On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-1268-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves, Sabatino and Newman.
On leave granted, defendant New Jersey Power Line Neighbors Coalition ("the Coalition"), a group of homeowners in Cinnaminson Township residing near electric power lines of plaintiff, Public Service Electric and Gas Company ("PSE&G"), appeals an order of the Law Division dated August 10, 2009. The order in question rejected the Coalition's claim that a January 2002 Consent Order exempted its members' properties from more stringent tree trimming and vegetation management regulations adopted by the Board of Public Utilities ("BPU"). PSE&G relies upon the BPU regulations, which have been strengthened in certain respects since the time that the Consent Order was issued in 2002, as authority to perform such trimming and vegetation activities on the homeowners' premises. PSE&G also contends that the trial court's order properly recognizes paramount public safety considerations, and the dangers to the public posed by trees and other vegetation encroaching upon or near its power lines.
For the reasons explained in this opinion, we affirm the Law Division's order, with some limited modifications. We also defer further factual disputes concerning the prospective trimming and vegetation management upon the subject properties to the primary regulatory jurisdiction of the BPU, pursuant to Boss v. Rockland Elec. Co., 95 N.J. 33, 41 (1983), with the trial court continuing to have jurisdiction over any open legal issues.
The record presents the following circumstances and chronology of events pertinent to our consideration of the issues on appeal. The discrete issues before us are essentially legal and regulatory in nature, and the facts relating to those issues are substantially undisputed.
Beginning in the 1930s, PSE&G acquired various 150-foot easements on numerous properties located in Cinnaminson Township. Each of the easements grants PSE&G a right-of-way to construct and maintain high voltage electric transmission lines. PSE&G currently maintains two such electric transmission lines on the easements, which respectively carry 230,000 volts and 138,000 volts each. According to PSE&G's brief, these power lines not only serve customers in New Jersey but "impact the entire electric grid in the Northeast."
The easements expressly grant PSE&G the right to "trim, cut[,] and remove all trees, buildings and other structures or obstructions now or hereinafter existing thereon[.]" The easements do contain exceptions for non-interfering fruit trees up to a height of twenty feet in certain areas, or up to a height of fifteen feet in other areas.*fn2
Since the 1960s, Cinnaminson has developed from a mainly rural locale to a suburban one. Consequently, PSE&G's easements in Cinnaminson no longer typically pass through fields and orchards, but instead traverse approximately two hundred modestly-sized residential lots. The original center lines of the easements are now the rear lot lines on many of the affected homes, so that two interstate electrical transmission lines run through many residential backyards. PSE&G contends that all of the affected homeowners within the Coalition purchased their homes "with the knowledge that a high-voltage transmission line right-of-way ran through their rear yards."
In 2000, PSE&G began cutting trees and removing improvements within the dimensions of the easements. After residents complained, the Township of Cinnaminson issued a stop work order. PSE&G responded by filing an action in the Law Division in May 2000 against the Township, its Zoning Board of Adjustment, and the Township's zoning officer.*fn3 The trial court permitted homeowners seeking to maintain their sheds and other encroachments within the easements to intervene in the action and to file answers.
A settlement agreement in the litigation filed by PSE&G was eventually reached by the parties in late 2001. PSE&G sought to bind all property owners in the easement, not just the specific intervening homeowners, to the parties' settlement. Therefore, at PSE&G's request, Assignment Judge John Sweeney required notice of the proposed settlement to all affected landowners, and scheduled a fairness hearing for November 2001. Written notice of the settlement and hearing was sent to all individual property owners affected by the easements and duplicate notice was published in a local newspaper. The notice advised, in pertinent part, that it was "intended to inform all interested parties of the [c]court's review of the [p]roposed settlement plan and the establishment of certain restrictions on certain easement maintenance initiatives and use of the [r]ight[-]of[-w]ay between PSE&G and property owners along the [r]ight[-]of[-w]ay in the Township of Cinnaminson." The fairness hearing before Judge Sweeney took place on November 26, 2001.
