                  NOT FOR PUBLICATION WITHOUT THE
                APPROVAL OF THE APPELLATE DIVISION


                               SUPERIOR COURT OF NEW JERSEY
                               APPELLATE DIVISION
                               DOCKET NOS. A-1685-15T1
                                           A-2705-15T1
                                           A-2706-15T1
IN THE MATTER OF THE PETITION
OF SOUTH JERSEY GAS COMPANY FOR         APPROVED FOR PUBLICATION
A DETERMINATION PURSUANT TO THE
PROVISIONS OF N.J.S.A. 40:55D-19.           November 7, 2016

IN THE MATTER OF THE PETITION            APPELLATE DIVISION
OF SOUTH JERSEY GAS COMPANY FOR
A CONSISTENCY DETERMINATION FOR
A PROPOSED NATURAL GAS PIPELINE.
____________________________________________

          Argued October 11, 2016 – Decided November 7, 2016

          Before Judges Yannotti, Fasciale and Gilson.

          On appeal from the Board of Public Utilities,
          No. GO13111049, and from the Executive
          Director   of   the   Pinelands   Commission,
          Application No. 2012-0056.001.

          Mariel R. Bronen of the New York bar, admitted
          pro hac vice, argued the cause for appellant
          Pinelands Preservation Alliance (Dechert LLP,
          attorneys; Ms. Bronen, George G. Gordon and
          Roxanne R. Wright, on the brief).

          Renée   Steinhagen   argued   the  cause for
          appellants   New   Jersey   Sierra  Club and
          Environment New Jersey (New Jersey Appleseed
          Public Interest Law Center, attorneys; Ms.
          Steinhagen, on the brief).

          Ted Nissly (Fried, Frank, Harris, Shriver &
          Jacobson LLP) of the Washington, D.C. bar,
          admitted pro hac vice, argued the cause for
          amici curiae Brendan T. Byrne, James J.
          Florio, and Christine Todd Whitman (Mr. Nissly
          and Cole Schotz, P.C., attorneys; Christopher
          P. Massaro and Mark J. Pesce, of counsel and
          on the brief; Mr. Nissly, Douglas Baruch
          (Fried, Frank, Harris, Shriver & Jacobson LLP)
          of the Washington, D.C. bar, admitted pro hac
          vice, and Mary Elizabeth Phipps (Fried, Frank,
          Harris, Shriver & Jacobson LLP) of the New
          York bar, admitted pro hac vice, on the
          brief).

          Caroline Vachier, Deputy Attorney General,
          argued the cause for respondents New Jersey
          Board of Public Utilities and New Jersey
          Pinelands Commission (Christopher S. Porrino,
          Attorney General, attorney; Melissa H. Raksa,
          Assistant Attorney General, of counsel; Ms.
          Vachier, Helene P. Chudzik, Geoffrey R.
          Gersten   and  Timothy   P.  Malone,   Deputy
          Attorneys General, on the brief).

          Ira G. Megdal argued the cause for respondent
          South Jersey Gas Company (Cozen O'Connor,
          P.C., attorneys; Mr. Megdal, Peter J. Fontaine
          and Mark A. Lazaroff, on the brief).

          John G. Valeri, Jr., argued the cause for
          respondent-intervenor R.C. Cape May Holdings,
          L.L.C. (Chiesa Shahinian & Giantomasi, P.C.,
          attorneys; Mr. Valeri and Michael K. Plumb,
          on the brief).

          James W. Glassen, Assistant Deputy Rate
          Counsel, argued the cause for respondent
          Division of Rate Counsel (Stephanie A. Brand,
          Director, New Jersey Division of Rate Counsel,
          attorney; Mr. Glassen, on the brief).

    The opinion of the court was delivered by

YANNOTTI, P.J.A.D.

    These appeals arise from a proposal by South Jersey Gas

Company (SJG) to construct a natural gas pipeline through several


                                2                          A-1685-15T1
municipalities in the Pinelands Area. On December 14, 2015, Nancy

Wittenberg,     Executive    Director       of   the   Pinelands     Commission

(Commission), issued a letter finding that SJG's proposed pipeline

was   consistent   with     the   minimum    standards    of   the   Pinelands

Comprehensive Management Plan (CMP), N.J.A.C. 7:50-1.1 to -10.35.

In addition, on December 16, 2015, the Board of Public Utilities

(Board) granted a petition by SJG pursuant to N.J.S.A. 40:55D-19,

and determined that the Municipal Land Use Law (MLUL), N.J.S.A.

40:55D-1   to    -163,    and     any   local    governmental      development

regulations adopted pursuant to the MLUL, shall not apply to the

construction or operation of the pipeline.

      Pinelands Preservation Alliance (PPA) and the New Jersey

Sierra Club and Environment New Jersey (jointly, Sierra Club)

appeal from the Board's December 16, 2015 decision. Sierra Club

also appeals from Wittenberg's determination.

      For the reasons that follow, we remand the matter to the

Commission for further proceedings and a final decision on whether

SJG's proposed pipeline is consistent with the minimum standards

of the CMP. We also affirm the Board's decision granting SJG's

petition pursuant to N.J.S.A. 40:55D-19, but remand the matter to

the Board for entry of an amended order stating that approval of

the petition is conditioned upon a final decision of the Commission

that the pipeline conforms to the CMP.

