In the Matter of the Solar Transition Pursuant to L. 2018, C. 17 – Application for Certification of Solar Facility, Etc.

NOT FOR PUBLICATION WITHOUT THE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.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3975-23

IN THE MATTER OF THE SOLAR

TRANSITION PURSUANT TO L.

2018, C. 17 – APPLICATION FOR

CERTIFICATION OF SOLAR

FACILITY AS ELIGIBLE FOR

TRECS PURSUANT TO

SUBSECTION (T) OF THE SOLAR

ACT OF 2012 – REEDER

PROPERTY SOLAR FARM, LLC,

BLOCK 7, LOT 11.

_____________________________

Argued October 29, 2025 – Decided December 29, 2025

Before Judges Gummer, Paganelli and Vanek.

On appeal from the New Jersey Board of Public

Utilities, Docket No. QO21081095.

Michael H. Freeman argued the cause for appellant

CEP Renewables, LLC (Genova Burns, LLC, attorneys;

Kenneth J. Sheehan, of counsel and on the briefs).

Jordan K. Mitchell, Deputy Attorney General, argued

the cause for respondent New Jersey Board of Public

Utilities (Matthew J. Platkin, Attorney General,

attorney; Janet Greenberg Cohen, Assistant Attorney

General, of counsel; Jordan K. Mitchell, on the brief).

Andrew M. Kuntz, Assistant Deputy Rate Counsel,

argued the cause for respondent New Jersey Division of

Rate Counsel (Brian O. Lipman, Director, attorney;

Megan C. Lupo, Assistant Deputy Rate Counsel, on the

brief).

PER CURIAM

CEP Renewables, LLC d/b/a Reeder Property Solar Farm, LLC (CEP)

appeals from a final agency decision of the Board of Public Utilities (the BPU)

denying its application for conditional certification of a solar energy project

seeking Transitional Renewable Energy Certificates (TRECs) under the

Transition Incentive (TI) program pursuant to N.J.S.A. 48:3-87(t). We affirm.

I.

We glean the facts and procedural history from the record. On August 22,

2021, CEP applied under N.J.S.A. 48:3-87(t) (subsection (t)) of the Solar Act of

2012, N.J.S.A. 48:3-51 to -87 (the Solar Act) for conditional certification of the

Reeder Property Solar Farm in Harmony Township (the Reeder Site) in order to

receive TRECs under the TI program. In its application, CEP described the

Reeder Site as a former sand and gravel mining location that was reclaimed in

the early 1990s. CEP asserted soil sample data demonstrated levels that

exceeded permissible New Jersey Department of Environmental Protection

A-3975-23

2

(DEP) contamination and remediation standards. CEP requested the Reeder Site

be deemed a brownfield 1 eligible for solar incentives under subsection (t).

CEP acknowledged that the Reeder Site had been tax assessed as

farmland. However, CEP maintained the Reeder Site had not been utilized as

farmland from 2002 to 2021 because the "soils d[id] not support a sustainable

agricultural crop." In the days before CEP filed its application the Harmony

Township governing body adopted a resolution, at CEP's request, directing the

municipal tax assessor to retroactively change the Township's records to reflect

the Reeder Site's assessment was "industrial use" instead of farmland from 2002

to 2021.

The BPU consulted with the DEP to determine whether the Reeder Site

was a brownfield that was eligible to receive TI solar incentives. After its

evaluation, the DEP issued an advisory memorandum concluding the Reeder

Site did not qualify as a brownfield because the land "ha[d] been actively

devoted to agricultural or horticultural use that is valued, assessed, and taxed

pursuant to the Farmland Assessment Act of 1964 [(FAA), N.J.S.A. 54:4-23.1]

. . . within the ten . . . year period prior to July 24, 2012" (the Farmland

1

A "brownfield" is "any former or current commercial or industrial site that is

currently vacant or underutilized and on which there has been, or there is

suspected to have been, a discharge of a contaminant." N.J.S.A. 48:3-51.

