NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-1685-15T1

 A-2705-15T1

 A-2706-15T1 

IN THE MATTER OF THE PETITION

OF SOUTH JERSEY GAS COMPANY FOR

A DETERMINATION PURSUANT TO THE

PROVISIONS OF N.J.S.A. 40:55D-19.

IN THE MATTER OF THE PETITION

OF SOUTH JERSEY GAS COMPANY FOR

A CONSISTENCY DETERMINATION FOR

A PROPOSED NATURAL GAS PIPELINE.

____________________________________________

Argued October 11, 2016 – Decided

Before Judges Yannotti, Fasciale and Gilson.

On appeal from the Board of Public Utilities, 

No. GO13111049, and from the Executive 

Director of the Pinelands Commission, 

Application No. 2012-0056.001.

Mariel R. Bronen of the New York bar, admitted 

pro hac vice, argued the cause for appellant 

Pinelands Preservation Alliance (Dechert LLP, 

attorneys; Ms. Bronen, George G. Gordon and 

Roxanne R. Wright, on the brief).

Renée Steinhagen argued the cause for 

appellants New Jersey Sierra Club and 

Environment New Jersey (New Jersey Appleseed 

Public Interest Law Center, attorneys; Ms. 

Steinhagen, on the brief).

Ted Nissly (Fried, Frank, Harris, Shriver &

Jacobson LLP) of the Washington, D.C. bar, 

admitted pro hac vice, argued the cause for 

amici curiae Brendan T. Byrne, James J. 

Florio, and Christine Todd Whitman (Mr. Nissly

November 7, 2016

APPROVED FOR PUBLICATION

November 7, 2016

APPELLATE DIVISION
2 A-1685-15T1

and Cole Schotz, P.C., attorneys; Christopher 

P. Massaro and Mark J. Pesce, of counsel and 

on the brief; Mr. Nissly, Douglas Baruch

(Fried, Frank, Harris, Shriver & Jacobson LLP) 

of the Washington, D.C. bar, admitted pro hac 

vice, and Mary Elizabeth Phipps (Fried, Frank, 

Harris, Shriver & Jacobson LLP) of the New 

York bar, admitted pro hac vice, on the 

brief).

Caroline Vachier, Deputy Attorney General, 

argued the cause for respondents New Jersey 

Board of Public Utilities and New Jersey 

Pinelands Commission (Christopher S. Porrino, 

Attorney General, attorney; Melissa H. Raksa, 

Assistant Attorney General, of counsel; Ms. 

Vachier, Helene P. Chudzik, Geoffrey R. 

Gersten and Timothy P. Malone, Deputy 

Attorneys General, on the brief).

Ira G. Megdal argued the cause for respondent 

South Jersey Gas Company (Cozen O'Connor, 

P.C., attorneys; Mr. Megdal, Peter J. Fontaine 

and Mark A. Lazaroff, on the brief).

John G. Valeri, Jr., argued the cause for 

respondent-intervenor R.C. Cape May Holdings, 

L.L.C. (Chiesa Shahinian & Giantomasi, P.C., 

attorneys; Mr. Valeri and Michael K. Plumb, 

on the brief).

James W. Glassen, Assistant Deputy Rate 

Counsel, argued the cause for respondent 

Division of Rate Counsel (Stephanie A. Brand, 

Director, New Jersey Division of Rate Counsel, 

attorney; Mr. Glassen, on the brief).

The opinion of the court was delivered by

YANNOTTI, P.J.A.D. 

These appeals arise from a proposal by South Jersey Gas 

Company (SJG) to construct a natural gas pipeline through several 
3 A-1685-15T1

municipalities in the Pinelands Area. On December 14, 2015, Nancy 

Wittenberg, Executive Director of the Pinelands Commission 

(Commission), issued a letter finding that SJG's proposed pipeline 

was consistent with the minimum standards of the Pinelands 

Comprehensive Management Plan (CMP), N.J.A.C. 7:50-1.1 to -10.35. 

In addition, on December 16, 2015, the Board of Public Utilities 

(Board) granted a petition by SJG pursuant to N.J.S.A. 40:55D-19, 

and determined that the Municipal Land Use Law (MLUL), N.J.S.A.

40:55D-1 to -163, and any local governmental development 

regulations adopted pursuant to the MLUL, shall not apply to the 

construction or operation of the pipeline. 

Pinelands Preservation Alliance (PPA) and the New Jersey 

Sierra Club and Environment New Jersey (jointly, Sierra Club) 

appeal from the Board's December 16, 2015 decision. Sierra Club 

also appeals from Wittenberg's determination. 

