In re N.J. Pinelands Commission's Approval of N.J. Nat. Gas's Application
| Decision Date | 29 April 2021 |
| Docket Number | DOCKET NO. A-1005-17,DOCKET NO. A-0999-17 |
| Parties | IN THE MATTER OF THE NEW JERSEY PINELANDS COMMISSION'S APPROVAL OF NEW JERSEY NATURAL GAS'S APPLICATION (NO. 2014-0045.001) FOR THE INSTALLATION AND OPERATION OF THE SOUTHERN RELIABILITY LINK PROJECT AND THE DENIAL OF PINELANDS PRESERVATION ALLIANCE'S REQUEST FOR AN ADJUDICATORY HEARING IN THE MATTER OF THE NEW JERSEY PINELANDS COMMISSION'S APPROVAL OF NEW JERSEY NATURAL GAS'S APPLICATION (NO. 2014-0045.001) FOR THE INSTALLATION AND OPERATION OF THE SOUTHERN RELIABILITY LINK PROJECT AND THE DENIAL OF DANIEL CARUSO, PATRICIA CARUSO AND JEAN KORVATH'S REQUEST FOR AN ADJUDICATORY HEARING |
| Court | New Jersey Superior Court – Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
Before Judges Yannotti, Haas, and Natali.
On appeal from the New Jersey Pinelands Commission, Application No. 2014-0045.001.
Paul Leodori argued the cause for appellants Pinelands Preservation Alliance, Daniel Caruso, Patricia Caruso, and Jean Kovath (Paul Leodori, PC, attorneys; Amy Huber, on the briefs).
Kristina L. Miles, Deputy Attorney General, argued the cause for respondent New Jersey Pinelands Commission (Gurbir S. Grewal, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Patrick S. Woolford, Deputy Attorney General, on the briefs).
Dennis J. Krumholz argued the cause for respondent New Jersey Natural Gas Company (Riker, Danzig, Scherer, Hyland, LLP, attorneys; Dennis J. Krumholz, of counsel and on the briefs; Michael S. Kettler, on the briefs).
These two appeals, argued back-to-back and consolidated for purposes of this opinion, arise from a challenge to the decision of the Pinelands Commission (Commission) granting New Jersey Natural Gas Company (NJNG)'s proposal to construct the Southern Reliability Link (SRL), an approximate 12-mile natural gas pipeline traversing through several municipalities and a portion of the Pinelands area. Appellants, Pinelands Preservation Alliance (PPA), anenvironmental interest group, Daniel and Patricia Caruso (Carusos), and Jean Korvath (Korvath) (collectively appellants or third-party objectors), property owners living within one hundred feet of the SRL, challenge the Commission's decision denying their request for an adjudicatory hearing. They contend the Commission's: 1) refusal to permit a contested hearing before the Office of Administrative Law (OAL) was arbitrary and capricious; 2) limited procedural review violated their due process rights; and 3) failure to support its decision with competent evidence in the record warrants reversal.
We disagree with all of these arguments and affirm. The Commission properly denied appellants' requests for adjudicatory hearings as they have neither a statutory nor constitutionally protected property right to such a proceeding. Further, the Commission afforded the appellants and all members of the public with notice and an opportunity to submit oral and written comments before deciding whether to approve NJNG's SRL project and supported its decision with competent evidence in the record.
In 2015, NJNG proposed the SRL, an approximately thirty-mile, thirty-inch intrastate high-pressure natural gas transmission pipeline to service its existing customers in Burlington, Monmouth, and Ocean Counties. Only a 12.1mile portion of the SRL would cross the Pinelands Area, specifically running through Plumstead, Jackson, and Manchester Townships in Ocean County.
In April 2015, NJNG submitted a pinelands development application seeking the Commission's approval to construct and install the SRL's 12.1-mile portion in the Pinelands Area pursuant to the Pinelands Comprehensive Management Plan (CMP) Rules, N.J.A.C. 7:50-1.1 to -10.30. NJNG also filed two related petitions with the Board of Public Utilities (Board). NJNG later revised the SRL's proposed route and submitted an amended application to the Commission and amended petitions to the Board.
The Commission's staff reviewed NJNG's amended application under the CMP's coordinated permitting process, N.J.A.C. 7:50-4.81 to -4.85. The staff issued a "certificate of filing" in December 2015, finding the SRL project consistent with the CMP's minimum standards. The Executive Director then submitted a letter to the Board dated March 10, 2016, stating that the project remained consistent with the CMP.
We subsequently decided In re Petition of South Jersey Gas Co., (SJG) 447 N.J. Super. 459, 465 (App. Div. 2016), in which various parties challenged the Executive Director's approval of a similar pipeline proposed by South Jersey Gas that would run through the Pinelands. The court held, in part, that only theCommission, not its Executive Director or staff, had "the authority to render final decisions on CMP compliance . . . in the coordinated permitting process." Id. at 477. Consequently, we remanded review of South Jersey Gas's application to the Commission with specific instructions on conducting further proceedings. Id. at 478-79, 484.
Following SJG, the Commission sought remands in related pending appeals addressing the SRL so it could review NJNG's amended application under the guidelines set forth by the court. We granted the motions, dismissed the SRL appeals, and instructed:
On remand, the Commission shall determine whether to render its decision based on the record before the Board of Public Utilities or to allow the parties to present additional evidence. The Commission shall also determine whether to refer the matter to the Office of Administrative Law for an evidentiary hearing before an Administrative Law Judge [(ALJ)].
On June 9, 2017, the Commission adopted Resolution No. PC4-17-10, outlining its new process for reviewing whether NJNG's SRL project was consistent with the CMP's minimum standards. This resolution announced in part:
Upon passage of PC4-17-10, the Commission posted notice on its website that the public could submit oral comments on NJNG's pinelands application ata special meeting on July 26, 2017, and written comments until the close of business on August 2, 2017. The Commission held the special meeting as scheduled; forty-five participants spoke, including appellants, and the Commission received over 1300 written comments.
After considering those submissions and NJNG's amended application, the Commission staff determined that the portion of the SRL through the Pinelands Area was consistent with the CMP, and the Executive Director submitted a report to the Commission on August 29, 2017, recommending approval with conditions. At the Commission's meeting, the Executive Director reviewed the public's comments, the relevant CMP, and permitted use standards governing each affected Pinelands Management Area.
On September 14, 2017, as memorialized in Resolution No. PC4-17-27, the Commission voted and approved NJNG's pinelands application with conditions for the SRL's route through the Pinelands Area. The Commission declared that it had reviewed the public's comments, the record, and the Executive Director's recommendation report, and had found "ample evidence" demonstrating that the proposed installation with the recommended conditions conformed to the minimum CMP standards.
On September 10, and 12, 2017, the Carusos and Kovath submitted to the Commission requests for an adjudicatory hearing before the OAL "in response to the Executive Director's report" recommending approval of NJNG's pinelands application.
The Carusos wrote as "interest[ed] parties," stating that they owned property in Wrightstown, which was "directly along the 'proposed pipeline route.'" They first claimed the SRL violated the CMP and was contrary to the Executive Director's findings because: 1) it was not genuinely associated with the function of the Joint Base McGuire-Dix-Lakehurst (Joint Base or JB-MDL), which was located within the Military and Federal Installation Area, one of the Pinelands Management Areas, N.J.A.C. 7:50-5.12; 2) was not routed through the less sensitive Pinelands Protection Area; and 3) it failed to meet the CMP's wetlands protection standards.
They further asserted that the Executive Director's approval recommendation "would inflict direct harm to [their] property and [their] family." They claimed that there was "approximately 15 feet" between their property and...
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