                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                          SUPERIOR COURT OF NEW JERSEY
                                          APPELLATE DIVISION
                                          DOCKET NO. A-4565-13T3

IN THE MATTER OF THE
IMPLEMENTATION OF L. 2012,                   APPROVED FOR PUBLICATION
C. 24, N.J.S.A. 48:3-87(t) -
A PROCEEDING TO ESTABLISH A                     November 12, 2015
PROGRAM TO PROVIDE SRECs TO
CERTIFIED BROWNFIELDS, AREAS                   APPELLATE DIVISION
OF HISTORICAL FILL, AND LANDFILL
FACILITIES - MILLENIUM LAND
DEVELOPMENT, LLC (LOVE LANE)
_________________________________

             Submitted September 22, 2015 – Decided November 12, 2015

             Before Judges Reisner, Leone and Whipple.

             On appeal from the       New   Jersey    Board    of
             Public Utilities.

             Justin   Michael    Murphy,   attorney           for
             appellant Millenium Land Development.

             John J. Hoffman, Acting Attorney General,
             attorney for respondent New Jersey Board of
             Public   Utilities  (Andrea  M.   Silkowitz,
             Assistant Attorney General, of counsel;
             Jennifer Hsia, Deputy Attorney General, on
             the brief).

       The opinion of the court was delivered by

REISNER, P.J.A.D.

       Millenium Land Development (Millenium) appeals from a July

19, 2013 decision of the Board of Public Utilities (Board) and

from   the   Board's   May   21,   2014   decision   denying   Millenium's

motion for reconsideration.        In the May 21 decision, the Board
confirmed its earlier rejection of Millenium's application filed

pursuant to the Solar Act, N.J.S.A. 48:3-87(t) (subsection (t)),

but stated different grounds for the rejection.                            We agree with

the Board that Millenium's application could not be considered

under subsection (t), because it concerned a solar project to be

sited on property which had been valued, assessed and taxed as

farmland, and such applications are governed by N.J.S.A. 48:3-

87(s) (subsection (s)).             Moreover, there was no evidence that

the land was a contaminated industrial or commercial site within

the Act's definition of a brownfield.                         See N.J.S.A. 48:3-51.

Accordingly, we affirm.

                                         I

        As further discussed in section II of this opinion, the

Solar   Act    of     2012   (the   Act),        L.   2012,    c.    24,    amended     the

Electric Discount and Energy Competition Act, N.J.S.A. 48:3-49

to -98.1, in an effort to further several goals of the State's

2011 Energy Master Plan.            Those policies included promoting the

installation of solar projects on contaminated industrial and

commercial          sites    that      would          likely        otherwise      remain

unproductive, while "discouraging large-scale solar projects on

farmland      and    open    space."         Press     Release,        Office     of    the

Governor,      Governor       Christie       Builds      on     Record       of   Growing




                                             2                                    A-4565-13T3
Renewable Energy Sources with Action to Strengthen Solar Market

(July 23, 2012), http://www.state.nj.us/governor/news/news/55201

2/approved/20120723a.html.

    Acting pursuant to subsection (t) of the Act, the Board

commenced   a    proceeding    to      consider      applications     for   solar
                                                             1
projects to be sited on brownfield locations.                    The Act defines

"brownfield" as "any former or current commercial or industrial

site that is currently vacant or underutilized                    and on which

there has been, or there is suspected to have been, a discharge

of a contaminant."       N.J.S.A. 48:3-51.2            Millenium, the contract

purchaser   of   land   most   recently       used     as   an   apple   orchard,

submitted   an   application      as   part   of     the    Board's   proceeding,

claiming that its land was a brownfield because the application

of agricultural pesticides had left lead and arsenic in the

soil.   Millenium       planned     to   build     a    solar    electric   power

generation facility on the property, and the purpose of its


1
  Subsection (t) also applies to solar projects located "on an
area of historic fill or on a properly closed sanitary landfill
facility," N.J.S.A. 48:3-87(t)(1), and the Board also invited
applications relating to those properties. However, those
provisions of subsection (t) are not addressed in this appeal,
because Millenium only claimed that its land was a brownfield.
2
  This definition tracks the language used to define "brownfield
site" in the Brownfield and Contaminated Site Remediation Act,
N.J.S.A. 58:10B-1, legislation aimed at "urban and suburban
areas formerly used for commercial and industrial purposes."
N.J.S.A. 58:10B-1.2.



                                         3                               A-4565-13T3
application     was   to    qualify     the    project    for    solar    renewable

energy      certificates     (SRECs)     and    other     financial       subsidies

available under the Act.           See N.J.S.A. 48:3-87(t)(1).