For the reasons that follow, we remand the matter to the 

Commission for further proceedings and a final decision on whether 

SJG's proposed pipeline is consistent with the minimum standards 

of the CMP. We also affirm the Board's decision granting SJG's 

petition pursuant to N.J.S.A. 40:55D-19, but remand the matter to 

the Board for entry of an amended order stating that approval of 

the petition is conditioned upon a final decision of the Commission 

that the pipeline conforms to the CMP. 
4 A-1685-15T1

I.

We briefly summarize the pertinent facts and procedural 

history. The B.L. England Generating Station (BLE) at Beesley's 

Point in Upper Township, Cape May County, is a 447-megawatt 

electricity-generating facility that is powered using coal, oil, 

and diesel fuel. BLE provides electric power to the Pennsylvania, 

New Jersey, and Maryland markets. In 2006, the New Jersey 

Department of Environmental Protection (DEP) ordered Atlantic City 

Electric Company (ACE), which was then the owner of BLE, to meet 

certain emissions standards, repower, or shut BLE down. In 2007, 

ACE sold BLE to RC Cape May Holdings (RC), an affiliate of a 

Delaware limited liability company, Rockland Capital.

In 2012, DEP amended its 2006 order, and gave RC until 2016 

to comply. RC decided to repower the facility using natural gas 

provided by SJG, which is a public utility that provides natural 

gas to approximately 360,000 customers within Camden, Cape May, 

Cumberland, Gloucester, and Salem Counties. SJG proposed to 

construct a pipeline that consists of 1) a "dedicated line" that 

would run about eight miles in Upper Township, from an 

interconnect point/regulator station to the metering station at 

BLE; and (2) a "reliability line" that would run about fourteen 

miles from Maurice River Township to the interconnect 

point/regulator station in Upper Township, where it would connect 
5 A-1685-15T1

to SJG's existing transmission and distribution systems and serve 

as a secondary source of supply for SJG's customers in Southern

Jersey during a natural gas emergency. 

The pipeline would be constructed within three state 

regulatory pinelands management areas: the Pinelands Rural 

Development Area, the Pinelands Village, and the Pinelands Forest 

Area. Under the CMP, public service infrastructure is a permitted 

land use in the Rural Development Areas, N.J.A.C. 7:50-

5.26(b)(10), and in the Pinelands Villages, N.J.A.C. 7:50-

5.27(a)(1). Public service infrastructure is, however, only 

permitted in the Forest Areas if "intended to primarily serve only

the needs of the Pinelands." N.J.A.C. 7:50-5.23(b)(12). 

On July 24, 2012, SJG filed a development application with 

the Commission, seeking authorization and approval to construct 

the pipeline. The Commission's staff deemed the application 

complete on July 29, 2013, but found that the proposed project did 

not meet the land use requirements in the CMP for the Forest Areas. 

The Commission's staff informed SJG that it had not established 

that the pipeline was "intended to primarily serve only the needs 

of the Pinelands" because it would serve SJG customers outside of 

the Pinelands.

On April 29, 2013, the Board issued an order authorizing SJG 

to impose tariffs and allocate costs of constructing the pipeline. 
6 A-1685-15T1

In addition, in June 2013, the Board granted SJG's petition for 

issuance of an order finding that the proposed pipeline complied 

with N.J.A.C. 14:7-1.4, a regulation that governs the siting of 

natural gas pipelines, and requires compliance with certain 

federal safety regulations. 

On November 4, 2013, SJG filed a petition with the Board, 

seeking an order pursuant to N.J.S.A. 40:55D-19, declaring that 

the MLUL and any ordinance or regulation made under the authority 

of the MLUL shall not apply to the proposed pipeline project (the 

MLUL petition). The Board designated Commissioner Joseph L. 

Fiordaliso to serve as hearing officer, and Commissioner 

Fiordaliso thereafter held the first public hearing on SJG's MLUL 

petition.

Meanwhile, the Commission's staff and the Board's staff 

negotiated and drafted a memorandum of agreement (MOA), to allow 

the project to be built in the Pinelands Area even though staff 

had determined that it did not comply with the minimum standards 

of the CMP. N.J.A.C. 7:50-4.52(c)(2) provides that the Commission 

may enter into an intergovernmental agreement with any Federal, 

State, or local government, that allows "such agency" to carry out 

"specified development activities that may not be fully consistent 

with" N.J.A.C. 7:50-5 (minimum standards for land use and 

intensity), and N.J.A.C. 7:50-6 (management programs and minimum 
7 A-1685-15T1

standards for development and land use in the Pinelands).1

On December 9, 2013, the Commission's staff held a public 

hearing and accepted written comments on the completed draft MOA. 

At the hearing, representatives from PPA and Sierra Club objected 

to the project. Members of the public also submitted comments 

opposing and supporting the project. In addition, four former 

Governors — Governors Brendan T. Byrne, Thomas Kean, James J. 

Florio, and Christine Todd Whitman - opposed the project, taking 

the position that it would compromise the integrity of the CMP. 