                                        3                               A-1685-15T1
                                            I.

      We    briefly      summarize    the    pertinent        facts     and   procedural

history. The B.L. England Generating Station (BLE) at Beesley's

Point in Upper Township, Cape May County,                         is a 447-megawatt

electricity-generating facility that is powered using coal, oil,

and diesel fuel. BLE provides electric power to the Pennsylvania,

New   Jersey,      and    Maryland    markets.        In   2006,      the     New    Jersey

Department of Environmental Protection (DEP) ordered Atlantic City

Electric Company (ACE), which was then the owner of BLE, to meet

certain emissions standards, repower, or shut BLE down.                         In 2007,

ACE sold BLE to RC Cape May Holdings (RC), an affiliate of a

Delaware limited liability company, Rockland Capital.

      In 2012, DEP amended its 2006 order, and gave RC until 2016

to comply. RC decided to repower the facility using natural gas

provided by SJG, which is a public utility that provides natural

gas to approximately 360,000 customers within Camden, Cape May,

Cumberland,       Gloucester,      and   Salem        Counties.    SJG      proposed       to

construct a pipeline that consists of 1) a "dedicated line" that

would      run    about    eight     miles       in   Upper     Township,       from       an

interconnect point/regulator station to the metering station at

BLE; and (2) a "reliability line" that would run about fourteen

miles      from    Maurice      River       Township       to     the       interconnect

point/regulator station in Upper Township, where it would connect

                                             4                                      A-1685-15T1
to SJG's existing transmission and distribution systems and serve

as a secondary source of supply for SJG's customers in Southern

Jersey during a natural gas emergency.

       The    pipeline      would     be    constructed     within       three     state

regulatory      pinelands       management        areas:   the    Pinelands        Rural

Development Area, the Pinelands Village, and the Pinelands Forest

Area. Under the CMP, public service infrastructure is a permitted

land    use    in    the    Rural     Development        Areas,    N.J.A.C.        7:50-

5.26(b)(10),        and    in   the   Pinelands      Villages,     N.J.A.C.        7:50-

5.27(a)(1).     Public      service        infrastructure    is,     however,        only

permitted in the Forest Areas if "intended to primarily serve only

the needs of the Pinelands." N.J.A.C. 7:50-5.23(b)(12).

        On July 24, 2012, SJG filed a development application with

the Commission, seeking authorization and approval to construct

the    pipeline.     The    Commission's         staff   deemed    the    application

complete on July 29, 2013, but found that the proposed project did

not meet the land use requirements in the CMP for the Forest Areas.

The Commission's staff informed SJG that it had not established

that the pipeline was "intended to primarily serve only the needs

of the Pinelands" because it would serve SJG customers outside of

the Pinelands.

       On April 29, 2013, the Board issued an order authorizing SJG

to impose tariffs and allocate costs of constructing the pipeline.

                                             5                                   A-1685-15T1
In addition, in June 2013, the Board granted SJG's petition for

issuance of an order finding that the proposed pipeline complied

with N.J.A.C. 14:7-1.4, a regulation that governs the siting of

natural    gas    pipelines,     and    requires     compliance     with    certain

federal safety regulations.

       On November 4, 2013, SJG filed a petition with the Board,

seeking an order pursuant to N.J.S.A. 40:55D-19, declaring that

the MLUL and any ordinance or regulation made under the authority

of the MLUL shall not apply to the proposed pipeline project (the

MLUL    petition).     The    Board    designated    Commissioner         Joseph    L.

Fiordaliso       to   serve    as     hearing   officer,     and    Commissioner

Fiordaliso thereafter held the first public hearing on SJG's MLUL

petition.

       Meanwhile,     the    Commission's    staff    and   the    Board's     staff

negotiated and drafted a memorandum of agreement (MOA), to allow

the project to be built in the Pinelands Area even though staff

had determined that it did not comply with the minimum standards

of the CMP. N.J.A.C. 7:50-4.52(c)(2) provides that the Commission

may enter into an intergovernmental agreement with any Federal,

State, or local government, that allows "such agency" to carry out

"specified development activities that may not be fully consistent

with"    N.J.A.C.     7:50-5    (minimum     standards      for    land    use     and

intensity), and N.J.A.C. 7:50-6 (management programs and minimum

                                         6                                   A-1685-15T1
standards for development and land use in the Pinelands).1

      On December 9, 2013, the Commission's staff held a public

hearing and accepted written comments on the completed draft MOA.

At the hearing, representatives from PPA and Sierra Club objected

to the project. Members of the public also submitted comments

opposing and supporting the project. In addition, four former

Governors — Governors Brendan T. Byrne, Thomas Kean, James J.

Florio, and Christine Todd Whitman - opposed the project, taking

the position that it would compromise the integrity of the CMP.

       On January 3, 2014, Wittenberg issued a report recommending

that the Commission approve the MOA.               She explained that the

project would serve two purposes: (1) permitting the repowering

of BLE; and (2) providing SJG with the ability to supply natural

gas   to   its   customers   in   Atlantic   and    Cape   May   counties    in

emergencies. At the Commission's meeting on January 10, 2014, the

Commission members considered a resolution authorizing Wittenberg

to execute the MOA.