       In evaluating Millenium's application, the Board consulted

with     the   Department     of    Environmental        Protection      (DEP),    as

required by the Act, N.J.S.A. 48:3-87(t)(1).                    On July 19, 2013,

the    Board   rejected      Millenium's      application,       based    on   DEP's

advice that there had been no discharge of a contaminant on

Millenium's land, and hence it was not a "brownfield" as defined

by    the   Act.      See    N.J.S.A.    48:3-51.         Millenium      moved    for

reconsideration of the Board's decision. On reconsideration, the

two agencies agreed that regardless of whether a discharge had

occurred, subsection (t) did not apply to Millenium's project

because it was to be sited on agricultural property.

       Exercising     its   statutory    authority       under    N.J.S.A.     48:2-

40(e) to reopen, modify or rehear its prior decisions, the Board

reconsidered the basis for its July decision.                       Based on the

undisputed     factual      record,   the     Board   found     that   Millenium's

proposed site was agricultural land, which had been used as an

orchard and had been valued, assessed and taxed as farmland

pursuant to the Farmland Assessment Act of 1964, N.J.S.A. 54:4-

23.1 to -33.       See N.J.S.A. 48:3-87(s).           The Board further found

that Millenium had produced no evidence that the property had




                                         4                                 A-4565-13T3
ever been used for commercial or industrial purposes, within the

Act's definition of "brownfield."                  See N.J.S.A. 48:3-51.               The

Board also noted that Millenium had obtained land use approvals

to   develop     the    property    for    residential          use.     Although      the

housing development had been stalled by the slow real estate

market,    the    Board       reasoned    that    treating       the    property    as    a

brownfield would be "contrary to the intent of the Solar Act and

[Energy Master Plan] in directing solar development on land that

is underutilized or difficult to develop."

       Based      on     its     findings,        the     Board        concluded     that

Millenium's land was not a brownfield for purposes of subsection

(t), but rather was farmland subject to subsection (s) of the

Act.       See   N.J.S.A.        48:3-87(s).            Consequently,      the     agency

rejected    Millenium's         attempt    to     shoehorn       its    farmland-based

application      into     a     proceeding       open    only     to    projects     that

qualified for consideration under subsection (t).3

       For the guidance of future potential applicants, the Board

stated:

            [S]olar projects proposed to be located on
            land that has been actively devoted to
            agricultural or horticultural use that is
            valued, assessed, and taxed pursuant to the

3
  The Board previously held a separate proceeding for subsection
(s) applications.     Apparently, Millenium did not submit an
application for this property as part of the Board's subsection
(s) proceeding.



                                           5                                     A-4565-13T3
            Farmland Assessment Act of 1964 at any time
            within the 10-year period prior to [July 24,
            2012] will not be eligible for being
            designated on a brownfield, . . . for
            purposes of qualifying for SRECs under
            Subsection T of the Solar Act.

The   agency       also   directed     its       staff       to   draft     regulations

reflecting its decision.

                                            II

      On   this     appeal,    the    Board's         decision     is     "entitled     to

presumptive validity."          In re N.J. Am. Water Co., 169 N.J. 181,

188   (2001)      (citation    and    internal        quotation     marks       omitted).

Pursuant to N.J.S.A. 48:2-46, this court may

            review any order of the board and . . . set
            aside such order in whole or in part when it
            clearly appears that there was no evidence
            before the board to support the same
            reasonably or that the same was without the
            jurisdiction of the board.

            [N.J.S.A. 48:2-46.]

      We    may    reverse     the    agency's         decision     only    if    it    is

"arbitrary,       capricious,      unreasonable         or    beyond      the    agency's

delegated    powers."         N.J.   Am.     Water,     supra,     169    N.J.    at   188

(citation and internal quotation marks omitted).                          With respect

to both the Board and the DEP, we review legal issues de novo,

but   we    will    ordinarily       defer       to    the    agencies'      reasonable

construction       of   statutes     they    are      charged     with    implementing.

See In re Pub. Serv. Elec. & Gas Company's Rate Unbundling, 167




                                            6                                    A-4565-13T3
N.J. 377, 384 (2001); SJC Builders, LLC v. N.J. Dep't of Envtl.

Prot., 378 N.J. Super. 50, 54 (App. Div. 2005).