On January 3, 2014, Wittenberg issued a report recommending 

that the Commission approve the MOA. She explained that the 

project would serve two purposes: (1) permitting the repowering 

of BLE; and (2) providing SJG with the ability to supply natural 

gas to its customers in Atlantic and Cape May counties in 

emergencies. At the Commission's meeting on January 10, 2014, the 

Commission members considered a resolution authorizing Wittenberg 

to execute the MOA. 

 The Commission has fifteen members. N.J.S.A. 13:18A-5(a). 

Seven members voted in favor of the resolution, seven members 

voted against it, and one member recused himself from voting on 

 

1 It should be noted that although the proposed MOA was an agreement 

between the Commission and the Board, it was SJG, not the Board, 

which would be engaged in the "specified development" activity.
8 A-1685-15T1

the resolution. Because the Commission's by-laws provide that the 

affirmative vote of eight members is required for the Commission 

to take action on a motion or resolution, the MOA was not approved. 

SJG thereafter filed a notice of appeal from the Commission's 

failure to take action approving the MOA. In July 2014, DEP agreed

that RC would have until May 2017 to comply with its 2006 order.

In May 2015, SJG submitted a revised pipeline development 

application to the Commission, along with additional information 

intended to show that the pipeline could be built in the Forest 

Area because it was "intended to primarily serve only the needs 

of the Pinelands." N.J.A.C. 7:50-5.23(b)(12). SJG noted that the 

project had been modified to reduce the impacts in the Forest Area 

by prohibiting additional interconnections with the line and 

relocating the interconnect point/regulator station out of the 

Forest Area. 

In addition, SJG replaced three miles of open-cut 

installation with horizontal-directional drilling. SJG disclosed 

its previously-confidential agreement with RC, which requires SJG

to provide RC an uninterrupted supply of natural gas to BLE for 

at least 350 days per year. SJG also provided a report from PJM 

Interconnection, L.L.C. (PJM), which stated that continued 

operation of BLE was vital to the relevant service area. 

In August 2015, the Commission's Director of Regulatory 
9 A-1685-15T1

Programs found that the application was complete and issued a 

Certificate of Filing (COF), which stated in part:

Based on review of the application, including 

newly submitted information, materials in the 

record and review of prior applications, the 

applicant has demonstrated that the proposed 

gas main is consistent with the permitted use 

standards of the CMP. Specifically, the 

proposed pipeline is designed to transport gas 

to an existing facility, the [BLE] plant 

(built in 1963) that is located in the 

Pinelands. 

Wittenberg advised the Commission that after the issuance of the 

COF, SJG could continue its MLUL proceeding before the Board. 

Wittenberg told the Commission that after the Board's proceedings, 

staff would review the application another time to ensure 

compliance with the CMP. 

On August 21, 2015, Wittenberg wrote to the Board's Executive 

Director and enclosed a copy of the COF. She requested copies of 

any petitions that SJG filed with the Board regarding the pipeline 

project, including SJG's previously-filed MLUL petition, all 

associated hearing and meeting notices and transcripts, copies of 

all staff reports, and any draft orders pertaining to SJG's 

proposed pipeline project. In October 2015, Fiordaliso conducted 

two more public hearings and an evidentiary hearing on the MLUL 

petition. PPA was permitted to participate in the evidentiary 

hearing. 
10 A-1685-15T1

II.

 In a letter dated December 14, 2015, Wittenberg informed the 

Board's Executive Director that "[b]ased on [the] Pinelands 

Commission['s] staff expertise and experience administering the 

CMP and our review of the record, the prior finding of consistency 

with the CMP in the [COF] issued on August 14, 2015 remains 

unchanged." She noted that any order by the Board authorizing 

SJG's installation of its pipeline had to be consistent with the 

minimum standards in the CMP rules, since that development would

occur in the Pinelands Area.

Wittenberg reviewed the information she had received from the 

Board and addressed the public's comments concerning the project's 

consistency with the CMP. She rejected the claim that her staff's 

initial finding that SJG's project was inconsistent with the CMP 

standards in N.J.A.C. 7:50-5.23 could not be changed. Wittenberg

explained that SJG had revised its proposal by: (1) moving the 

proposed interconnect point/regulator station from the Forest Area 

and to Pinelands Village; and (2) adding a new provision limiting 

the company's ability to connect new customers in the Forest Area. 

 SJG also had submitted new and updated information that 

previously had not been available for review. She wrote:

Specifically, . . . the proposed pipeline 

[will] be available to serve the [BLE] plant 

95% of the time. The proposed project will 
11 A-1685-15T1

also provide an ancillary benefit of providing 

redundant gas service to those customers of 

[SJG] who live both inside and outside of the 

Pinelands Area during an operational upset. 

