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                                                     SUPERIOR COURT OF NEW JERSEY
                                                     APPELLATE DIVISION
                                                     DOCKET NO. A-2183-17T3

IN THE MATTER OF THE
PETITION OF JERSEY CENTRAL
POWER & LIGHT COMPANY
PURSUANT TO N.J.S.A. 40:55D-19
FOR A DETERMINATION THAT
THE MONTVILLE-WHIPPANY 230
KV TRANSMISSION PROJECT IS
REASONABLY NECESSARY FOR
THE SERVICE, CONVENIENCE
OR WELFARE OF THE PUBLIC.
___________________________________

                Submitted October 3, 2019 – Decided November 1, 2019

                Before Judges Nugent and DeAlmeida.

                On appeal from the New Jersey Board of Public
                Utilities, Docket No. EO15030383.

                Weiner Law Group LLP, attorneys for appellant
                Montville Township Board of Education (Stephen J.
                Edelstein, of counsel and on the brief; Aimee S.
                Weiner, on the brief).

                Cozen O'Connor, PC, attorneys for respondent Jersey
                Central Power & Light Company (Gregory Eisenstark,
                on the brief).
            Gurbir S. Grewal, Attorney General, attorney for
            respondent New Jersey Board of Public Utilities (Jason
            W. Rockwell, Assistant Attorney General, of counsel;
            Andrew M. Kuntz, Deputy Attorney General, on the
            brief).

PER CURIAM

      Appellant Montville Township Board of Education (BOE) challenges the

November 21, 2017 final order of respondent New Jersey Board of Public

Utilities (BPU) granting the petition of respondent Jersey Central Power & Light

Company (JCP&L) to construct a transmission line project not subject to the

Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, or any other

governmental ordinances or regulations, permits, or license requirements made

under the authority of the MLUL. We affirm.

                                        I.

      The following facts are derived from the record. JCP&L is a public utility

in the business of purchasing, distributing, transporting, and selling electricity

to approximately 1.1 million customers in New Jersey. It is subject to BPU's

regulatory supervision and control. See N.J.S.A. 48:2-13(a).

      JCP&L filed a petition with the BPU pursuant to N.J.S.A. 40:55D-19

seeking approval to construct a seven-mile long 230 kV transmission line

between its substations in East Hanover Township and Montville Township (the


                                                                          A-2183-17T3
                                        2
Project). The transmission line will be constructed in thirteen segments, mostly

along existing transmission lines in JCP&L's existing right of way (ROW). The

Project also includes upgrades to the two substations. The petition required BPU

to determine whether the Project is reasonably necessary for the service,

convenience, or welfare of the public and is, therefore, not subject to zoning and

land use ordinances, or other government regulations enacted pursuant to the

MLUL.

      BPU transferred the petition to the Office of Administrative Law for a

hearing. BOE thereafter intervened. 1 An Administrative Law Judge (ALJ) held

a three-day evidentiary hearing at which JCP&L presented live and pre-filed

testimony describing the need for the new transmission line.

      The ALJ found that PJM Interconnection, LLC (PJM), a regional

transmission organization, was approved by the Federal Energy Regulatory

Commission to plan the region's electricity transmission grid. PJM ensures

transmission owners, including JCP&L, comply with North American Electric

Reliability Corporation (NERC) reliability standards.




1
  Montville Township also intervened, but resolved its objections to the Project
through a stipulation with JCP&L altering the Project's route.
                                                                          A-2183-17T3
                                        3
       PJM's responsibilities include identifying violations of NERC's reliability

criteria.   There are three categories of conditions used to assess criteria

violations: (1) Category A examines whether a system functions properly and

can meet customer demand needs under normal operating conditions; (2)

Category B examines system function when there is a loss of any single

generating unit, transmission line, transformer, circuit breaker, capacitor, or

single pole of a bi-polar transmission line; and (3) Category C examines system

functionality when there are events resulting in the loss of any Category B

element followed by the loss of a second element in the transmission system.

