Int'l Bhd. of Elec. Workers Local 400, James Berry v. Borough of Tinton Falls
| Decision Date | 15 June 2021 |
| Docket Number | DOCKET NO. A-3565-19 |
| Citation | 257 A.3d 674,468 N.J.Super. 214 |
| Parties | INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL 400, James Berry, and Joseph Volpe, Plaintiffs-Appellants, v. BOROUGH OF TINTON FALLS, New Jersey Department of Community Affairs, Cary Costa, in his official capacity as Construction Official and Building Sub-Code Official of the Borough of Tinton Falls, and Scott Borsos, in his official capacity as Construction Official of the Department of Community Affairs, Defendants-Respondents. CS Energy, LLC, and CS Energy Devco, LLC, Intervenors-Respondents. |
| Court | New Jersey Superior Court — Appellate Division |
Matthew B. Madsen argued the cause for appellants (O'Brien, Belland & Bushinsky, LLC, attorneys; Mark E. Belland, Moorestown, and Matthew B. Madsen, on the briefs).
Scott W. Kenneally argued the cause for respondents Borough of Tinton Falls and Cary Costa (Starkey, Kelly, Kenneally, Cunningham & Turnbach, attorneys; Scott W. Kenneally, Toms River, on the briefs).
Patrick D. Tobia argued the cause for respondents New Jersey Department of Community Affairs and Scott Borsos (Gordon Rees Scully Mansukhani, LLP, attorneys; Patrick D. Tobia, Florham Park, of counsel and on the briefs; Izik L. Gutkin, on the brief).
Laura M. Kessler argued the cause for intervenors-respondents (Sills Cummis & Gross, PC, attorneys; Joshua N. Howley and Laura M. Kessler, Newark, of counsel and on the briefs).
Before Judges Sabatino, Currier and Gooden Brown.
The opinion of the court was delivered by
CURRIER, J.A.D.
This case arises out of the development of a solar energy power plant on land leased by private parties from the United States Department of the Navy at Naval Weapons Station Earle (NWS Earle). Because plaintiffs1 did not sue the Navy or the United States and the NWS Earle is located in a federal enclave, the trial court granted defendants' motions to dismiss under Rule 4:6-2(a) and (e) for lack of jurisdiction and for failure to state a claim and for failure to join an indispensable party, Rule 4:6-2(f). We affirm.
NWS Earle is comprised of over 10,000 acres of land in Monmouth County. It has been under exclusive federal jurisdiction since 1947.
Several years ago, the Navy issued a request for proposal for the lease of land on NWS Earle for the generation and distribution of renewable energy to enhance the federal government's energy security position. This portion of land is located in Tinton Falls.
Conti Enterprises submitted a bid and was awarded a thirty-seven-year lease by the Navy in 2017 to complete construction and manage the solar field. The lease was signed by Ben Moreell Solar Farm, LLC, (a subsidiary of Conti) and a representative of the United States government.
Moreell subsequently executed a contract with CS Energy, LLC, to develop, design, and build the solar energy project. According to the certification of Eric Millard, the Chief Commercial Officer of CS Energy, the Navy was "heavily involved" in the construction project and the "Navy's oversight and approval was required for each stage of the Project, ... including ... holding weekly meetings with CS Energy regarding the Project." Millard stated the Navy approved the project schedule, health and safety plans, site plans, and environmental protection plans. In addition, the Navy received final site plan approvals from the Naval Ordnance Safety and Security Activity and Department of Defense Explosive Safety Board.
CS Energy contracted with Huen Electric New Jersey, Inc., (Huen Electric) to perform the electrical installation of the solar panels, which took place over several weeks and was completed on December 20, 2019. The majority of the electricians working on the project were members of plaintiff International Brotherhood of Electrical Workers Local 400. Millard stated the work entailed "connecting more than 70,000 solar panels to each other and to power lines leading to the electrical grid through several other pieces of standard electrical equipment, as well as commissioning the entire system to ensure the solar project functions properly and safely."
According to Millard, Huen Electric "performed daily safety checks to ensure the system was operating safely and correctly and to ensure that all electrical wiring, terminations, and connections were installed properly." The project has been connected to the grid and fully operational since December 2019.
Steven Lawrence, Director of Engineering for CS Energy, supervised the engineering and commission of the solar project. He advised that after Huen Electric completed its work and safety inspections, CS Energy hired several independent companies to perform testing and commissioning on the various components of the electrical system.