      The Commission has fifteen members. N.J.S.A. 13:18A-5(a).

Seven members voted in favor of the resolution, seven members

voted against it, and one member recused himself from voting on



1
 It should be noted that although the proposed MOA was an agreement
between the Commission and the Board, it was SJG, not the Board,
which would be engaged in the "specified development" activity.

                                      7                               A-1685-15T1
the resolution. Because the Commission's by-laws provide that the

affirmative vote of eight members is required for the Commission

to take action on a motion or resolution, the MOA was not approved.

SJG thereafter filed a notice of appeal from the Commission's

failure to take action approving the MOA. In July 2014, DEP agreed

that RC would have until May 2017 to comply with its 2006 order.

      In May 2015, SJG submitted a revised pipeline development

application to the Commission, along with additional information

intended to show that the pipeline could be built in the Forest

Area because it was "intended to primarily serve only the needs

of the Pinelands." N.J.A.C. 7:50-5.23(b)(12). SJG noted that the

project had been modified to reduce the impacts in the Forest Area

by   prohibiting    additional     interconnections    with    the    line   and

relocating the interconnect point/regulator station out of the

Forest Area.

      In   addition,    SJG       replaced   three    miles     of    open-cut

installation with horizontal-directional drilling. SJG disclosed

its previously-confidential agreement with RC, which requires SJG

to provide RC an uninterrupted supply of natural gas to BLE for

at least 350 days per year. SJG also provided a report from PJM

Interconnection,     L.L.C.       (PJM),   which   stated     that   continued

operation of BLE was vital to the relevant service area.

      In   August   2015,   the    Commission's    Director    of    Regulatory

                                       8                                A-1685-15T1
Programs found that the application was complete and issued a

Certificate of Filing (COF), which stated in part:

           Based on review of the application, including
           newly submitted information, materials in the
           record and review of prior applications, the
           applicant has demonstrated that the proposed
           gas main is consistent with the permitted use
           standards of the CMP. Specifically, the
           proposed pipeline is designed to transport gas
           to an existing facility, the [BLE] plant
           (built in 1963) that is located in the
           Pinelands.

Wittenberg advised the Commission that after the issuance of the

COF, SJG could continue its MLUL proceeding before the Board.

Wittenberg told the Commission that after the Board's proceedings,

staff   would   review    the    application   another   time   to    ensure

compliance with the CMP.

     On August 21, 2015, Wittenberg wrote to the Board's Executive

Director and enclosed a copy of the COF.         She requested copies of

any petitions that SJG filed with the Board regarding the pipeline

project,   including     SJG's   previously-filed   MLUL   petition,      all

associated hearing and meeting notices and transcripts, copies of

all staff reports, and any draft orders pertaining to SJG's

proposed pipeline project. In October 2015, Fiordaliso conducted

two more public hearings and an evidentiary hearing on the MLUL

petition. PPA was permitted to participate in the evidentiary

hearing.


                                      9                              A-1685-15T1
                                  II.

     In a letter dated December 14, 2015, Wittenberg informed the

Board's   Executive   Director   that   "[b]ased   on   [the]   Pinelands

Commission['s] staff expertise and experience administering the

CMP and our review of the record, the prior finding of consistency

with the CMP in the [COF] issued on August 14, 2015 remains

unchanged." She noted that any order by the Board authorizing

SJG's installation of its pipeline had to be consistent with the

minimum standards in the CMP rules, since that development would

occur in the Pinelands Area.

     Wittenberg reviewed the information she had received from the

Board and addressed the public's comments concerning the project's

consistency with the CMP. She rejected the claim that her staff's

initial finding that SJG's project was inconsistent with the CMP

standards in N.J.A.C. 7:50-5.23 could not be changed. Wittenberg

explained that SJG had revised its proposal by: (1) moving the

proposed interconnect point/regulator station from the Forest Area

and to Pinelands Village; and (2) adding a new provision limiting

the company's ability to connect new customers in the Forest Area.

     SJG also had submitted new and updated information that

previously had not been available for review. She wrote:

           Specifically, . . . the proposed pipeline
           [will] be available to serve the [BLE] plant
           95% of the time. The proposed project will

                                  10                              A-1685-15T1
            also provide an ancillary benefit of providing
            redundant gas service to those customers of
            [SJG] who live both inside and outside of the
            Pinelands Area during an operational upset.
            Given that the primary purpose of the proposed
            project is to provide gas to the [BLE] plant
            95% of the time, a fact not available at the
            time of the Executive Director's initial
            decision, Commission staff found that the
            [SJG]   had    demonstrated   the    project's
            consistency with the Forest Area use standards
            of the Pinelands CMP, i.e., that the proposed
            project primarily serves only the needs of the
            Pinelands by serving the needs of a facility
            located in the Pinelands 95% of the time.

    Wittenberg rejected the claim that SJG did not intend that

its proposed pipeline project would primarily serve to repower

BLE. She explained:

            The Pinelands CMP at N.J.A.C. 7:50-5.23(b)12
            permits the development of public service
            infrastructure, which includes natural gas
            transmission lines, within a Forest Area, if
            such infrastructure is intended to primarily
            serve only the needs of the Pinelands. The
            term 'Pinelands' is defined by the Pinelands
            CMP at N.J.A.C. 7:40-2.11 as including both
            the   Pinelands   Natural  Reserve  and  the
            Pinelands   Area.   Consequently,  the  term
            "Pinelands"   is   broader   than  the  term
            "Pinelands Area" which is defined by the
            Pinelands CMP as the area designated as such
            by Section 10(a) of the Pinelands Protection
            Act.