A-3975-23

3

Lookback). The DEP found:

Current and historical aerial imagery . . . indicate[d] the

location of the proposed . . . solar array, [the Reeder

Site], is and has been devoted to agriculture or

horticulture use, and hence taxed as such by the local

tax assessor. The 2012 aerial image of the property

shows the property being actively farmed as hay bales

are visible. The metadata for the 2012 aerial imagery

was captured . . . [from March 14, 2012 to April 16,

2012].

Additionally, consultation with [the] State Agriculture

Development Committee staff revealed that the

location of the proposed solar array . . . is identified in

the September 2021 Harmony Township Draft

Comprehensive Farm Preservation Plan Update as

being a farm targeted for preservation. . . .

The DEP advised that the Reeder Site had been actively "devoted to agricultural

or horticultural use" during the Farmland Lookback.

On June 27, 2024, the BPU denied CEP's subsection (t) application, based

on its determination that N.J.S.A 48:3-87(s) (subsection (s)) imposes additional

restrictions "on land that has been actively devoted to agricultural or

horticultural use that is valued, assessed, and taxed pursuant to the [FAA]" at

any time within the Farmland Lookback. The BPU found the entirety of the

Reeder Site was qualified farmland during the Farmland Lookback based on

property tax assessments, prior certified annual farmland applications

evidencing agricultural production, photographic evidence of active farming on

A-3975-23

4

the entire site during March and April of 2012, and confirmation from the DEP

that the land was being used for agriculture and was targeted for preservation.

In denying CEP's application, the BPU relied on In re Implementation of L.

2012, c. 24, 443 N.J. Super. 73 (App. Div. 2015) (Millenium), in which we

affirmed the denial of a subsection (t) application that was subject to subsection

(s).

CEP sought reconsideration of the BPU's denial. Because the BPU did

"not grant[] or otherwise expressly act[] upon" the reconsideration motion, it

was deemed denied pursuant to N.J.A.C. 14:1-8.7(c).

II.

N.J.S.A. 48:2-46 vests the Appellate Division with jurisdiction to review

BPU orders. Because "the BPU's power to regulate utilities is broad," In re

Centex Homes, LLC, 411 N.J. Super. 244, 254 (App. Div. 2009), its "rulings are

entitled to presumptive validity." In re N.J. Am. Water Co., 169 N.J. 181, 188

(2001) (quoting In re Petition of Jersey Cent. Power & Light Co., 85 N.J. 520,

527 (1981)). We will not disturb a BPU determination unless it was "arbitrary,

capricious, unreasonable, or beyond the agency's delegated powers." N.J. Am.

Water Co., 169 N.J. at 188 (quoting In re Amend. of N.J.A.C. 8:31B-3.31, 119

N.J. 531, 544 (1990)).

A-3975-23

5

Our review of a BPU decision, as with all administrative agency

determinations, is deferential and limited. Bd. of Educ. of Sparta v. M.N., 258

N.J. 333, 342 (2024). We focus on:

(1) whether the agency's action violates express or

implied legislative policies, that is, did the agency

follow the law;

(2) whether the record contains substantial evidence to

support the findings on which the agency based its

action; and

(3) whether in applying the legislative policies to the

facts, the agency clearly erred in reaching a conclusion

that could not reasonably have been made on a showing

of the relevant factors.

[Allstars Auto. Grp. v. N.J. Motor Vehicle Comm'n,

234 N.J. 150, 157 (2018) (quoting In re Stallworth, 208

N.J. 182, 194 (2011)).]

Although we are not bound by an agency's statutory interpretation, "[w]e will

ordinarily defer to an agency's reasonable construction of statutes it is charged

with implementing." Platkin ex rel. Kopleton v. Kizito, 481 N.J. Super. 587,

594 (App. Div. 2025) (quoting In re Competitive Solar Incentive Program, 478

N.J. Super. 341, 349 (App. Div. 2024)). The challenger of an administrative

action bears the burden of demonstrating that it was arbitrary, capricious, or

unreasonable. A.B. v. Div. of Med. Assistance & Health Servs., 407 N.J. Super.

330, 339 (App. Div. 2009).