Given that the primary purpose of the proposed 

project is to provide gas to the [BLE] plant 

95% of the time, a fact not available at the 

time of the Executive Director's initial 

decision, Commission staff found that the 

[SJG] had demonstrated the project's 

consistency with the Forest Area use standards 

of the Pinelands CMP, i.e., that the proposed 

project primarily serves only the needs of the 

Pinelands by serving the needs of a facility 

located in the Pinelands 95% of the time.

Wittenberg rejected the claim that SJG did not intend that 

its proposed pipeline project would primarily serve to repower 

BLE. She explained:

The Pinelands CMP at N.J.A.C. 7:50-5.23(b)12 

permits the development of public service 

infrastructure, which includes natural gas 

transmission lines, within a Forest Area, if 

such infrastructure is intended to primarily 

serve only the needs of the Pinelands. The 

term 'Pinelands' is defined by the Pinelands 

CMP at N.J.A.C. 7:40-2.11 as including both 

the Pinelands Natural Reserve and the 

Pinelands Area. Consequently, the term 

"Pinelands" is broader than the term 

"Pinelands Area" which is defined by the 

Pinelands CMP as the area designated as such

by Section 10(a) of the Pinelands Protection 

Act.

Wittenberg concluded that SJG had demonstrated that its 

proposed pipeline is consistent with the permitted use standards 

of the CMP. She wrote that the pipeline is designed primarily to 

transport gas to BLE, an existing facility located in the 
12 A-1685-15T1

Pinelands. She found that the project is "intended to primarily 

serve only the needs of the Pinelands," and was a permitted use 

in the Forest Area, pursuant to N.J.A.C. 7:50-5.23(b)(12). 

III.

On December 16, 2015, the Board issued its order on SJG's 

MLUL petition. The Board reviewed all the evidence and testimony 

of the numerous public comments including those provided by PPA, 

the COF, and Wittenberg's December 14, 2015, consistency 

determination. The Board noted that Wittenberg had concluded the 

project was consistent with the minimum standards of the CMP. The 

Board found that SJG had met its burden of proof under N.J.S.A.

40:55D-19, and had established that the project was reasonably 

necessary for the service, convenience or welfare of the public.

The Board considered the need for the project, the pipeline 

routing, and cost allocation. It found that: (1) conversion of BLE 

from coal and oil to gas-fired generation provides an environmental 

benefit; (2) continued operation of that plant would serve a need 

for capacity in the area and provides a clean source of in-state 

power in furtherance of New Jersey's Energy Master Plan ("EMP"); 

(3) the project would enhance the reliability of SJG's service 

territories; and (4) there was no alternative route that would 

have less adverse environmental impacts. 

The Board also found that when the nearby Oyster Creek nuclear 
13 A-1685-15T1

power plant is taken out of service in 2019, BLE will be the only 

significant base-load power generating station in the coastal area 

of Southern New Jersey. Repowering BLE will increase power 

generation by thirty percent and reduce the production of 

greenhouse gases, including nitrogen oxides and sulfur dioxide.

The Board rejected PPA's contentions that SJG's real 

intention is to serve only its existing customers in Atlantic and 

Cape May Counties, as evidenced by its statements that it would

pursue the project independently of the repowering of BLE, and 

that SJG's pipeline and the repowering of BLE would not serve the 

needs of the Pinelands.

The Board explained that, while it was "sensitive to the 

alleged environmental, health and safety concerns raised by the 

local residents," it was persuaded by the evidence that SJG "has 

considered the environmental impacts of the [p]roject and has 

committed to constructing the [p]ipeline guided by the goal of 

minimizing those impacts where they cannot be avoided." The Board 

noted that SJG's experts had analyzed the effect the alternative 

routes would have on the environment and had selected the preferred 

route based upon environmental-permitting considerations and DEP's 

input.

PPA and Sierra Club thereafter filed their notices of appeal. 

We consolidated the appeals, and also granted a motion by RC to 
14 A-1685-15T1

intervene. In addition, we granted a motion by Governors Byrne, 

Florio and Whitman to appear as amici curiae. 

On appeal, PPA raises the following issues: (1) the Board and 

the Commission's Executive Director lacked jurisdiction to review 

the proposed project because the Commission had already declined 

to approve it under the Pinelands Protection Act, N.J.S.A. 13:18A-1 

to -58, and the CMP rules; (2) the Commission and its Executive 

Director acted arbitrarily, capriciously, or contrary to law by 

failing to adhere to its original finding that the proposed 

pipeline violated the CMP; (3) the Commission erred by failing to 

conduct any review and taking any action on the proposed pipeline 

project; and (4) the Board acted arbitrarily, capriciously, or 

contrary to law by approving SJG's petition pursuant to N.J.S.A.

40:55D-19.