    Wittenberg    concluded    that      SJG   had   demonstrated    that   its

proposed pipeline is consistent with the permitted use standards

of the CMP. She wrote that the pipeline is designed primarily to

transport   gas   to   BLE,   an   existing     facility   located    in    the

                                    11                                A-1685-15T1
Pinelands. She found that the project is "intended to primarily

serve only the needs of the Pinelands," and was a permitted use

in the Forest Area, pursuant to N.J.A.C. 7:50-5.23(b)(12).

                                  III.

      On December 16, 2015, the Board issued its order on SJG's

MLUL petition. The Board reviewed all the evidence and testimony

of the numerous public comments including those provided by PPA,

the   COF,   and   Wittenberg's   December   14,   2015,   consistency

determination. The Board noted that Wittenberg had concluded the

project was consistent with the minimum standards of the CMP. The

Board found that SJG had met its burden of proof under N.J.S.A.

40:55D-19, and had established that the project was reasonably

necessary for the service, convenience or welfare of the public.

      The Board considered the need for the project, the pipeline

routing, and cost allocation. It found that: (1) conversion of BLE

from coal and oil to gas-fired generation provides an environmental

benefit; (2) continued operation of that plant would serve a need

for capacity in the area and provides a clean source of in-state

power in furtherance of New Jersey's Energy Master Plan ("EMP");

(3) the project would enhance the reliability of SJG's service

territories; and (4) there was no alternative route that would

have less adverse environmental impacts.

      The Board also found that when the nearby Oyster Creek nuclear

                                  12                           A-1685-15T1
power plant is taken out of service in 2019, BLE will be the only

significant base-load power generating station in the coastal area

of   Southern    New    Jersey.   Repowering     BLE     will    increase     power

generation      by   thirty   percent     and   reduce     the   production        of

greenhouse gases, including nitrogen oxides and sulfur dioxide.

      The    Board     rejected   PPA's      contentions    that    SJG's       real

intention is to serve only its existing customers in Atlantic and

Cape May Counties, as evidenced by its statements that it would

pursue the project independently of the repowering of BLE, and

that SJG's pipeline and the repowering of BLE would not serve the

needs of the Pinelands.

      The Board explained that, while it was "sensitive to the

alleged environmental, health and safety concerns raised by the

local residents," it was persuaded by the evidence that SJG "has

considered the environmental impacts of the [p]roject and has

committed to constructing the [p]ipeline guided by the goal of

minimizing those impacts where they cannot be avoided."                The Board

noted that SJG's experts had analyzed the effect the alternative

routes would have on the environment and had selected the preferred

route based upon environmental-permitting considerations and DEP's

input.

      PPA and Sierra Club thereafter filed their notices of appeal.

We consolidated the appeals, and also granted a motion by RC to

                                        13                                  A-1685-15T1
intervene. In addition, we granted a motion by Governors Byrne,

Florio and Whitman to appear as amici curiae.

     On appeal, PPA raises the following issues: (1) the Board and

the Commission's Executive Director lacked jurisdiction to review

the proposed project because the Commission had already declined

to approve it under the Pinelands Protection Act, N.J.S.A. 13:18A-1

to -58, and the CMP rules; (2) the Commission and its Executive

Director acted arbitrarily, capriciously, or contrary to law by

failing to adhere to its original finding that the proposed

pipeline violated the CMP; (3) the Commission erred by failing to

conduct any review and taking any action on the proposed pipeline

project; and (4) the Board acted arbitrarily, capriciously, or

contrary to law by approving SJG's petition pursuant to N.J.S.A.

40:55D-19.

     In its appeals, Sierra Club argues: (1) the Board's decision

to grant SJG's MLUL petition was wrong as a matter of law: (2) the

Board's approval of the MLUL petition must be conditioned upon the

review   and   approval   by   the        Commission   of   SJG's   pipeline

application; (3) the Commission erred by failing to ensure that

all development in the Pinelands is consistent with the CMP;

(4) the Executive Director did not have authority to issue a COF

for the project and end Commission review; and (4) the Executive



                                     14                              A-1685-15T1
Director erred by finding that SJG's project was consistent with

the CMP.

                                          IV.

       PPA    argues     that     the   Executive      Director      did    not    have

jurisdiction or was precluded from issuing her December 14, 2015

consistency determination because: (1) the Commission's staff had

determined that the project, as initially proposed, did not comply

with the minimum standards of the CMP and SJG did not appeal that

determination; (2) the Commission refused to take action approving

the MOA, which would have allowed the project to proceed and SJG

had    appealed     that    determination;       and   (3)    the    pending      appeal

deprived      the   Commission      and    its    staff      from    exercising      any

jurisdiction with regard to the project until the appeal was

dismissed in May 2016. We find no merit in these arguments.

       As    we   have     explained,     the    Commission's       staff   initially

determined that SJG had not established that the project was

"intended to primarily serve only the needs of the Pinelands," as

required by N.J.A.C. 7:50-5.23(b)(12), and therefore could not be

constructed in the Forest Area. However, that was a decision on

SJG's first application, and it was based on the information that

was available at that time.

