On appeal from a final administrative decision of The New Jersey Board of Public Utilities, Docket Nos., TM05100861, TM05110957 and TM06010015.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez, C. S. Fisher and C. L. Miniman.
Appellant, New Jersey Division of Rate Counsel (Rate Counsel), challenges the approval by the Board of Public Utility (BPU) of the sale of three separate properties owned by Verizon New Jersey, Inc. (Verizon) to private parties.*fn1 We affirm.
The facts are not disputed. The first property, located in Jersey City, consists of a six-story building on approximately 1.20 acres of land. This property was purchased prior to 1981 for $709,500. Verizon spent $7,056,846 in improvements. In 2004, Welsh Chester Galiney Matone, Inc. (WCGM), a real estate appraiser, appraised its market value at $8.9 million. In 2005, this appraisal was revised to fall between $6.25 million and $6.5 million. The property was advertised for sale in May 2005. Three bids were received and rejected for being less than the appraised fair market value. In July 2005, a bid for $6,405,000 made by Kennedy Business Center, L.L.C. was accepted by Verizon. The second property is located in East Orange and consists of a three-story building on approximately 5.40 acres of land. This property was acquired in two transactions: one in May 1957 and the other in October 1970. The total cost was $3,473,400. Verizon spent $9,117,590 in improvements. WCGM appraised the East Orange property in 2004 and set the market value at $2,425,000. The property was advertised for sale in July 2005. The highest bid in the amount of $2.8 million was made by Triad International, Inc. and accepted by Verizon.
The third property consists of a one-story building on approximately 8.153 acres of land located in Freehold. This property was acquired in 1992 for $3.25 million. Verizon spent $5,530,811 in improvements. WCGM appraised the property in 2004 at $4.25 million. In 2005, WCGM reappraised the property and set the fair market value at $6.15 million. The property was advertised for sale in August 2005. The highest bidder, 75 Bannard St. Realty Corp., offered $6,125,000, which was accepted by Verizon. There is no relationship between Verizon and any of the purchasers.
Verizon filed a petition with the BPU seeking approval for all three sales. Rate Counsel filed comments with the BPU recommending that the Jersey City, East Orange and Freehold properties be subject to independent and more recent appraisals. Verizon filed reply comments, opposing Rate Counsel's arguments. On March 22, 2006, the BPU approved the sale of the Jersey City and East Orange properties. On March 31, 2006, the BPU approved the sale of the Freehold property. Verizon was not obligated to share the proceeds from its land sales with ratepayers. Rate Counsel appeals from the BPU approvals, limiting its challenge solely to the issue of appropriateness of the profit sharing provisions. Specifically, Rate Counsel contends that the BPU's ruling denying ratepayers the sharing of proceeds from the sale of utility property based upon the form of regulation is inherently wrong and should be reversed and vacated. The specific arguments are:
A. The BPU's interpretation that N.J.S.A. 48:2-21.18 limits its authority under N.J.S.A. 48:3-7 to require sharing of proceeds is an impermissible expansion of the scope of N.J.S.A. 48:2-21.18 beyond what the statute provides. Such action is legal error and is arbitrary, capricious, and an abuse of discretion that eviscerates and harms the interest of New Jersey ratepayers which the Board has been entrusted to protect.
B. The Board's decision to deny ratepayers in the sharing of proceeds from the sale of [Verizon] utility property constituted administrative rule making, within the meaning of the Administrative Procedure Act, N.J.S.A. 52:14B-1 to 15 and required a rulemaking.
C. Public policy supports the sharing of proceeds from the sale of a utility's assets with New Jersey ratepayers, and the Board's action is inconsistent with that public policy and should be vacated.
Rate Counsel also contends that the BPU's failure to address issues raised by Rate Counsel below relating to prudency was arbitrary, capricious and amounted to reversible error, which warrants remanding to the Board for consideration. In particular, Rate Counsel argues:
A. Once raised prudency issues must be addressed and there is Board precedent for addressing the prudency of business decisions made by a utility company.
B. The Board's ruling deprived Rate Counsel of a fair opportunity to address factual questions related to prudency that would have assisted the Board in its review, and may have potentially altered the Board's ultimate ...