re Pub. Serv. Elec. & Gas Co.'s Rate Unbundling, 167 N.J. 377 (courts defer to agency statutory construction)
- SJC Builders, LLC v. N.J. Dep't of Envtl. Prot., 378 N.J. Super. 50 (same principle of deference)
- State v. Drury, 190 N.J. 197 (executive-branch communications inform legislative intent)
- State v. Sutton, 132 N.J. 471 (support for using executive communications to ascertain intent)