       Furthermore, the Commission did not issue a decision finding

that    the   project,       as   initially      proposed,     did    not   meet    the

                                          15                                   A-1685-15T1
requirements of N.J.A.C. 7:50-5.23(b)(12). Although the Executive

Director recommended that the Commission approve an MOA with the

Board, based on the assumption that the project was not "intended

to primarily serve only the needs of the Pinelands," the Commission

never acted on the recommendation.

      Thus, the decision by the Commission's staff on SJG's first

application, and the Commission's failure to act on the proposed

MOA did not preclude SJG from submitting a revised proposal, with

additional information intended to establish that the project met

the   requirements   of    N.J.A.C.       7:50-5.23(b)(12).     The    second

application was, in fact, a new matter, which the agency had

authority to consider and act upon.

      Moreover,   SJG's   appeal   from    the   Commission's   failure      to

approve the proposed MOA did not preclude the Commission from

exercising its jurisdiction to review SJG's revised proposal. Rule

2:9-1(a) provides in part that "the supervision and control of the

proceedings on appeal" shall be in the Appellate Division "from

the time the appeal is taken[.]" The filing of an appeal generally

divests the trial court or agency of jurisdiction to act in the

matter under appeal, unless directed to do so by the appellate

court. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J.

366, 376 (1995).



                                   16                                 A-1685-15T1
      The "proceedings on appeal" in SJG's appeal related to the

Commission's failure to approve the MOA.           SJG's second development

application was a separate matter. We are therefore convinced that

SJG's appeal did not divest the agency of jurisdiction to consider

the   revised   development   proposal.      See    Gandolfi     v.   Town    of

Hammonton, 367 N.J. Super. 527, 548 (App. Div. 2004) (noting that

planning   board   had   jurisdiction   to    consider     new   subdivision

application despite pendency of appeal challenging prior denial

of the application because second application was entirely new).

      PPA further argues that the Commission acted arbitrarily,

capriciously and unreasonably by failing to adhere to Wittenberg's

initial determination that the pipeline as initially proposed did

not comply with the CMP. PPA contends that the Commission is bound

by principles of collateral estoppel and res judicata from taking

a different position regarding the project's compliance with the

CMP. PPA asserts the revised proposal was essentially the same as

the initial proposal.

      Again, we disagree. Collateral estoppel and res judicata do

not apply here because Wittenberg's determination pertained to the

first application, and the Commission never rendered a final

decision on that application. See Hennessey v. Winslow Township,

183 N.J. 593, 599 (2005) (noting that re-litigation of an issue

is precluded if the identical issue has been litigated and decided

                                  17                                   A-1685-15T1
in   a    prior      proceeding).     Moreover,    SJG     revised    its   plan   and

submitted         additional        information          for    the    Commission's

consideration on the issue of CMP compliance.

         PPA's arguments on these issues are without sufficient merit

to warrant further comment. R. 2:11-3(e)(1)(E).

                                           V.

         We   turn    to   PPA's    and   Sierra   Club's      arguments    that   the

Executive Director did not have authority to render a final

decision on behalf of the Commission regarding the project's

compliance with the CMP. Amici curiae also argue that under the

Pinelands Act, the Commission was required to vote upon and

determine whether SJG's application complied with the minimum

standards of the CMP.

         Section 502 of the National Parks and Recreation Act of 1978

(the Federal Act), 16 U.S.C.A. § 471i(c), created the Pinelands

National       Reserve,     which    includes      all    or   part   of    fifty-six

municipalities in seven southern New Jersey counties. The Federal

Act directed the Governor of New Jersey to establish a planning

agency to develop a CMP for the National Reserve. 16 U.S.C.A.

§ 471i(d). Governor Byrne thereafter established the Pinelands

Planning Commission. N.J. Exec. Order No. 71 (Feb. 8, 1979), Laws

of N.J. 1979, Vol. II, at 1897-1904.



                                           18                                 A-1685-15T1
     The Pinelands Act was subsequently enacted. It established

the Commission, N.J.S.A. 13:18A-4(a), and directed it to prepare

a CMP to which county and municipal master plans must conform,

N.J.S.A. 13:18A-8 to -10. The Act provided that the CMP must

include a program for its implementation "in a manner that will

insure the continued, uniform, and consistent protection of the

pinelands area in accord with the purposes and provisions of the

[state and federal legislation]." N.J.S.A. 13:18A-8(i).

     The CMP applies to all development in the Pinelands Area.

N.J.A.C. 7:50-1.4. The CMP states in pertinent part that "[t]he

Commission bears the ultimate responsibility for implementing and

enforcing the provisions" of the Pinelands Act and the CMP.

N.J.A.C. 7:50-1.11. The CMP also states that the Executive Director

is the chief administrative officer of the Commission, and is

"charged with the administration and enforcement of" the CMP

subject to the Commission's approval of the Executive Director's

actions. N.J.A.C. 7:50-1.21(a).

     The CMP sets forth procedures and standards for applications

for development in municipalities whose master plans have been

certified by the Commission. N.J.A.C. 7:50-4.31 to -4.42. In

general, for certified municipalities, the CMP provides that the

Executive Director shall initially review preliminary and final

municipal approvals for development within the Pinelands. N.J.A.C.