       In 2012, PJM identified a Category C reliability violation in JCP&L's bulk

electric system resulting from the hypothetical outage of the Montville-Roseland

230 kV line followed by the loss of either the Kittatinny-Newton 230 kV line or

the Newton-Montville 230 kV line. This scenario would result in an interruption

in service affecting approximately 86,719 JCP&L customers and violate PJM's

planning criteria. A failure of this magnitude also could result in significant

financial penalties for JCP&L. PJM determined the Project, if constructed,

would address the criteria violation.

       JCP&L presented testimony detailing its consideration of alternative

routes and methods to address the criteria violation. The utility considered


                                                                          A-2183-17T3
                                        4
constructing a 115 kV transmission line, but rejected that option because its

substations were not designed to support an additional 115 kV circuit, and an

additional 115 kV line would not provide a satisfactory level of resilience.

JCP&L also considered placing a 230 kV transmission line underground. The

utility rejected this option because the underground transmission line would: (1)

create several environmental issues related to wetlands and other sensitive areas;

(2) multiply the costs of the Project by four to ten times; (3) increase the

magnetic field exposure at ground level because the transmission line would be

closer to the surface; and (4) increase repair time of the transmission line.

      JCP&L also performed a routing study that considered three alternative

routes. One of the alternatives had two alternate segments. The routing study

concluded the proposed route was superior because it is the shortest, minimizes

the overall effect of the Project on the natural and human environment, avoids

unreasonable costs and special design requirements, and best complies with the

BPU's requirement concerning the use of existing ROWs because eighty-nine

percent of the route parallels or rebuilds existing transmission lines.

      JCP&L presented two expert witnesses to discuss the effects of electric

and magnetic fields (EMF), audible noise, and radio noise associated with the




                                                                           A-2183-17T3
                                        5
Project. The experts concluded the EMF exposure when the Project is operating

would be well below State and international exposure limits.

      At the hearing, BOE's President testified. She was not qualified as an

expert witness in any field. She explained BOE takes issue with segment 10 of

the Project, which calls for the construction of a transmission line adjacent to

one of BOE's schools, the Robert R. Lazar Middle School.                The new

transmission line would be carried on new 110-foot-tall monopoles constructed

next to existing transmission lines in an existing JCP&L ROW abutting the

property on which the school is located. The new monopoles will be seventy

feet from the edge of the ROW and approximately 175 feet closer to the school

than the existing transmission lines. Some of the trees that presently serve as a

buffer between the school and the existing transmission line would be removed.

      The BOE President expressed concern regarding the height of the new

monopoles and their proximity to the school. She stated that the BOE was

concerned about the potential health effects on students and faculty arising fro m

exposure to EMF and noise from the Project. BOE offered no expert testimony

to substantiate its concern or any evidence with respect to the EMF and noise it

contends would be generated by the Project. The BOE President also testified

BOE has aesthetic concerns related to vegetation clearance near the school and


                                                                          A-2183-17T3
                                        6
the visual prominence of the new monopoles from school property. Finally, the

BOE President testified BOE was concerned the Project would limit potential

expansion of the school building due to the proximity of the new monopoles.

BOE did not identify any present plans for expansion of the school and offered

no expert testimony opining on potential building expansion limitations.

       In rebuttal, JCP&L offered testimony from three witnesses with expertise

in electric transmission facilities confirming the Project will meet all safety and

design criteria, including with respect to EMF exposure and noise. In addition,

the witnesses testified the proposed new monopoles will be shorter than existing

structures. The witnesses also testified no building expansion would be allowed

in JCP&L's existing ROW, whether or not the Project is constructed, and the

Project would not affect construction outside the ROW.

       The ALJ issued an initial decision concluding the Project is reasonably

necessary for the service, convenience, or welfare of the public to enable JCP&L

to provide safe, adequate, and reliable service. BOE filed exceptions.