A-3975-23

6

We are bound to apply clearly defined statutory terms. State v. S.B., 230

N.J. 62, 68 (2017). "It is a cardinal rule of statutory construction that full effect

should be given . . . to every word of a statute. We cannot assume that the

Legislature used meaningless language." McCann v. Clerk of City of Jersey

City, 167 N.J. 311, 321 (2001) (quoting Gabin v. Skyline Cabana Club, 54 N.J.

550, 555 (1969)). "Because we do not assume that the Legislature used any

unnecessary or meaningless language . . . we read a statute in its entirety and

construe 'each part or section . . . in connection with every other part or section

to provide a harmonious whole.'" Patel v. N.J. Motor Vehicle Comm'n, 200 N.J.

413, 418-19 (2009) (quoting Bedford v. Riello, 195 N.J. 210, 224 (2008)).

III.

The central issue on appeal invokes principles of statutory construction—

requiring us to determine whether the BPU's denial of CEP's subsection (t)

application was arbitrary, capricious or unreasonable because, as CEP argues,

the BPU erred in applying subsection (s) to the Reeder Site as farmland.

Unconvinced CEP has demonstrated the BPU acted arbitrarily, capriciously, or

unreasonably in denying the application, we affirm.

A.

A-3975-23

7

To provide context, we briefly reference the governing statutory and

regulatory framework. The Clean Energy Act (CEA), P.L. 2018 c. 17, was

enacted on May 23, 2018, as an amendment to the Solar Act. The CEA charged

the BPU with closing the Solar Renewable Energy Certificate Registration

Program (SRP), which was the solar incentive program in place at that time;

launching an interim incentive program; and transitioning to the Successor Solar

Incentive (SuSI) program. See N.J.S.A. 48:3-87(d)(3).

On December 6, 2019, the BPU launched the TI program, which was

"designed to provide a bridge between the [SRP] and . . . [the SuSI program]

under development." N.J.A.C. 14:8-10.1. Under the TI program, the BPU

permitted developers to submit a complete registration package prior to the

opening of the SuSI program to receive fixed solar energy incentives. N.J.A.C.

14:8-10.4(f).

Subsections (s) and (t) impose different criteria to distinct types of

property for which solar developers seek TRECs. Solar developers can apply

under subsection (t) to be deemed a grid-supply solar project and to receive

TRECs for "solar electric power generation facilit[ies] . . . on a brownfield, on

an area of historic fill[,] or on a properly closed sanitary landfill facility."

N.J.S.A. 48:3-87(t)(1). However, under subsection (s), "land that has been

A-3975-23

8

actively devoted to agricultural or horticultural use that is valued, assessed, and

taxed pursuant to the [FAA, N.J.S.A. 54:4-23.1 to -23.23,] at any time within

the [ten]-year period prior to the effective date of [the Solar Act]" must meet

additional requirements to be deemed "connected to the distribution system" and

eligible for TRECs. N.J.S.A. 48:3-87(s); see also N.J.A.C. 14:8-1.2 (defining

"connected to the distribution system").

The applicability of subsection (s) is predicated on a determination that

property was farmland, as defined by the FAA, during the Farmland Lookback.

The FAA defines farmland as real property devoted to statutorily defined plant

and animal production, N.J.S.A. 54:4-23.3, and that meets specified financial

requirements tied to agricultural or horticultural product sales, N.J.S.A. 54:4 -

23.5.

B.

Guided by well-established principles of statutory construction and our

decision in Millenium, we address whether the BPU erred in interpreting

N.J.S.A. 48:3-87 to conclude subsection (s) applied and, therefore, CEP's

subsection (t) application had to be denied. CEP posits the site is currently a

brownfield, which makes it eligible for TRECs under subsection (t), regardless

A-3975-23

9

of whether the Reeder Site was deemed farmland under subsection (s) during

the Farmland Lookback.

We considered the applicability of subsections (s) and (t) in Millenium.

We affirmed the BPU's denial of a subsection (t) application in part because the

property at issue was farmland under subsection (s). 443 N.J. Super. at 78-79.