                               19                           A-1685-15T1
7:50-4.37(a), -4.38(a), and -4.40(a). The CMP further provides

that the Commission may review and issue decisions with regard to

certain approvals. N.J.A.C. 7:50-4.38(b), -4.42, -4.91(a).

     In addition, the CMP establishes procedures for so-called

coordinated      permitting   by    State     agencies.   N.J.A.C.    7:50-4.81

to -4.85. The CMP states that

           No department board, bureau, official or other
           agency of the State of New Jersey shall issue
           any approval, certificate, license, consent,
           permit, or financial assistance for the
           construction   of   any   structure   or   the
           disturbance of any land in the Pinelands Area
           unless such approval or grant is consistent
           with the minimum standards of [the CMP].

           [N.J.A.C. 7:50-4.81(a).]

     Before any application for development in the Pinelands Area

is filed with a State agency, the applicant must submit a copy of

the application to the Commission. N.J.A.C. 7:50-4.81(b). The

State   agency    should   not     consider    the   application     unless   the

Executive Director has issued a COF, a notice of filing, and a

certificate of completeness, or the Commission has approved an

application for public development. Ibid.             The Executive Director

then determines

           what, if any, special interests the Commission
           has with respect to the application, the
           extent to which the Commission staff should
           participate in any proceedings held by the
           state agency with which the application is to
           be filed, and whether any Commission review

                                       20                                A-1685-15T1
           provided for in this Plan should be conducted
           before, after or simultaneously with any
           proceedings to be conducted by the state
           agency.

           [N.J.A.C. 7:50-4.82(a).]

      If the Executive Director finds that the State agency may

conduct   its    proceedings       on   the    application       "prior    to     or

simultaneously with any Commission review provided for in [the

CMP]," the Executive Director issues a COF, which indicates that

the   application   has     been   filed     with    the   Commission     and   the

applicant is authorized to file the application with the State

agency. N.J.A.C. 7:50-4.82(b).

      The Executive Director then determines the degree to which

Commission      staff   shall      participate       in    the   State      agency

proceedings.     N.J.S.A.     7:50-4.82(c).         Such   participation        "may

include, but is not limited to

           1. Submitting a written analysis of any
           concerns and opinions the Commission staff has
           with respect to the conformance of the
           proposed   development    with   the   minimum
           standards of the [CMP], including a list of
           any conditions which it determines should be
           imposed in the event that the permit is
           granted;

           2. Submitting written evidence with respect
           to the conformance by the proposed development
           with the minimum standards of [the CMP].
           [N.J.A.C. 7:50-4.82(c).]




                                        21                                 A-1685-15T1
      The CMP does not, however, expressly provide that, in the

coordinated    permitting    process,     the   Commission   may   review     a

determination by its staff or the Executive Director as to whether

a particular development plan meets the minimum standards of the

CMP. Furthermore, the CMP does not confer on the Executive Director

or the Commission's staff the authority to render final decisions

on   CMP   compliance   in   these   circumstances.    There   also    is    no

provision in the Pinelands Act that confers upon the Executive

Director authority to render a final decision for the Commission

in the coordinated permitting process.

      Here, the Commission retains final decision-making authority

as to whether SJG's proposed pipeline is consistent with the

minimum standards of CMP. Indeed, as we have pointed out, the CMP

states, "the Commission bears the ultimate responsibility for

implementing and enforcing the provisions" of the Pinelands Act

and the CMP. N.J.A.C. 7:50-1.11. The Commission therefore retains

"ultimate responsibility" under the CMP to review the proposed

project and render a final decision on CMP compliance.

      On appeal, the Commission argues that N.J.S.A. 40:55D-19

provides sufficient authority for the Board to render a final

decision as to whether SJG's development proposal is consistent

with the CMP. The Commission points out that the Pinelands Act

states that

                                     22                               A-1685-15T1
           no State approval, certificate, license,
           consent, permit, or financial assistance for
           the construction of any structure or the
           disturbance of any land within [the Pinelands]
           shall be granted unless such approval or grant
           conforms to the provisions of [the CMP].

           [N.J.S.A. 13:18A-10(c).]

     However, in deciding whether to grant a petition brought

under N.J.S.A. 40:55D-19, the Board determines whether the MLUL

and local regulations adopted pursuant to the MLUL should be

waived.   The    Board's   approval      of     any   MLUL   petition   must     be

consistent with the minimum standards of the CMP, but the Board

is not empowered to make that determination in the first instance.

In this matter, that decision must be made by the Commission,

pursuant to its authority under the Pinelands Act and the CMP.

     We note that, in this matter, the Board did not make a factual

finding   on    the   critical   issue     of    whether     SJG's   pipeline    is

"intended to primarily serve only the needs of the Pinelands" and

therefore a permitted use in the Forest Area. The Board merely

relied upon Wittenberg's decision on this issue, and on that basis,

its approval of SJG's MLUL petition complied with N.J.S.A. 13:18A-

10(c).