     We agree with the Board that projects sited on agricultural

property valued, assessed and taxed as farmland do not qualify

as   brownfields   for   purposes       of   subsection   (t).    Absent

exceptions not relevant here, projects sited on farmland are

governed by subsection (s) of the Solar Act,              N.J.S.A. 48:3-

87(s), which by its terms specifically addresses farmland-based

solar projects.    Subsection (s) provides in pertinent part:

          [A] solar electric power generation facility
          that is not net metered or an on-site
          generation facility and which is located on
          land that has been actively devoted to
          agricultural or horticultural use that is
          valued, assessed, and taxed pursuant to the
          "Farmland Assessment Act of 1964," P.L.1964,
          c.48 (C.54:4-23.1 et seq.) at any time
          within the 10-year period prior to the
          effective date of P.L.2012, c.24, shall only
          be considered "connected to the distribution
          system" if (1) the board approves the
          facility's     designation    pursuant    to
          subsection q. of this section; or (2) (a)
          PJM issued a System Impact Study for the
          facility on or before June 30, 2011, (b) the
          facility files a notice with the board
          within 60 days of the effective date of P.L.
          2012, c. 24, indicating its intent to
          qualify under this subsection, and (c) the
          facility has been approved as "connected to
          the distribution system" by the board.

          [N.J.S.A. 48:3-87(s) (emphasis added).]

     By its unambiguous terms, the Solar Act requires farmland-

based applications to be submitted under subsection (s), unless



                                    7                            A-4565-13T3
they    are    "net    metered       or     an       on-site   generation     facility,"

N.J.S.A. 48:3-87(s), exceptions which Millenium does not claim

apply    here.        Projects    to      which       subsection    (s)    applies     must

satisfy a more stringent set of criteria than applications which

are subject to subsection (t).                   Compare N.J.S.A. 48:3-87(s), and

(q), with N.J.S.A. 48:3-87(t) ("Projects certified under this

subsection shall be considered 'connected to the distribution

system[,]' shall not require such designation by the board, and

shall    not    be    subject    to       board       review   required     pursuant    to

subsections      q.     and     r.     of    this        section.").         Millenium's

application was properly rejected, because it should have been

submitted under subsection (s), and the proceeding before the

Board    was   limited    to     applications           submitted   under     subsection

(t).

       We also agree with the Board that its construction of the

Solar Act is consistent with the State's 2011 Energy Master Plan

(EMP).        N.J. BD.   OF    PUB. UTIL., N.J. ENERGY MASTER PLAN               (2011),

http://www.nj.gov/emp/docs/pdf/2011_Final_Energy_Master_Plan.pdf.

One goal of the EMP, as reflected in the Solar Act, is to

encourage      the     construction         of        solar    energy     facilities     on

polluted former commercial and industrial land, which is not

readily usable for general commercial or residential purposes.

Id. at 107.          Thus, subsection (t) makes it relatively easy to




                                                 8                              A-4565-13T3
obtain       financial      subsidies    for     those    projects.      On    the     other

hand, as the Board's decision noted, in requiring farmland-sited

solar projects to satisfy a higher standard, the Legislature

also        acted    consistent      with        the    EMP,     which      specifically

discourages the use of agricultural land for solar projects.

See ibid.       Those legislative purposes were confirmed in a press

release issued by the Governor's Office on the day the Act was

signed.       See    Press    Release,      Office      of     the    Governor,       supra.

"[S]uch       'communications       from       the     Executive      Branch    offer      a

reliable       aid    in   determining      legislative         intent.'"       State     v.

Drury, 190 N.J. 197, 212 (2007) (quoting State v. Sutton, 132

N.J. 471, 483 (1993)).

       Accordingly, we find no basis to depart from our usual rule

of deference to an agency's reasonable construction of a statute

it     is    charged       with   implementing.           See    In    re     PSE&G     Rate

Unbundling, supra, 167 N.J. at 384; see also                             SJC Builders,

supra, 378 N.J. Super. at 54.

       Millenium's         appellate     arguments        are     without      sufficient

merit to warrant discussion beyond these comments.                              R. 2:11-

3(e)(1)(E).          Most of Millenium's brief is devoted to criticizing

the July 19, 2013 decision and the Board's and DEP's conclusion

that there was no discharge on the property.                          However, because

we conclude that the May 21, 2104 decision was correct, those




                                             9                                    A-4565-13T3
arguments    are        irrelevant.          Subsection   (s)   unambiguously

precludes a subsection (t) application for a solar project on

this property, because it is agricultural land that was valued,

assessed and taxed as farmland within the ten-year period prior

to the effective date of the Solar Act.                   See N.J.S.A. 48:3-

87(s).      Moreover,      Millenium    produced     no   evidence    that   the

property    was    "a    former   or   current    commercial    or   industrial

site."   See N.J.S.A. 48:3-51.

    Affirmed.




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