There, the applicant sought financial incentives for a proposed solar power

project under subsection (t) by claiming that qualified farmland was a

brownfield due to soil contamination. Id. at 76. We concluded Millenium's

application could not be considered under subsection (t) and, instead, was

subject to subsection (s) because it concerned a proposed solar project on

property subject to the Farmland Lookback. Id. at 79. We determined:

By its unambiguous terms, the Solar Act requires

farmland-based applications to be submitted under

subsection (s), unless they are "net metered or an on-

site generation facility," N.J.S.A. 48:3-87(s),

exceptions which Millenium does not claim apply here.

Projects to which subsection (s) applies must satisfy a

more stringent set of criteria than applications which

are subject to subsection (t).

[Id. at 78-79.]

In affirming, we concluded the BPU's decision was consistent with both

the statutory language and legislative intent of the Solar Act and state energy

policies, which were designed to encourage solar projects on contaminated or

A-3975-23

10

underutilized non-farmland sites, while "specifically discourag[ing] the use of

agricultural land for solar projects." Id. at 79.

Our holding in Millenium is controlling and directly on point. Here, there

was ample evidence before the BPU that established the Reeder Site was actively

used for agriculture during the Farmland Lookback as defined in subsection (s).

CEP does not dispute this factual determination. We are unpersuaded by CEP's

attempt to distinguish Millenium by asserting the Reeder Site currently qualifies

as a brownfield under subsection (t) and, in Millenium, no such proofs were

adduced. Our determination in Millenium that the BPU properly considered

subsection (s) in denying the subsection (t) application was independent of our

secondary determination that the record did not contain evidence the property

was a brownfield under subsection (t). See id. at 78-80.

CEP does not cite to any statutory language or decisional law to support

its argument that the Solar Act contains an inherent conflict because subsection

(s) evaluates property use retroactively and subsection (t) does not. CEP posits

the Legislature did not intend for property presently identifiable as a brownfield

to be ineligible under subsection (t) only because it was farmland as defined in

subsection (s). The plain statutory language and principles of statutory

construction do not support CEP's argument.

A-3975-23

11

CEP requests that we ignore the unambiguous statutory language of

subsection (s) and permit its application to proceed under subsection (t).

However, subsection (s) and subsection (t) projects are subject to different

criteria. See Millenium, 443 N.J. Super. at 79 ("[p]rojects to which subsection

(s) applies must satisfy a more stringent set of criteria" to be deemed connected

to the distribution system, while "subsection (t) makes it relatively easy."). To

permit CEP to elect to proceed under subsection (t), thereby avoiding the

additional conditions under subsection (s), would frustrate the purpose of the

latter and render statutory language superfluous. Because we are bound to give

effect to unambiguous statutory language and to construe statutory provisions

harmoniously, we conclude CEP must meet the requirements applicable to

farmland under subsection (s), even though the Reeder Site might otherwise

meet the criteria of a brownfield under subsection (t) at the time of the

application.

CEP's questioning of the propriety of condemning a property to inutility

because of its farmland assessment status more than a decade ago is an issue for

the Legislature, not for this court. Our role is limited to review of the BPU's

decision under the statute as written.

A-3975-23

12

We are unconvinced that the BPU’s application of the subsection (s)

requirements to its evaluation of CEP's subsection (t) application constitutes

improper rulemaking. Subsection (s) applies to CEP's application by virtue of

the statute itself, rather than through improper rulemaking.

C.

We are also unpersuaded that reversal is warranted simply because of the

BPU's alleged delay in denying CEP's application and its failure to decide the

reconsideration motion. CEP has not cited to any supporting statutory or

regulatory law and has not demonstrated reversal is merited under its "turn

square corners" argument. F.M.C. Stores Co. v. Borough of Morris Plains, 100

N.J. 418, 426-27 (1985) (quoting Gruber v. Mayor & Twp. Comm. of Raritan

Twp., 73 N.J. Super. 120, 127 (App. Div. 1962)).

We reject CEP's argument that the BPU arbitrarily departed from its

reasoning in a prior decision. That decision is unpublished, see R. 1:36-3,

factually distinguishable and no longer relevant since CEP does not dispute the

Reeder Site was farmland as defined in subsection (s).

To the extent we have not otherwise addressed CEP's arguments, it is

because they do not merit discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

A-3975-23

13