February 10, 2011
IN THE MATTER OF THE APPEAL OF JERSEY CENTRAL POWER & LIGHT COMPANY, PURSUANT TO N.J.S.A. 40:55D-19, FROM A DECISION OF THE TOWNSHIP OF TEWKSBURY LAND USE BOARD DENYING AN APPLICATION FOR PRELIMINARY AND FINAL SITE PLAN APPROVAL AND VARIANCES IN CONNECTION WITH THE CONSTRUCTION OF A 230 KV/12.5 KV SUBSTATION.
On appeal from a Final Decision of the New Jersey Board of Public Utilities, Docket No. EO09010010.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 11, 2011 --
Decided Before Judges Parrillo, Yannotti and Espinosa.
Appellant Friends of Fairmount Historic District (FFHD) appeals from a final determination of the Board of Public Utilities (Board), which authorized the Jersey Central Power & Light Company (JCP&L) to proceed with the construction of a 230 kV/12.5 kV electrical substation in the Township of Tewksbury (Tewksbury or Township). For the reasons that follow, we affirm.
JCP&L filed an application with Tewksbury's Land Use Board (TLUB) seeking preliminary and site plan approval and certain variances required for the construction of an electrical substation on Fox Hill Road in the Township. The TLUB conducted sixteen hearings on the matter, and at its meeting on December 3, 2008, denied the application. On February 18, 2009, the TLUB issued a resolution memorializing its decision.
On January 7, 2009, JCP&L filed a petition with the Board pursuant to N.J.S.A. 40:55D-19, seeking authorization to construct the substation, notwithstanding the TLUB's denial of its application. The Township filed an answer to the petition.
In addition, FFHD filed a motion with the Board seeking leave to intervene. On April 27, 2009, the Board granted FFHD's motion.
In support of its petition, JCP&L submitted pre-filed direct testimony of John Scopino (Scopino), its Supervisor of Engineering Services; and Thomas N. Walker (Walker), the company's Advanced Engineer and Project Lead. The Township submitted the direct testimony of Carl E. Hintz, a licensed professional planner, landscape architect and wetlands scientist, along with the transcripts and exhibits marked in the proceedings before the TLUB. JCP&L filed rebuttal testimony from Scopino, Walker and Kevin O'Brien (O'Brien), a licensed professional planner.
In May 2009, a member of the Board conducted a site visit of the proposed substation, which was attended by the attorneys and representatives of the parties. On June 15, 2009, a site report was issued, setting forth the observations made by the Board member during the site visit.
The Board conducted an evidentiary hearing in the matter on June 17, 2009. At the hearing, JCP&L presented testimony from Scopino, Walker, and O'Brien. The Township presented testimony from Hintz and Melanie A. Reese, a licensed professional engineer. On June 24, 2009, the Board conducted a public hearing on JCP&L's petition in Califon, New Jersey. On September 14, 2009, the Board issued a Decision and Order authorizing JCP&L to construct, install and operate the substation.
In its decision, the Board found that JCP&L had established by a preponderance of the evidence that the proposed substation is necessary for the service, convenience and welfare of the greater public that the company serves. The Board noted that the number of residential customers in the area has increased by thirty percent from 1999 through 2006, and additional transformer capacity is required to alleviate the current existing overload of greater than twenty percent during peak loads at the Chester substation and to reduce the load at the Greater Crossroads substation.
The Board also noted that the proposed substation would improve system reliability because it would be directly beneath existing transmission lines. According to the Board, this eliminates the need for long lines and many steel poles, and a local power source reduces the length of distribution feeder conductors, which reduces the number and length of outages caused by external forces, such as lightning strikes and car/pole accidents.
The Board additionally noted that improved voltage support was required for areas in the Township, where JCP&L customers have experienced voltage below the company's tariff requirements. The Board pointed out that customers at the "far end of a circuit" have the lowest voltage at peak times, and the best solution to this problem is to have circuits of short to moderate lengths. The Board found that the installation of the substation would "improve existing voltage issues" in the Township.
The Board further found that JCP&L had shown that it made good faith efforts to find the most suitable location for the substation. The Board noted that the Township had denied a previous application to place the substation on Rockaway Road. Thereafter, JCP&L had reassessed its needs and conducted an extensive survey of twenty-eight sites.
JCP&L submitted testimony that nineteen of those sites were not within sufficient proximity to the existing 230 kV transmission lines or within one and one-half miles of the "load center." The remaining nine sites were deemed inappropriate for a variety of reasons, such as environmental constraints and refusal of the owners to make the property available.
In addition, the Board addressed concerns by the Township and FFHD regarding fires and other emergencies. The Board stated that such emergencies are "rare" but "in the unlikely event of [such] an emergency, JCP&L has adequately demonstrated that precautions have been taken by both JCP&L and the local Fire Department to ensure resident safety."
The Board also rejected arguments by the Township and FFHD that the substation was not sited a sufficient safe distance from other buildings, based upon the "Firefighter's Handbook," issued by the State Department of Community Affairs (DCA). The Board found that DCA's handbook applied to fighting fires, not the siting of power substations.