     We therefore conclude that the matter must be remanded to the

Commission for further proceedings so that the Commission may

review the Executive Director's determination, in light of the


                                      23                                  A-1685-15T1
objections that have been raised by PPA, the Sierra Club, and

amici curiae. The Commission shall determine whether to review the

Executive   Director's     decision     based   on   the   factual    record

developed before the Board, or whether the parties should be

permitted to present additional evidence on the question of whether

the pipeline is consistent with the minimum standards of the CMP.

     The Commission also shall determine whether to refer the

matter for a hearing before an Administrative Law Judge (ALJ). In

that regard, we note that, under the CMP's provisions for review

of development applications in municipalities with certified land

use regulations, the Commission may review a preliminary approval

if it raises substantial issues of CMP compliance. N.J.A.C. 7:50-

4.37(a)-(b).

     If so, the Executive Director must give notice of the staff's

determination to the applicant, local permitting agency, and any

interested persons. N.J.A.C. 7:50-4.37(b). The applicant, local

permitting agency, and any interested persons may request a hearing

before an ALJ. Ibid.     Thereafter, the Commission may issue a final

decision on the matter. N.J.A.C. 7:50-4.91(e).

     The Commission shall consider whether the same or similar

procedures should be followed in reviewing Wittenberg's decision.

See In re Application of John Madin, 201 N.J. Super. 105, 128-34

(App.   Div.)   (holding    that   municipalities      whose   development

                                   24                                A-1685-15T1
ordinances have not been certified by the Commission are entitled

to an evidentiary hearing on the grant of development approval),

certif. granted, 102 N.J. 380 (1985), certif. vacated, 103 N.J.

689 (1986). Moreover, the public should be afforded notice and the

opportunity to be heard before the Commission renders a final

decision on the application. Id. at 135-36.

     In view of our decision, we need not address the other issues

raised   by   the   parties   concerning   the   merits   of     Wittenberg's

decision.

                                    VI.

     PPA argues that the Board did not have jurisdiction to

consider SJG's MLUL petition. It also argues that the Board acted

arbitrarily, capriciously and contrary to law in approving SJG's

MLUL petition. PPA contends the record does not support the Board's

determination that the pipeline is "reasonably necessary for the

service, convenience, or welfare of the public," as required by

N.J.S.A. 40:55D-19. We disagree.

     PPA contends that the Board did not have jurisdiction to

review SJG's MLUL petition because SJG previously had appealed the

Commission's failure to approve the MOA for the project. We

disagree with this contention for essentially the same reasons

stated   previously    regarding   PPA's   contention     that    the    appeal

precluded     the    Commission    from    considering     SJG's        revised

                                    25                                  A-1685-15T1
application. The MOA and SJG's MLUL petition both pertained to the

pipeline, but these were separate matters before State agencies,

each with its own statutory responsibilities. We conclude the

Board had jurisdiction to review and act upon SJG's petition.

     We turn to PPA's challenge to the Board's decision. The scope

of review of the final determination of an administrative agency

is limited. In re Carter, 191 N.J. 474, 482 (2007). An agency's

decision will be affirmed "unless there is a clear showing that

it is arbitrary, capricious, or unreasonable, or that it lacks

fair support in the record." In re Herrmann, 192 N.J. 19, 28

(2007). In reviewing an administrative agency's decision, we will

grant considerable deference to the agency's expertise, where such

expertise is a relevant factor. Campbell v. N.J. Racing Comm'n,

169 N.J. 579, 588 (2001).

     Here, SJG petitioned the Board for waiver of the MLUL and

local   government   MLUL   regulations   and   approvals   pursuant    to

N.J.S.A. 40:55D-19, which requires the Board to find that

           the present or proposed use by the public
           utility . . . is necessary for the service,
           convenience or welfare of the public . . . and
           that no alternative site or sites are
           reasonably available to achieve an equivalent
           public benefit, the public utility . . . may
           proceed in accordance with such decision of
           the [Board], any ordinance or regulation made
           under    the    authority    of    this    act
           notwithstanding.


                                  26                             A-1685-15T1
       In making its determination, the Board must consider the

site, the community zoning plan and zoning ordinances, the physical

characteristics of the plot, and the surrounding neighborhood. In

re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 377 (1961). When

determining    reasonable      necessity,       the    Board   must      consider

alternative    sites    and    their        advantages   and      disadvantages,

including their costs. Ibid. The Board also must weigh all of the

parties'   interests,    and    where        those    interests    are   equally

balanced, it must give the utility preference in light of the

Legislature's clear intent that the broad public interest to be

served is greater than local considerations. In re Monmouth Consol.

Water Co., 47 N.J. 251, 258 (1966); Pub. Serv., supra, 35 N.J. at

377.

       Here, the Board considered the relevant factors, and there

is sufficient credible evidence to support its finding that SJG

had shown that the project is "reasonably necessary for the

service, convenience or welfare of the public." N.J.S.A. 40:55D-

19. The Board found that the "dedicated line" is reasonably

necessary and would serve the goals of the EMP, one of which is

to expand in-state resources fueled by natural gas. The Board

determined that there is a need for electric-generating capacity

in the area of BLE, noting that the Oyster Creek nuclear power

plant in Southern New Jersey will be retired in 2019.

                                       27                                 A-1685-15T1
     The Board noted that BLE will be the only significant base-

load power generating station in the coastal area of Southern New

Jersey. The Board also found that the "dedicated line" will cause

a "significant improvement" in air quality in the region, by

reducing the production of greenhouse gases, nitrogen oxides, and

sulfur dioxide.

