In the Matter of the Petition of South Jersey Gas
149 A.3d 13
| N.J. Super. Ct. App. Div. | 2016Background
- South Jersey Gas (SJG) sought to build a ~22-mile pipeline to serve (1) a "dedicated line" to repower the B.L. England (BLE) generating station in the Pinelands and (2) a "reliability line" to enhance regional gas supply.
- The pipeline crosses Pinelands Rural Development, Village, and Forest Areas; Forest Areas allow public service infrastructure only if it "primarily serves only the needs of the Pinelands."
- SJG submitted an initial application; Commission staff found it did not satisfy the Forest Area standard. SJG revised its proposal, provided additional evidence (including an RC contract and PJM report), and received a Certificate of Filing (COF) from the Executive Director.
- Executive Director Wittenberg issued a December 14, 2015 letter concluding the revised project is consistent with the CMP minimum standards.
- The Board of Public Utilities granted SJG a N.J.S.A. 40:55D-19 waiver on December 16, 2015 (preempting MLUL/local ordinances), relying on Wittenberg’s consistency determination; environmental groups appealed.
- Appellate court: affirmed Board’s 40:55D-19 waiver in part but remanded Wittenberg’s consistency determination to the Pinelands Commission for final review and ordered the Board’s approval be conditioned on a Commission final determination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Executive Director had authority to make a final CMP consistency determination in the coordinated-permitting context | PPA/Sierra: Executive Director lacked authority; Commission must vote and issue final determination under Pinelands Act | Commission/Exec Dir: COF process and staff review can yield final consistency findings; coordinated permitting allows agency action | The Executive Director does not have final decision-making authority; the Commission retains ultimate responsibility. Remand for Commission review. |
| Whether the pending appeal of the MOA or the Commission’s prior staff finding divested the Commission/Board of jurisdiction to act on new applications | PPA: Pending appeal and prior staff finding precluded further agency action | SJG/Board: Revised application is a new matter; appeal of MOA did not divest agencies of jurisdiction | Appeal of MOA did not divest the Commission or Board of jurisdiction to consider SJG’s revised application or Board’s MLUL petition. |
| Whether the Board had authority under N.J.S.A. 40:55D-19 to waive MLUL/local ordinances for a Pinelands project | PPA/Sierra: 40:55D-19 does not override Pinelands Act/CMP requirements; Board cannot waive Pinelands reviews | Board: 40:55D-19 authorizes waiver of MLUL/local rules but approvals remain subject to CMP consistency | Board may waive MLUL/local ordinances under 40:55D-19, but such waiver is conditioned on compliance with CMP; Board order must be conditioned on a final Commission CMP determination. |
| Whether the Board’s finding of "reasonable necessity" under 40:55D-19 was supported by the record | PPA: Record insufficient to show necessity, EMP benefit, or environmental improvement | Board: Evidence (BLE repowering, PJM, reliability benefits, no superior alternative route) supports necessity and EMP objectives | Court finds substantial credible evidence supports the Board’s determination that the project is reasonably necessary; Board decision affirmed in part (merits) but conditioned on Commission CMP ruling. |
Key Cases Cited
- Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366 (1995) (appeal generally divests agency of jurisdiction over the matter appealed)
- Hennessey v. Winslow Township, 183 N.J. 593 (2005) (elements of collateral estoppel and res judicata)
- In re Carter, 191 N.J. 474 (2007) (scope of appellate review of agency action)
- In re Herrmann, 192 N.J. 19 (2007) (agency decisions upheld absent arbitrary, capricious, or unreasonable showing)
- Campbell v. N.J. Racing Comm’n, 169 N.J. 579 (2001) (deference to agency expertise)
- In re Pub. Serv. Elec. & Gas Co., 35 N.J. 358 (1961) (factors for Board to consider under utility necessity standard)
- In re Monmouth Consol. Water Co., 47 N.J. 251 (1966) (utility preference when interests balanced)
- Gandolfi v. Town of Hammonton, 367 N.J. Super. 527 (App. Div. 2004) (separate new application not barred by prior appeal)
- In re Application of John Madin, 201 N.J. Super. 105 (App. Div.) (public notice and hearing protections in land-use reviews)