The Appellate Division of the New Jersey Superior Court has denied a challenge raised by a citizens’ action group over the construction of a Jersey Central Power & Light (JCP&L) substation on environmentally sensitive land in Tewksbury Township. The court concluded that the Department of Environmental Protection (DEP) had reasonable grounds for approving the construction.
The Facts of the Case
In the Matter of New Jersey Department of Environmental Protection Conditional Highlands Applicability Determination, Program Interest No. 435434 centers on a 230 kV/12.5 kV electrical substation constructed by JCP&L in Tewksbury Township. The substation, which was built to address increased electricity demand, is located on property that lies within JCP&L’s existing right-of-way, under the transmission lines that were in place carrying 230 kV of electricity from Chester to Glen Gardner. The property is also within a residential zone in Tewksbury’s Lower Fairmount National Historic District, as well as in the Preservation Area established by the Highlands Water Protection and Planning Act (the Highlands Act), N.J.S.A. 13:20-1 to-35; N.J.S.A. 13:20-7(b).
The Friends of Fairmount Historic District (FFHD) challenged the final agency decision of DEP to grant JCP&L an exemption from the Highlands Act for the substation. DEP relied on N.J.S.A. 13:20-28(a)(11), which provides an exemption “from the provisions of this act, the regional master plan, any rules or regulations adopted by the Department of Environmental Protection pursuant to this act, or any . . . for the routine maintenance and operations, rehabilitation, preservation, reconstruction, repair, or upgrade of public utility lines, rights of way, or systems, by a public utility, provided that the activity is consistent with the goals and purposes of this act[.]” To minimize the environmental impact, DEP imposed a number of conditions on the substation construction.
On appeal, FFHD specifically maintained that DEP’s final decision was wrong as a matter of law because the substation was not a “routine upgrade” of a public utility system. In the alternative, FFHD argued that the decision was arbitrary, capricious, and unreasonable.
The Court’s Decision
The Appellate Division ultimately rejected the argument that the substation construction not merely a “routine upgrade” within the meaning of N.J.S.A. 13:20-28(a)(11) and that the project is not consistent with the goals and purposes of the Highlands Act.
The court further concluded that the project is consistent with the goals of the Act to “preserve farmland and historic sites and other historic resources[,]” and “prohibit or limit to the maximum extent possible construction or development which is incompatible with preservation of this unique area.” As the panel explained, “even if the construction were deemed to be “incompatible with preservation,” the objective does not require outright prohibition. By its language, the objective is also served by “limit[ing the activity] to the maximum extent possible[.]”
The court also noted that the DEP’s final Highlands Applicability Decision explicitly “does not authorize any extension of new public infrastructure in the Highlands Preservation Area” and “is limited to the replacement or rehabilitation or upgrade of existing infrastructure[.]” Accordingly, it was “carefully circumscribed to meet the failed electricity needs of residents in the Preservation Area while ‘limit[ing] to the maximum extent possible’ the construction necessary for that objective.”
For more information about this case or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.