In its appeals, Sierra Club argues: (1) the Board's decision 

to grant SJG's MLUL petition was wrong as a matter of law: (2) the 

Board's approval of the MLUL petition must be conditioned upon the 

review and approval by the Commission of SJG's pipeline 

application; (3) the Commission erred by failing to ensure that 

all development in the Pinelands is consistent with the CMP; 

(4) the Executive Director did not have authority to issue a COF 

for the project and end Commission review; and (4) the Executive 
15 A-1685-15T1

Director erred by finding that SJG's project was consistent with 

the CMP. 

IV.

PPA argues that the Executive Director did not have 

jurisdiction or was precluded from issuing her December 14, 2015 

consistency determination because: (1) the Commission's staff had 

determined that the project, as initially proposed, did not comply 

with the minimum standards of the CMP and SJG did not appeal that 

determination; (2) the Commission refused to take action approving 

the MOA, which would have allowed the project to proceed and SJG 

had appealed that determination; and (3) the pending appeal 

deprived the Commission and its staff from exercising any 

jurisdiction with regard to the project until the appeal was 

dismissed in May 2016. We find no merit in these arguments. 

 As we have explained, the Commission's staff initially 

determined that SJG had not established that the project was 

"intended to primarily serve only the needs of the Pinelands," as 

required by N.J.A.C. 7:50-5.23(b)(12), and therefore could not be 

constructed in the Forest Area. However, that was a decision on 

SJG's first application, and it was based on the information that 

was available at that time.

Furthermore, the Commission did not issue a decision finding 

that the project, as initially proposed, did not meet the 
16 A-1685-15T1

requirements of N.J.A.C. 7:50-5.23(b)(12). Although the Executive 

Director recommended that the Commission approve an MOA with the 

Board, based on the assumption that the project was not "intended 

to primarily serve only the needs of the Pinelands," the Commission 

never acted on the recommendation. 

Thus, the decision by the Commission's staff on SJG's first 

application, and the Commission's failure to act on the proposed 

MOA did not preclude SJG from submitting a revised proposal, with 

additional information intended to establish that the project met 

the requirements of N.J.A.C. 7:50-5.23(b)(12). The second 

application was, in fact, a new matter, which the agency had 

authority to consider and act upon. 

Moreover, SJG's appeal from the Commission's failure to 

approve the proposed MOA did not preclude the Commission from 

exercising its jurisdiction to review SJG's revised proposal. Rule

2:9-1(a) provides in part that "the supervision and control of the 

proceedings on appeal" shall be in the Appellate Division "from 

the time the appeal is taken[.]" The filing of an appeal generally 

divests the trial court or agency of jurisdiction to act in the 

matter under appeal, unless directed to do so by the appellate 

court. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J.

366, 376 (1995). 
17 A-1685-15T1

The "proceedings on appeal" in SJG's appeal related to the 

Commission's failure to approve the MOA. SJG's second development 

application was a separate matter. We are therefore convinced that 

SJG's appeal did not divest the agency of jurisdiction to consider 

the revised development proposal. See Gandolfi v. Town of 

Hammonton, 367 N.J. Super. 527, 548 (App. Div. 2004) (noting that 

planning board had jurisdiction to consider new subdivision 

application despite pendency of appeal challenging prior denial 

of the application because second application was entirely new).

PPA further argues that the Commission acted arbitrarily, 

capriciously and unreasonably by failing to adhere to Wittenberg's 

initial determination that the pipeline as initially proposed did 

not comply with the CMP. PPA contends that the Commission is bound 

by principles of collateral estoppel and res judicata from taking 

a different position regarding the project's compliance with the 

CMP. PPA asserts the revised proposal was essentially the same as 

the initial proposal. 

Again, we disagree. Collateral estoppel and res judicata do 

not apply here because Wittenberg's determination pertained to the 

first application, and the Commission never rendered a final 

decision on that application. See Hennessey v. Winslow Township, 

183 N.J. 593, 599 (2005) (noting that re-litigation of an issue 

is precluded if the identical issue has been litigated and decided 
18 A-1685-15T1

in a prior proceeding). Moreover, SJG revised its plan and 

submitted additional information for the Commission's 

consideration on the issue of CMP compliance. 

 PPA's arguments on these issues are without sufficient merit 

to warrant further comment. R. 2:11-3(e)(1)(E).

V.

We turn to PPA's and Sierra Club's arguments that the 

Executive Director did not have authority to render a final 

decision on behalf of the Commission regarding the project's 

compliance with the CMP. Amici curiae also argue that under the 

Pinelands Act, the Commission was required to vote upon and 

determine whether SJG's application complied with the minimum 

standards of the CMP.

Section 502 of the National Parks and Recreation Act of 1978 

(the Federal Act), 16 U.S.C.A. § 471i(c), created the Pinelands 

National Reserve, which includes all or part of fifty-six 

municipalities in seven southern New Jersey counties. The Federal 

Act directed the Governor of New Jersey to establish a planning 

agency to develop a CMP for the National Reserve. 16 U.S.C.A.