One company, QE Solar, LLC, performed a "highly specialized test specific to the solar industry." The test did not detect any improper installation of the solar panel wiring.
Lastly, before the solar panel system could be connected to the power grid, it underwent extensive testing by Jersey Central Power & Light (JCP&L). The project passed all of the safety tests and JCP&L approved it for full operation in December 2019. Lawrence stated CS Energy did not receive any reports from plaintiff's workers regarding any safety issues with the electrical installation of the solar panels.
Of course, before the electrical work began on the solar panels, the panels had to be put together. The mechanical installation phase entailed inserting and bolting the panels onto metal frames. This work was performed by members of New Jersey Laborers Union, Local 472. In his certification, Millard advised that CS Energy did not hire Huen Electric or any other IBEW contractor to perform the mechanical installation "because their bids for [that phase] of the Project were non-competitive." IBEW was informed of this decision in early September 2019.
On September 20, 2019, IBEW wrote a letter to Cary Costa, the Construction Official of the Borough of Tinton Falls. In that letter, IBEW advised Costa that CS Energy intended to perform work on the solar project without obtaining the required permits. The letter stated the failure to acquire a permit "raises serious concerns of safety regarding the project, its workers and the general public." IBEW contended the municipality was responsible for the issuance of permits and conducting inspections.
CS Energy responded to IBEW's letter, informing Costa that CS Energy was not required to obtain a permit for the project because it was located on NWS Earle. The letter advised that under the United States Constitution and the federal enclave doctrine, state laws did not apply to federal territory. The federal government had the exclusive right to regulate its properties.
CS Energy further advised that Huen Electric possessed a business permit and electrical license and was "performing the construction work in accordance with applicable codes and licensing requirements." Because the Navy was exercising supervisory authority over the electrical work, it was responsible for approving the installation of equipment and infrastructure.
IBEW continued to assert the municipality was responsible for permitting. In response, a representative of the Department of Community Affairs (DCA) wrote an email to both Costa and IBEW, informing them that the solar panel project was subject to federal jurisdiction and not within the jurisdiction of the Borough of Tinton Falls or the municipality's Uniform Construction Code.
On November 8, 2019, IBEW filed a Verified Complaint in Lieu of Prerogative Writ and Order to Show Cause (OTSC) in the Law Division, naming the DCA, the Borough of Tinton Falls, as well as Cary Costa and Scott Borsos2 , both in their official capacities, as defendants. Plaintiff did not name the United States, Moreell, or CS Energy as defendants.
The complaint alleged that Tinton Falls had not exercised jurisdiction over the project and had "disavowed any responsibility for any work on the Project and/or concerning the Project's compliance with" relevant laws. The municipality's failure to enforce the requirement for "an electrical permit from the New Jersey Board of Electrical Contractors" allegedly "created a serious health and safety concern for [IBEW members] performing work on the Project, ... as well as local residents and taxpayers." And, the complaint alleged that the "failure to issue a stop construction order until the requirements of the New Jersey Electrical Contractors Licensing Act of 1962[3 ] are met will cause serious and irreparable harm to [IBEW members] ...."
Plaintiff sought a declaratory judgment that the specified work was being performed in violation of N.J.S.A. 45:5A-1, a preliminary injunction including a stop construction order, enforcement of all local building and permitting codes, and an award of attorney's fees plus costs and interest.
The DCA and Borough moved to dismiss the complaint. After learning of the lawsuit from a third party, CS Energy moved to intervene in the action. CS Energy also moved to dismiss the complaint and opposed the OTSC. At the time of oral argument on the motions and OTSC, the solar facility had been operational for more than a month. Plaintiffs' workers' last day on the site was January 3, 2020.
Defendants and CS Energy argued the court was required to dismiss the OTSC and verified complaint because plaintiff had not joined the federal government (or the Navy) as necessary parties, the trial court lacked jurisdiction over the matter because the work was performed in a federal enclave, and the matter was moot because the construction was complete, rendering the request for a stop work order meaningless.
Following the arguments on January 24, 2020, Judge Joseph P. Quinn granted CS Energy's motion to intervene. In an oral decision, the judge denied the OTSC and granted defendants' motions to dismiss the complaint. Judge Quinn found the action against the DCA belonged before this court as it...
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