The Board additionally found that the proposed facility was in conformity with the Institute of Electronics Engineers (IEEE) Guide for Substation Fire Protection, which states that a substation should be a distance of fifty feet or more from other buildings if there is no intervening barrier. The Board added that JCP&L had addressed concerns raised by the local Fire Chief by providing an additional fire buffer of five feet of stone and twenty feet of maintained turf between the substation fence and the driveway which is shared by residents of the two flag lots.
The Board stated that "JCP&L has agreed to provide necessary equipment and additional training and education to the Tewksbury Fire Department, as well as to the neighboring local fire departments." The Board additionally noted that JCP&L had "agreed to provide an emergency walking path from the two flag lots to Route 517, thus providing an additional alternate route in the event of an emergency."
The Board therefore found that: (1) the proposed substation "is necessary to provide safe, adequate and reliable electrical service in the Tewksbury area;" (2) the substation "is necessary for the service, convenience and welfare of the public;" (3) the site is reasonable, considering the interest of the general public that JCP&L serves; (4) the substation and its equipment "will meet or exceed the requirements of the National Electrical Safety Code"; (5) the substation will be designed and constructed in accordance with all applicable industry standards so as to "minimize adverse impacts upon the environment;" (6) the substation will not adversely affect the public health and welfare; (7) the substation "can be constructed, installed and operated without substantial detriment to the public good and without causing undue economic injury to the neighboring property owners;" (8) there is no reasonable, practical and permanent alternative to the substation that would have less adverse impact upon the environment, surrounding community or upon the Township's zoning and land use ordinance; (9) JCP&L conducted a good faith, reasonable and extensive analysis of alternative sites for the substation; (10) there are no alternative sites that are reasonably available; and (11) JCP&L has and will continue to take necessary steps to ensure that the company and local/fire safety officials are prepared adequately in the unlikely event of an emergency.
The Board thus ordered that JCP&L be permitted to construct, install and operate the proposed substation, without regard to any local land use ordinance or regulation. The Board stated that the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, and any regulations or requirements made under the authority of the MLUL were not applicable to the siting, installation, construction or operation of the substation. The Board also stated that its order was not "a certificate, license, consent, or permit to construct or disturb any land within the jurisdiction of" areas governed by the Highlands Water Protection and Planning Act, N.J.S.A. 13:20-1 to -35, and the New Jersey Department of Environmental Protection (NJDEP).
The Board also ordered that JCP&L work with appropriate officials in the Township, as well as the residents of the two flag lots "to construct an emergency walking path that will be adequate to ensure that, in the unlikely event of a fire or other emergency, those residents will have an additional escape route in the opposite direction of the Substation, should those residents desire such path." In addition, the Board ordered JCP&L "to continue to work with the appropriate fire and safety officials in Tewksbury and the surrounding community to ensure that both they and JCP&L have adequate equipment and training in the event of an emergency."
FFHD appeals and raises the following arguments for our consideration:
THE FINDINGS OF THE BOARD OF PUBLIC UTILITIES THAT LED TO THE DECISION APPROVING JCP&L'S APPLICATION PURSUANT TO N.J.S.A. 40:55[D]-19 LACK FAIR SUPPORT IN THE ADMINISTRATIVE RECORD.
A. The Standard of Review.
B. The Board of Public Utilities gave insufficient weight to the Tewksbury Land Use Board's decision and analysis when reviewing the JCP&L appeal.
C. The Board of Public Utilities should have deferred to the analysis and determination of the Tewksbury Land Use Board in its Evaluation of the effect of the proposed substation on the community zone plan and the effect of the proposed substation on the community zone plan.
D. The Board's failure to adequately analyze the safety issues while granting relief pursuant to N.J.S.A. 40:55D-19 amounts to action that is arbitrary, capricious or unreasonable.
E. Because the Board of Public Utilities failed to adequately analyze the economic impact of the proposed substation on the Property Values of the adjacent homes and the historic district, the BPU's Decision and Order should be reversed.
F. Because the BPU failed to sufficiently examine the alternative site analysis provided by JCP&L, the September 14, 2009[,]
Decision and Order authorizing construction of the proposed substation should be reversed.
We have thoroughly reviewed the record and conclude that the arguments presented by FFHD are without merit. We accordingly affirm the Board's determination substantially for the reasons stated in the Board's Decision and Order dated September 14, 2009. We add the following.
A final determination of the Board is entitled to a presumption of validity. In re Pub. Serv. Electric & Gas Cos. Rate Unbundling, Stranded Costs & Restructuring Filings, 167 N.J. 377, 385 (2001). A decision of the Board, like that of any administrative agency, will only be set aside if it is arbitrary, capricious or unreasonable, or lacks fair support in the evidence. Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9 (2009; Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963).