§ 471i(d). Governor Byrne thereafter established the Pinelands 

Planning Commission. N.J. Exec. Order No. 71 (Feb. 8, 1979), Laws 

of N.J. 1979, Vol. II, at 1897-1904.
19 A-1685-15T1

The Pinelands Act was subsequently enacted. It established 

the Commission, N.J.S.A. 13:18A-4(a), and directed it to prepare 

a CMP to which county and municipal master plans must conform, 

N.J.S.A. 13:18A-8 to -10. The Act provided that the CMP must 

include a program for its implementation "in a manner that will 

insure the continued, uniform, and consistent protection of the 

pinelands area in accord with the purposes and provisions of the 

[state and federal legislation]." N.J.S.A. 13:18A-8(i). 

The CMP applies to all development in the Pinelands Area. 

N.J.A.C. 7:50-1.4. The CMP states in pertinent part that "[t]he 

Commission bears the ultimate responsibility for implementing and 

enforcing the provisions" of the Pinelands Act and the CMP. 

N.J.A.C. 7:50-1.11. The CMP also states that the Executive Director 

is the chief administrative officer of the Commission, and is 

"charged with the administration and enforcement of" the CMP 

subject to the Commission's approval of the Executive Director's 

actions. N.J.A.C. 7:50-1.21(a).

The CMP sets forth procedures and standards for applications 

for development in municipalities whose master plans have been 

certified by the Commission. N.J.A.C. 7:50-4.31 to -4.42. In 

general, for certified municipalities, the CMP provides that the 

Executive Director shall initially review preliminary and final 

municipal approvals for development within the Pinelands. N.J.A.C.
20 A-1685-15T1

7:50-4.37(a), -4.38(a), and -4.40(a). The CMP further provides 

that the Commission may review and issue decisions with regard to 

certain approvals. N.J.A.C. 7:50-4.38(b), -4.42, -4.91(a).

In addition, the CMP establishes procedures for so-called 

coordinated permitting by State agencies. N.J.A.C. 7:50-4.81 

to -4.85. The CMP states that 

No department board, bureau, official or other 

agency of the State of New Jersey shall issue 

any approval, certificate, license, consent, 

permit, or financial assistance for the 

construction of any structure or the 

disturbance of any land in the Pinelands Area 

unless such approval or grant is consistent 

with the minimum standards of [the CMP].

[N.J.A.C. 7:50-4.81(a).]

Before any application for development in the Pinelands Area 

is filed with a State agency, the applicant must submit a copy of 

the application to the Commission. N.J.A.C. 7:50-4.81(b). The 

State agency should not consider the application unless the 

Executive Director has issued a COF, a notice of filing, and a 

certificate of completeness, or the Commission has approved an 

application for public development. Ibid. The Executive Director 

then determines 

what, if any, special interests the Commission 

has with respect to the application, the 

extent to which the Commission staff should 

participate in any proceedings held by the 

state agency with which the application is to 

be filed, and whether any Commission review 
21 A-1685-15T1

provided for in this Plan should be conducted 

before, after or simultaneously with any 

proceedings to be conducted by the state 

agency.

[N.J.A.C. 7:50-4.82(a).] 

If the Executive Director finds that the State agency may 

conduct its proceedings on the application "prior to or 

simultaneously with any Commission review provided for in [the 

CMP]," the Executive Director issues a COF, which indicates that 

the application has been filed with the Commission and the 

applicant is authorized to file the application with the State 

agency. N.J.A.C. 7:50-4.82(b). 

 The Executive Director then determines the degree to which 

Commission staff shall participate in the State agency 

proceedings. N.J.S.A. 7:50-4.82(c). Such participation "may 

include, but is not limited to

1. Submitting a written analysis of any 

concerns and opinions the Commission staff has 

with respect to the conformance of the 

proposed development with the minimum 

standards of the [CMP], including a list of 

any conditions which it determines should be 

imposed in the event that the permit is 

granted;

2. Submitting written evidence with respect 

to the conformance by the proposed development 

with the minimum standards of [the CMP].

[N.J.A.C. 7:50-4.82(c).]
22 A-1685-15T1

The CMP does not, however, expressly provide that, in the 

coordinated permitting process, the Commission may review a 

determination by its staff or the Executive Director as to whether 

a particular development plan meets the minimum standards of the 

CMP. Furthermore, the CMP does not confer on the Executive Director 

or the Commission's staff the authority to render final decisions 

on CMP compliance in these circumstances. There also is no 

provision in the Pinelands Act that confers upon the Executive 

Director authority to render a final decision for the Commission 

in the coordinated permitting process. 