     In addition, the Board found that the "reliability line" will

enhance SJG's ability to provide reliable natural gas service to

its customers. The Board noted that presently a single, twenty-

mile-long pipeline services 60,000 SJG customers in Cape May

County, and a disruption anywhere along this line could jeopardize

service to these customers. The Board also noted that there is no

other location in SJG's system with "a single upset vulnerability"

of this magnitude.

     PPA argues that the Board's decision unlawfully waives the

pipeline's need to comply with the CMP. We do not agree. As noted

previously, N.J.A.C. 7:50-4.81 mandates that no State agency may

grant   approval,    license,   or        financial   assistance   for   any

construction or disturbance in the Pinelands "unless such approval

or grant is consistent with the minimum standards of the [CMP]."

     Here, the Board's order does not state that the pipeline is

not subject to the Pinelands Act or the CMP. Indeed, the Board's

decision correctly recognizes that the pipeline must be consistent

                                     28                             A-1685-15T1
with the minimum standards of the CMP. Thus, there is no merit to

PPA's contention that the Board has waived compliance with the

Pinelands Act and the CMP.

     PPA further argues that the Board could not lawfully find

that the project conforms to the CMP. PPA contends that the record

shows that the pipeline is not "intended to primarily serve only

the needs of the Pinelands." We note, however, that the Board did

not make its own findings as to whether the project complies with

the CMP. The Board merely took note of Wittenberg's determination

of December 14, 2015, and relied upon that determination as a

basis for concluding that the project met the minimum standards

of the CMP. As we have determined, Wittenberg's decision must be

reviewed by the Commission and the Commission must decide whether

the project complies with the CMP.

     PPA also contends that the record does not support the Board's

decision that the pipeline furthers the goals of the EMP. PPA

asserts the evidence does not show that the pipeline will result

in a significant improvement in air quality and other positive

environmental   impacts.   PPA   also   asserts   that   while   the   EMP

encourages the use of "clean" energy sources like natural gas, the

proposed pipeline violates the Pinelands Act and CMP, and the

repowering of BLE is not necessary to ensure the reliability of

the natural gas supply to SJG's customers in Southern New Jersey.

                                  29                              A-1685-15T1
     PPA's arguments lack sufficient merit to warrant discussion

in this opinion. R. 2:11-3(e)(1)(E). Suffice it to say, however,

there is sufficient credible evidence in the record to support the

Board's findings on these issues, and PPA has provided no basis

for this court to second-guess the Board's considered judgment

that the pipeline furthers the goals of the EMP and is reasonably

necessary for the service, convenience or welfare of the public.

     On appeal, Sierra Club contends that the Board's decision

waiving municipal approvals was wrong as a matter of law. Sierra

Club contends that N.J.S.A. 40:55D-19 does not apply to Pinelands-

based reviews and ordinances, and that the Board had no authority

to override any local approval that is otherwise required by the

Pinelands Act and any ordinances authorized and adopted under that

Act. We are not persuaded by this argument.

     By its plain language, N.J.S.A. 40:55D-19 gives the Board the

authority to waive the MLUL and any local ordinance or regulation

adopted pursuant to the MLUL. The Board's authority under N.J.S.A.

40:55D-19 necessarily includes the power to waive any MLUL review

of approvals by municipalities in the Pinelands. The Pinelands Act

does not limit the exercise of this power. However, as the Board

recognized in its final decision, any development project for

which local MLUL regulation is waived pursuant to N.J.S.A. 40:55D-



                               30                          A-1685-15T1
19 remains subject to the Pinelands Act and the minimum standards

of the CMP.

      Sierra Club also contends that the Board erred by relying

upon Wittenberg's December 14, 2015 determination as a basis for

its understanding that the project is consistent with the minimum

standards of the CMP. As stated previously, Wittenberg was not

authorized to render a final consistency determination regarding

the project, and the matter will be remanded so that the Commission

can render a final decision on that issue.

      We   therefore     conclude     that    the    Board's     reliance     upon

Wittenberg's     determination        was    misplaced.   Consequently,        the

Board's December 16, 2015 order must be amended to state that

approval of SJG's MLUL petition shall be conditioned upon issuance

of a final decision by the Commission finding that the pipeline

project meets the minimum standards of the CMP.

      In view of our determination, we need not address the other

issues raised by PPA, Sierra Club or amici curiae.

      Accordingly,      we   remand     Executive     Director     Wittenberg's

December 14, 2015 determination to the Commission for further

proceedings in conformity with this opinion. We also remand the

matter to the Board for entry of a modified order, stating that

the   approval    of    SJG's   petition     under    N.J.S.A.    40:55D-19      is

conditioned      upon    the    Commission's         issuance    of   a     final

                                       31                                 A-1685-15T1
determination finding that the pipeline project meets the minimum

standards of the CMP. In all other respects, the Board's decision

and order of December 16, 2015, is affirmed.

     The Board's final decision is affirmed in part, and remanded

in part for entry of an amended order of approval. In addition,

Executive   Director   Wittenberg's   decision   is   remanded   to   the

Pinelands Commission for further proceedings in accordance with

this opinion. We do not retain jurisdiction.




                                 32                              A-1685-15T1