The MLUL provides in pertinent part that a public utility or electric power generator, as defined in N.J.S.A. 48:3-51, may appeal to the Board when it is aggrieved by the action of a municipal agency in the exercise of its powers under the MLUL, "with respect to any action in which the public utility or electric power generator has an interest[.]" N.J.S.A. 40:55D-19. The MLUL further provides that if, after a hearing on the appeal, with notice to all parties primarily concerned in the matter, the Board shall find that the present or proposed use by the public utility or electric power generator of the land described in the petition is necessary for the service, convenience or welfare of the public, including, but not limited to, in the case of an electric power generator, a finding by the [B]oard that the present or proposed use of the land is necessary to maintain reliable electric or natural gas supply service for the general public and that no alternative site or sites are reasonably available to achieve an equivalent public benefit, the public utility or electric power generator may proceed in accordance with such decision of the [Board], any ordinance or regulation made under the authority of this act notwithstanding.
In In re Public Service Electric & Gas Co., 35 N.J. 358 (1961), the Supreme Court discussed the standards to be applied by the Board when considering an appeal under N.J.S.A. 40:44D-19. The Court stated that the phrase in the statute "for the service, convenience and welfare of the public" refers to all of the public served by utility and not the local group benefited by a particular zoning ordinance. In re Pub. Serv. Electric & Gas Co., supra, 35 N.J. at 376-377. The Court said that, to secure relief under the statute, the utility must show that the proposed use is reasonably, but not absolutely or indispensably, necessary for the public service, convenience and welfare of some particular location. Id. at 377.
In addition, the Court stated that, because the statute requires that the particular site or location must be "reasonably necessary," the Board must consider the community's zone plan and ordinance, as well as physical characteristics of the property involved, as well as the surrounding neighborhood and the effect that the proposed use will have upon it. Ibid. The Court stated that the Board also must consider alternate sites and methods, as well as their respective advantages and disadvantages to all of the interests involved, including costs. Ibid.
The Court added that the Board must "weigh all interests and factors in the light of the entire factual picture and adjudicate the existence or non-existence of reasonable necessity therefrom." Ibid. The Court stated that, "[i]f the balance is equal, the utility is entitled to the preference, because the legislative intent is clear that the broad public interest to be served is greater than local consideration." Ibid.
We are satisfied from our review of the record that the Board undertook the analysis required by In re Public Service Electric & Gas Co., and made the necessary factual findings. We are also satisfied that there is sufficient credible evidence to support the Board's findings and its determination authorizing JCP&L to construct, install and operate the proposed substation, without regard to any ordinance or regulation adopted by the Township under the authority of the MLUL.
FFHD argues, however, that the Board should have deferred to the TLUB's findings with regard to the proposed use. We disagree. When it adopted N.J.S.A. 40:55D-19, the Legislature intended "that a utility should not have to depend on securing a local variance in cases where the importance of the installation to the general good overshadows the municipal policy." In re Application of Hackensack Water Co., 41 N.J. Super. 408, 424 (App. Div. 1956).
Indeed, in enacting N.J.S.A. 40:55D-19, the Legislature recognized "that the public interest in proper regulation of public utilities transcends municipal or county lines, and that a centralized control must be entrusted to an agency whose continually developing expertise will assure uniformly safe, proper and adequate service by utilities throughout the State." In re Pub. Serv. Electric & Gas Co., supra, 35 N.J. at 371. Thus, in considering JCP&L's appeal in this matter, the Board was not required to defer to the judgment of the TLUB regarding the placement of the substation.
FFHD also argues that the Board erred in its analysis of the safety issues. FFHD maintains that, while the Board ordered JCP&L to work with local officials and the residents of the two flag lots to construct a walking path, this will not be sufficient in the event of a fire or other emergency. FFHD further contends that it was unreasonable for the Board to approve the construction of the substation without at least requiring JCP&L to obtain permits necessary for the walkway. Again, we disagree.
Here, the record supports the Board's finding that the siting of the proposed substation was in conformity with the IEEE Guide for Substation Fire Protection, which prescribes a fifty-foot siting distance. The record shows that the common driveway for the two flag lots is about 150 feet from the proposed transformer and about 300 feet from the homes.
The Board also determined that JCP&L had addressed the concerns of local fire officials. There is sufficient credible evidence in the record to support that finding. Moreover, the Board conditioned the construction of the substation on the emergency walking path, should the residents of the flag lots "desire such [a] path."
FFHD additionally argues that the Board failed to give due consideration to the economic impact the substation will have upon the value of properties in the area. We note that, although FFFD intervened in the proceedings before the Board, it did not raise this issue below, nor did it present any evidence on this issue. Mere allegations as to the decline in property values is insufficient to establish that a proposed use will adversely affect the value of properties in the community. See Smart SMR
v. Borough of Fair Lawn Board of Adj., 152 N.J. 309, 334 (1998). FFHD further contends that the Board failed to properly
review JCP&L's analysis of the availability of alternative sites. The record shows, however, that JCP&L reviewed twenty-eight potential sites for the substation, based on objective criteria identified in its site selection study, which included proximity to distribution and transmission lines, environmental considerations, and the impact on the community and surrounding properties. JCP&L provided sound reasons for eliminating the alternatives and selecting the site on Fox Hill Road in the Township.
We have considered FFHD's other contentions and find them to be of insufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).
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