 Here, the Commission retains final decision-making authority 

as to whether SJG's proposed pipeline is consistent with the 

minimum standards of CMP. Indeed, as we have pointed out, the CMP 

states, "the Commission bears the ultimate responsibility for 

implementing and enforcing the provisions" of the Pinelands Act 

and the CMP. N.J.A.C. 7:50-1.11. The Commission therefore retains 

"ultimate responsibility" under the CMP to review the proposed 

project and render a final decision on CMP compliance. 

On appeal, the Commission argues that N.J.S.A. 40:55D-19 

provides sufficient authority for the Board to render a final 

decision as to whether SJG's development proposal is consistent 

with the CMP. The Commission points out that the Pinelands Act 

states that
23 A-1685-15T1

no State approval, certificate, license, 

consent, permit, or financial assistance for 

the construction of any structure or the

disturbance of any land within [the Pinelands] 

shall be granted unless such approval or grant

conforms to the provisions of [the CMP].

[N.J.S.A. 13:18A-10(c).]

However, in deciding whether to grant a petition brought 

under N.J.S.A. 40:55D-19, the Board determines whether the MLUL 

and local regulations adopted pursuant to the MLUL should be 

waived. The Board's approval of any MLUL petition must be 

consistent with the minimum standards of the CMP, but the Board 

is not empowered to make that determination in the first instance. 

In this matter, that decision must be made by the Commission, 

pursuant to its authority under the Pinelands Act and the CMP. 

We note that, in this matter, the Board did not make a factual 

finding on the critical issue of whether SJG's pipeline is 

"intended to primarily serve only the needs of the Pinelands" and 

therefore a permitted use in the Forest Area. The Board merely 

relied upon Wittenberg's decision on this issue, and on that basis, 

its approval of SJG's MLUL petition complied with N.J.S.A. 13:18A10(c). 

We therefore conclude that the matter must be remanded to the 

Commission for further proceedings so that the Commission may 

review the Executive Director's determination, in light of the 
24 A-1685-15T1

objections that have been raised by PPA, the Sierra Club, and 

amici curiae. The Commission shall determine whether to review the 

Executive Director's decision based on the factual record 

developed before the Board, or whether the parties should be 

permitted to present additional evidence on the question of whether 

the pipeline is consistent with the minimum standards of the CMP. 

The Commission also shall determine whether to refer the 

matter for a hearing before an Administrative Law Judge (ALJ). In 

that regard, we note that, under the CMP's provisions for review 

of development applications in municipalities with certified land 

use regulations, the Commission may review a preliminary approval 

if it raises substantial issues of CMP compliance. N.J.A.C. 7:50-

4.37(a)-(b). 

 If so, the Executive Director must give notice of the staff's 

determination to the applicant, local permitting agency, and any 

interested persons. N.J.A.C. 7:50-4.37(b). The applicant, local 

permitting agency, and any interested persons may request a hearing 

before an ALJ. Ibid. Thereafter, the Commission may issue a final 

decision on the matter. N.J.A.C. 7:50-4.91(e). 

 The Commission shall consider whether the same or similar 

procedures should be followed in reviewing Wittenberg's decision. 

See In re Application of John Madin, 201 N.J. Super. 105, 128-34 

(App. Div.) (holding that municipalities whose development 
25 A-1685-15T1

ordinances have not been certified by the Commission are entitled 

to an evidentiary hearing on the grant of development approval), 

certif. granted, 102 N.J. 380 (1985), certif. vacated, 103 N.J.

689 (1986). Moreover, the public should be afforded notice and the 

opportunity to be heard before the Commission renders a final 

decision on the application. Id. at 135-36.

In view of our decision, we need not address the other issues 

raised by the parties concerning the merits of Wittenberg's 

decision. 

VI.

PPA argues that the Board did not have jurisdiction to

consider SJG's MLUL petition. It also argues that the Board acted 

arbitrarily, capriciously and contrary to law in approving SJG's 

MLUL petition. PPA contends the record does not support the Board's 

determination that the pipeline is "reasonably necessary for the 

service, convenience, or welfare of the public," as required by 

N.J.S.A. 40:55D-19. We disagree. 

PPA contends that the Board did not have jurisdiction to 

review SJG's MLUL petition because SJG previously had appealed the 

Commission's failure to approve the MOA for the project. We 

disagree with this contention for essentially the same reasons 

stated previously regarding PPA's contention that the appeal 

precluded the Commission from considering SJG's revised 
26 A-1685-15T1

application. The MOA and SJG's MLUL petition both pertained to the 

pipeline, but these were separate matters before State agencies, 

each with its own statutory responsibilities. We conclude the 

Board had jurisdiction to review and act upon SJG's petition. 