On January 7, 2002, Judge Sweeney issued a written opinion, accompanied by a Final Order Approving Settlement ("the Consent Order"), approving the settlement terms. Subject to certain conditions, the Consent Order permitted the affected residents to retain many of their improvements, trees, and landscaping within the PSE&G right-of-ways. The Consent Order generally permitted structures existing on the affected properties as of May 5, 2001--the date that PSE&G had filed its complaint--to remain. However, it required homeowners to obtain prior written consent from PSE&G, as well as Township approval, before installing new structures and obstructions, or modifying existing ones, within the PSE&G easements. Further, the Consent Order allowed PSE&G to deny consent to a homeowner if the denial was related to the "safety of the residents; the safety of PSE&G personnel or equipment; the operational needs of the transmission system; and/or transmission system reliability."
With respect to tree trimming, the Consent Order allowed PSE&G to maintain a thirty-foot trimming and topping "clearance envelope" between the tops of trees and the lowest "sag point" of the overhead wires,*fn4 based on regulations of the Occupational Safety and Health Administration ("OSHA").
With regard to vegetation, the Consent Order approved an attached list of slow-growing and low-growing trees and shrubs that could be planted inside the right-of-way, "except for [on] the designated [fourteen-foot] access path and [at] the bases of towers or poles." The Consent Order specifically noted that "[n]othing may be planted in the [r]ight[-]of[-w]ay, however, within [fifty feet] of the centerline of the bases of towers and/or poles . . . and/or within the [fourteen-foot] access path at any time[,] unless PSE&G waives this specific prohibition in writing[.]"
Further, paragraph six of the Consent Order allowed for: "[f]uture topping and trimming . . . in accordance with the requirements of the National Electric Safety Code, OSHA, and other nationally recognized regulations, as they now exist or may be amended in the future." In addition, the Consent Order outlined a process for notifying homeowners of "non-emergent tree and vegetation maintenance":
10. Future, periodic non-emergent tree and vegetation maintenance will be the subject of prior notice to homeowners as required by statute. The notice will be a minimum of 20 calendar days. The notice will reasonably describe the proposed work or advise homeowners that a plan of the proposed work is on file with the Township clerk and may be inspected. During the 20 day time frame, PSE&G will also provide to the Township governing body an informal presentation of the proposed work, and the notice to homeowners shall state the time, date and place of the informal presentation.
Judge Sweeney noted in the Consent Order that the court had "balanced the relative interests of the parties and the public" and "found the settlement agreement to be fair and reasonable in all respects . . . [.]"
The settlement between the parties was implemented without apparent controversy for several years. However, the regulatory context substantially changed after August 14, 2003, when a tree came into contact with an electric transmission line in Ohio. That incident triggered a major multi-state power failure, leaving more than fifty million people in the United States without electric power. Following this national episode, the United States Department of Energy issued a report instructing states to create new regulations for vegetation management near power lines. Consequently, on December 18, 2006, the BPU responded by promulgating transmission line vegetation management regulations, N.J.A.C. 14:5-9.6, pursuant to its statutory authority under N.J.S.A. 48:2-12.
The BPU regulations addressing vegetation management were initially made effective on March 17, 2008. Thereafter, on May 8, 2008, the BPU announced its intention to revise the specific provisions of N.J.A.C. 14:5-9, in "consideration of reduced requirements surrounding agricultural crops, as well as additional discretion for utilities within the [r]ight[-]of[-w]ay border zone."*fn5
Following a period of public comment, the most recent amendments to the BPU's vegetation management regulations were adopted on December 17, 2009, and published in the New Jersey Register on January 19, 2010. See 42 N.J.R. 508(a). The BPU received and considered the input of more than one hundred commenters prior to adoption, including several residents of Cinnaminson. Id. at 508-09.
In essence, the BPU's updated regulations implicated by this appeal limit vegetation growth within the area of a transmission line right-of-way in two crucial respects. First, the present regulations prohibit "woody plants that mature above three feet tall"--except for agricultural crops that naturally mature at twelve feet or less--in the so-called "wire zone." N.J.A.C. 14:5-9.6(c)(1) and (2). Second, the regulations generally require the utility to apply "integrated vegetation management" ("IVM") in the so-called "border zone" near the transmission line. N.J.A.C. 14:5-9.6(d). The regulations also require utility companies to ensure that "[c]learing under transmission lines shall be wide enough within the [utility's] right[-]of[-]way so that no vegetation or parts of vegetation will grow or fall into the transmission lines[.]" N.J.A.C. 14:5-9.6(e)(1). In adopting the most recent amendments, the BPU stated that the ...