       On November 21, 2017, BPU issued a final order adopting the ALJ's

initial decision in part 2, finding:

             (1) That, in light of the NERC criteria violation and
             reliability concerns identified in this proceeding, there

2
    BPU modified the decision to account for the Montville/JCP&L stipulation.
                                                                           A-2183-17T3
                                        7
             is no reasonable, practical, and permanent alternative to
             the construction and operation of the Project that would
             have any less adverse impact upon the environment,
             surrounding community, or local land use ordinances;

             (2) That JCP&L conducted a good faith, reasonable,
             and extensive analysis of alternative methods for the
             Project, and the Project represents the most effective
             and efficient solution to the expected reliability criteria
             violations;

             (3) That the findings contained within this Order are
             the result of a thorough and complete review of the
             record in the proceeding. The Board's findings are
             limited to the facts and circumstances of this particular
             Project along this particular route and shall not be
             construed as a determination by this Board on any other
             application[; and]

             (4) That the Project as proposed is to be designed and
             constructed in accordance with all applicable industry
             standards in a manner that will minimize impacts upon
             the environment, to the extent known or predictable[.]

In light of these findings, BPU determined JCP&L met its burden of proof under

N.J.S.A. 40:55D-19 and ordered "that neither N.J.S.A. 40:55D-1, et seq., nor

any other governmental ordinances or regulations, permits or license

requirements made under the authority of N.J.S.A. 40:55D-1, et seq. shall apply

to the siting, installation, construction, or operation of the Project . . . ."

      This appeal followed.       BOE makes the following arguments for our

consideration:


                                                                                  A-2183-17T3
                                           8
POINT I

UNDER THE APPLICABLE STANDARD       OF
REVIEW, THE BPU'S DECISION MUST     BE
REVERSED.

POINT II

THE BPU ERRED WHEN IT DETERMINED THAT
JCP&L DEMONSTRATED THAT THE PROJECT IS
REASONABLY NECESSARY FOR THE SERVICE,
CONVENIENCE, OR WELFARE OF THE PUBLIC.

POINT III

THE BPU'S DECISION IS INCONSISTENT WITH
ITS PRIOR DIRECTIVE THAT REASONABLE
EFFORTS SHOULD BE MADE TO INCREASE THE
DISTANCE BETWEEN TRANSMISSION LINES
AND THE LAZAR MIDDLE SCHOOL.

POINT IV

THE BPU ERRONEOUSLY CONCLUDED THAT
JCP&L CONSIDERED ALTERNATIVE ROUTES
AND METHODS, INCLUDING THOSE RAISED BY
THE BOARD.

i.   THE BOARD PROPOSED, AND JCP&L
FAILED TO ADEQUATELY CONSIDER, A 115 KV
LINE ALTERNATIVE AND ITS ADVANTAGES AS
COMPARED TO THE PROPOSED PROJECT.

ii. JCP&L  FAILED    TO   ADEQUATELY
CONSIDER A PARTIALLY UNDERGROUND
ALTERNATIVE AND ITS ADVANTAGES AS
COMPARED TO THE PROPOSED PROJECT.


                                          A-2183-17T3
                   9
            iii. JCP&L   FAILED  TO    ADEQUATELY
            CONSIDER AN UNDER-BUILD ALTERNATIVE AT
            THE LAZAR MIDDLE SCHOOL PROPERTY AND
            ITS ADVANTAGES AS COMPARED TO THE
            PROPOSED PROJECT.

                                        II.

      The scope of our review of a final decision of an administrative agency is

limited and we will not reverse such a decision unless it is "arbitrary, capricious,

or unreasonable, or . . . not supported by substantial credible evidence in the

record as a whole." In re Stallworth, 208 N.J. 182, 194 (2011) (citing Henry v.

Rahway State Prison, 81 N.J. 571, 579-80 (1980)).             When making that

determination, we consider:

            (1) whether the agency's action violates express or
            implied legislative policies, that is, did the agency
            follow the law; (2) whether the record contains
            substantial evidence to support the findings on which
            the agency based its action; and (3) whether in applying
            the legislative policies to the facts, the agency clearly
            erred in reaching a conclusion that could not reasonably
            have been made on a showing of the relevant factors.

