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Public Service Electric and Gas Company v. New Jersey Power Line Neighbors Coalition

A-6439-08T1 (N.J. Super. App. Div. 2010) (Unpublished)

EASEMENTS; DEEDS — A governmental regulation that specifically says that it is not applicable in situations where application of the regulation would violate “pre-existing land rights,” such an exception is not limited to only such land rights as are recorded unless the regulation itself so specifies.

A utility company acquired 150-foot easements on numerous properties within a municipality. Each granted a right-of-way to construct and maintain high voltage electrical power lines. Under the easements, the utility company had the right to trim, cut, and remove trees, as well as to remove buildings and other structures located within them. The utility company began cutting trees and removing improvements and the affected residents formed a coalition and complained to the municipality. As a result of their complaints, the municipality issued a stop-work order preventing the utility company from removing trees and sheds. The utility company sued.

The coalition and the utility company reached a settlement, but the utility company wanted it to bind all property owners within its easement area, and not just coalition members. Notice of the settlement was given to all residents within the easement area and a fairness hearing was held. A settlement order was approved that allowed affected homeowners to retain many of the improvements and trees located within the utility company’s easement. However, it required the homeowners to obtain prior written approval from the utility company, and from the municipality, before installing new structures or modifying existing structures within the areas. It also allowed the utility company to deny consent to a homeowner if the denial was related to the safety of the residents or the utility’s employees or equipment, the operational needs of the utility, or transmission system reliability. The consent order permitted the utility company to perform tree trimming and topping in accordance with the requirements of the National Electric Safety Code, OSHA, and other nationally recognized regulations, whether present or future. It also provided a process for notifying homeowners of non-emergent tree and vegetation maintenance.

Several years after the settlement and consent order, the U.S. Department of Energy issued a report requiring states to create new regulations for vegetation management near power lines. Thereafter, New Jersey’s Board of Public Utilities (BPU) promulgated new regulations for managing vegetation and trees growing near power lines. The utility adopted a new vegetation management program to comply with BPU’s new regulations in order to avoid $100 per day fines for noncompliance. The coalition filed a motion to stay the utility’s new vegetation management program because it threatened the destruction of trees, landscaping, and improvements on their properties. The lower court denied the coalition’s motion, but entered a temporary stay to maintain the status quo. The lower court, after extensive fact finding, concluded that the current conditions violated both existing and proposed BPU regulations and threatened to interfere with the power lines. It found that the existing conditions created an imminent danger of a power outage and warranted emergent action by the utility company.

The lower court also noted that the consent order conferred upon the homeowners a form of “land right” that could be exempted from BPU’s regulations. However, it found that since the consent order allowed the utility company to trim trees and remove improvements in accordance with “nationally recognized regulations,” the utility company was permitted to trim trees in order to comply with BPU regulations without violating the consent order.
The pivotal question for the Appellate Division in the appeal that followed was whether the consent order insulated the homeowners from complying with BPU’s vegetation management regulations. The Court noted that the BPU regulations contained an exemption for “pre-existing written land rights” affecting a utility’s right of way. The exception referred to rights under a right of way, easement, deed, or by way of other written land rights, if executed before January 1, 2007. The Court noted that the regulations did not specify what constituted “other written land rights” that would exempt the homeowners from the BPU regulations, however that did not necessarily mean a document conferring land rights needed to be recorded in the public land records. The Court agreed that the consent order did confer land rights, noting that if the regulation required a recording to confer such rights, the exemption would have applied to “other recorded land rights.” However, the Court remanded the matter back to the lower court to determine whether BPU’s regulations were in accord with “nationally recognized standards” as provided for in the consent order, and whether or not the exemption for “other written land rights” applied to some, but not all, of the BPU’s regulations.

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