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In Re Appeal of Jersey Central Power & Light Company

A-2150-09T1 (N.J. Super. App. Div. 2011) (Unpublished)

ZONING; BOARD OF PUBLIC UTILITIES — The Board of Public Utilities, once having established that a utility company needs a proposed substation for the service, convenience, and welfare of the greater public served by the company, may overrule a local land use board’s denial of the utility company’s land use application.

A utility applied to a municipal zoning board for preliminary and site plan approval and for certain variances required for construction of an electrical substation. After sixteen hearings, the zoning board denied the application. The utility then filed a petition with the Board of Public Utilities (BPU) seeking authorization to construct the substation notwithstanding the local land use board’s denial of its application. The municipality filed an answer, and a local historic district was allowed to intervene.

The utility submitted pre-filed direct testimony from two employee-experts, while the municipality submitted the direct testimony of an individual who, himself, was a professional planner, a landscape architect, and a wetlands scientist. It also submitted the transcripts and exhibits marked in the proceedings before the municipality. The utility filed rebuttal testimony from its two employees as well as from a licensed professional planner. After a hearing, the BPU authorized the utility to construct, install, and operate the substation. It found that the utility had established that it needed the proposed substation for the service, convenience, and welfare of the greater public that served the company. Additionally, the BPU found that the utility had made good faith efforts to find the most suitable location for the substation. Further, it found that the proposed facility was in conformity with published engineering treatises which prescribe minimum distances between substation and other buildings. It ordered that the utility be permitted to construct, install, and operate the proposed substation, without regard to any local land use ordinance or regulation. The BPU also ordered that the utility coordinate with appropriate municipal officials to construct an emergency walking path that would give nearby residents an additional escape route.

The municipality appealed, but the Appellate Division affirmed the BPU’s determination, largely for the reasons that the BPU had expressed. The Court was satisfied that the BPU undertook the analysis required by New Jersey law; specifically, that the utility had shown that the proposed use was reasonably, but not absolutely or indispensably, necessary for the public service, convenience, and welfare. It found that the BPU had no obligation to defer to the municipality’s findings with regard to the proposed use because the public interest in proper regulation of public utilities transcends municipal or county lines.

The historic district argued that the BPU failed to give due consideration to the economic impact the substation would have on the value of area properties. This argument was not raised below. Regardless, mere allegations as to a decline in property values are insufficient to establish that a proposed use will adversely affect the value of properties in the community. Thus, the BPU’s determination was affirmed.

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