            [Ibid. (citing In re Carter, 191 N.J. 474, 482-83
            (2007)).]

We are, however, "in no way bound by the agency's interpretation of a statute

or its determination of a strictly legal issue." Carter, 191 N.J. at 483 (quoting

Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)).


                                                                            A-2183-17T3
                                        10
      When reviewing BOE's arguments we remain mindful that "[t]he

Legislature has endowed the BPU with broad power to regulate public utilities

[and] considerable discretion in exercising those powers." In re Pub. Serv. Elec.

& Gas Co.'s Rate Unbundling, 167 N.J. 377, 384-85 (2001) (quoting In re

Elizabethtown Water Co., 107 N.J. 440, 449-50 (1987)). The Board's decisions

are presumed to be valid "and will not be disturbed unless [the court] find[s] a

lack of 'reasonable support in the evidence.'" Id. at 385 (quoting In re Jersey

Cent. Power & Light Co. 85 N.J. 520, 527 (1981)).

      BPU is authorized by statute to approve a public utility's proposed use of

its property without the need to comply with ordinances or regulations enacted

pursuant to the MLUL.       According to N.J.S.A. 40:55D-19, where, after a

hearing, BPU finds a public utility's proposed use of land

            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 [BPU], any ordinance or
            regulation made under the authority of [the MLUL]
            notwithstanding.

When making a determination under the statute, BPU must weigh the interests

of all parties. Where the interests are equal, "the utility is entitled to the

preference, because the legislative intent is clear that the broad public interest


                                                                          A-2183-17T3
                                       11
to be served is greater than local considerations." In re Public Serv. Elec. & Gas

Co., 35 N.J. 358, 377 (1961). A utility need not prove that a proposed project

is "absolutely or indispensably[] necessary" but only that it is "reasonably

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

      After a careful review of the record in light of these precedents, we

conclude there is substantial credible evidence supporting BPU's final order.

BPU found credible the testimony of numerous witnesses, including experts,

detailing the reliability criteria violation in JCP&L's present transmission

system and how the Project will address that violation and enhance the utility's

resilience. BOE raises no convincing argument that BPU's decision is lacking

in evidentiary support or that the agency acted outside its statutory authority .

      In addition, BPU considered detailed testimony explaining the alternate

transmission routes and configurations considered by JCP&L before it

determined the route and configurations for which JCP&L sought approval were

the most ideally suited to solve the reliability criteria violation. The proposed

route was the shortest of the alternatives, had the least environmental impact,

and did not present the complications, environmental threats, and costs

associated with putting a new transmission line underground, as proposed by




                                                                           A-2183-17T3
                                       12
BOE. The argument JCP&L did not consider alternatives to the Project is

unsupported by the record.3

      BPU also accepted expert testimony the Project, when operational, will

emit EMF well below acceptable levels. BOE presented only one witness, its

President, who does not have expertise in electricity transmission lines or EMF.

She expressed BOE's concerns regarding the safety of the Project, but offered

no expert testimony or other evidence supporting BOE's contention the Project

will emit EMF dangerous to students and faculty or pose other harms.

      BOE's President also expressed concerns about the visual environment at

the Lazar school. It was well within the BPU's authority to determine the BOE's

aesthetic concerns were outweighed by the public need for the Project. Finally,

BOE's President speculated the Project may limit school expansion plans that

might one day materialize. BPU acted within its authority when it determined

that concerns regarding potential expansion of the school were baseless because

construction in the utility's ROW would be precluded whether or not the Project

was constructed, and the record contains no evidence that expansion outside the

ROW would be curtailed unreasonably.


3
   Although BOE argues constructing an underground transmission line in the
area of the middle school is a preferable alternative, it offered no testimony with
respect to the feasibility, cost, or efficacy of such an alternative.
                                                                           A-2183-17T3
                                       13
      We do not agree with BOE's argument BPU's final order must be vacated

under res judicata or collateral estoppel. "The term 'res judicata' refers broadly

to the common-law doctrine barring relitigation of claims or issues that have

already been adjudicated."     Velasquez v. Franz, 123 N.J. 498, 505 (1991)

(emphasis in original).    "The application of res judicata doctrine requires

substantially similar or identical causes of action and issues, parties, and relief

sought." Culver v. Ins. Co. of North Am., 115 N.J. 451, 460 (1989) (emphasis

in original). "In addition, there must be a 'final judgment by a court or tribunal

of competent jurisdiction.'" Ibid. (quoting Charlie Brown of Chatham v. Bd. of

Adjustment, 202 N.J. Super. 312, 327 (App. Div. 1985)).

      "Collateral estoppel, in particular, represents the 'branch of the broader

law of res judicata which bars relitigation of any issue which was actually

determined in a prior action, generally between the same parties, involving a

different claim or cause of action.'" Tarus v. Borough of Pine Hill, 189 N.J.

497, 520 (2007) (quoting Sacharow v. Sacharow, 177 N.J. 62, 76 (2003)). "A

court has broad discretion to determine whether application of collateral

estoppel is appropriate." Adelman v. BSI Fin. Servs., Inc., 453 N.J. Super. 31,

39 (App. Div. 2018). In order

            [f]or the doctrine of collateral estoppel to apply to
            foreclose the relitigation of an issue, the party asserting

                                                                           A-2183-17T3
                                       14
             the bar must show that: (1) the issue to be precluded is
             identical to the issue decided in the prior proceeding;
             (2) the issue was actually litigated in the prior
             proceeding; (3) the court in the prior proceeding issued
             a final judgment on the merits; (4) the determination of
             the issue was essential to the prior judgment; and (5)
             the party against whom the doctrine is asserted was a
             party to or in privity with a party to the earlier
             proceeding.

             [Olivieri v. Y.M.F. Carpet, Inc., 186 N.J. 511, 521
             (2006) (quoting In re Estate of Dawson, 136 N.J. 1, 20-
             21 (1994)).]

      "A fundamental tenet of collateral estoppel is that the doctrine cannot be

used against a party unless that party either participated in or was 'in privity with

a party to the earlier proceeding.'" State v. K.P.S., 221 N.J. 266, 277 (2015)

(quoting In re Estate of Dawson, 136 N.J. 1, 20 (1994)). "That tenet prohibits

application of collateral estoppel if a party has not had a 'full and fair opportunity

to litigate an issue.'" State v. McKinney, 223 N.J. 475, 493 (2015) (quoting

K.P.S., 221 N.J. at 278)). "A relationship is usually considered 'close enough'

only when the party is a virtual representative of the non-party, or when the non-

party actually controls the litigation." O'Brien v. Telcordia Techs., Inc., 420

N.J. Super. 256, 269 (App. Div. 2011) (quoting Zirger v. Gen. Accident Ins. Co.,

144 N.J. 327, 338 (1996)).




                                                                              A-2183-17T3
                                         15
      BOE argues BPU's decision must be reversed because it is inconsistent

with a 2010 BPU decision regarding a 145-mile-long 550 kV Public Service

Electric & Gas (PSE&G) project which passed through Montville. A portion of

the transmission line for that project ran adjacent to the Lazar school. BOE

intervened in that matter, identifying three transmission towers it argued were

too close to the school. BOE identified locations where those towers could be

moved. BPU found that moving the towers would be "prudent and reasonable"

and directed PSE&G to provide a report identifying a relocation or realignment

of the towers unless it would be "highly impractical or not possible" to do so.

      JCP&L was not a party to the PSE&G application. It did not participate

in the 2010 proceeding. We reject BOE's argument that JCP&L is in privity

with PSE&G because both are public utilities with parallel ROWs adjacent to

the school. In addition, the utilities' two applications do not concern the same

subject matter.   The PSE&G project and the Project are distinct and were

evaluated by BPU on the basis of their individual characteristics and locations.

      To the extent we have not specifically addressed any of BOE's remaining

arguments, we conclude they lack sufficient merit to warrant discussion in a

written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.


                                                                         A-2183-17T3
                                       16