We turn to PPA's challenge to the Board's decision. The scope 

of review of the final determination of an administrative agency 

is limited. In re Carter, 191 N.J. 474, 482 (2007). An agency's 

decision will be affirmed "unless there is a clear showing that 

it is arbitrary, capricious, or unreasonable, or that it lacks 

fair support in the record." In re Herrmann, 192 N.J. 19, 28 

(2007). In reviewing an administrative agency's decision, we will 

grant considerable deference to the agency's expertise, where such 

expertise is a relevant factor. Campbell v. N.J. Racing Comm'n, 

169 N.J. 579, 588 (2001). 

Here, SJG petitioned the Board for waiver of the MLUL and 

local government MLUL regulations and approvals pursuant to 

N.J.S.A. 40:55D-19, which requires the Board to find that 

the present or proposed use by the public 

utility . . . is necessary for the service, 

convenience or welfare of the public . . . and 

that no alternative site or sites are 

reasonably available to achieve an equivalent 

public benefit, the public utility . . . may 

proceed in accordance with such decision of 

the [Board], any ordinance or regulation made 

under the authority of this act 

notwithstanding.
27 A-1685-15T1

In making its determination, the Board must consider the 

site, the community zoning plan and zoning ordinances, the physical 

characteristics of the plot, and the surrounding neighborhood. In 

re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 377 (1961). When

determining reasonable necessity, the Board must consider 

alternative sites and their advantages and disadvantages, 

including their costs. Ibid. The Board also must weigh all of the 

parties' interests, and where those interests are equally 

balanced, it must give the utility preference in light of the 

Legislature's clear intent that the broad public interest to be 

served is greater than local considerations. In re Monmouth Consol. 

Water Co., 47 N.J. 251, 258 (1966); Pub. Serv., supra, 35 N.J. at 

377. 

 Here, the Board considered the relevant factors, and there 

is sufficient credible evidence to support its finding that SJG 

had shown that the project is "reasonably necessary for the 

service, convenience or welfare of the public." N.J.S.A. 40:55D19. The Board found that the "dedicated line" is reasonably 

necessary and would serve the goals of the EMP, one of which is 

to expand in-state resources fueled by natural gas. The Board 

determined that there is a need for electric-generating capacity 

in the area of BLE, noting that the Oyster Creek nuclear power

plant in Southern New Jersey will be retired in 2019. 
28 A-1685-15T1

 The Board noted that BLE will be the only significant baseload power generating station in the coastal area of Southern New 

Jersey. The Board also found that the "dedicated line" will cause 

a "significant improvement" in air quality in the region, by 

reducing the production of greenhouse gases, nitrogen oxides, and 

sulfur dioxide. 

In addition, the Board found that the "reliability line" will 

enhance SJG's ability to provide reliable natural gas service to 

its customers. The Board noted that presently a single, twentymile-long pipeline services 60,000 SJG customers in Cape May 

County, and a disruption anywhere along this line could jeopardize 

service to these customers. The Board also noted that there is no 

other location in SJG's system with "a single upset vulnerability" 

of this magnitude.

PPA argues that the Board's decision unlawfully waives the 

pipeline's need to comply with the CMP. We do not agree. As noted 

previously, N.J.A.C. 7:50-4.81 mandates that no State agency may 

grant approval, license, or financial assistance for any 

construction or disturbance in the Pinelands "unless such approval 

or grant is consistent with the minimum standards of the [CMP]." 

 Here, the Board's order does not state that the pipeline is 

not subject to the Pinelands Act or the CMP. Indeed, the Board's 

decision correctly recognizes that the pipeline must be consistent 
29 A-1685-15T1

with the minimum standards of the CMP. Thus, there is no merit to 

PPA's contention that the Board has waived compliance with the 

Pinelands Act and the CMP. 

PPA further argues that the Board could not lawfully find 

that the project conforms to the CMP. PPA contends that the record 

shows that the pipeline is not "intended to primarily serve only 

the needs of the Pinelands." We note, however, that the Board did 

not make its own findings as to whether the project complies with 

the CMP. The Board merely took note of Wittenberg's determination 

of December 14, 2015, and relied upon that determination as a 

basis for concluding that the project met the minimum standards 

of the CMP. As we have determined, Wittenberg's decision must be 

reviewed by the Commission and the Commission must decide whether 

the project complies with the CMP. 

PPA also contends that the record does not support the Board's 

decision that the pipeline furthers the goals of the EMP. PPA 

asserts the evidence does not show that the pipeline will result 

in a significant improvement in air quality and other positive 

environmental impacts. PPA also asserts that while the EMP 

encourages the use of "clean" energy sources like natural gas, the 

proposed pipeline violates the Pinelands Act and CMP, and the 

repowering of BLE is not necessary to ensure the reliability of 

the natural gas supply to SJG's customers in Southern New Jersey.
30 A-1685-15T1

PPA's arguments lack sufficient merit to warrant discussion 

in this opinion. R. 2:11-3(e)(1)(E). Suffice it to say, however, 

there is sufficient credible evidence in the record to support the 

Board's findings on these issues, and PPA has provided no basis 

for this court to second-guess the Board's considered judgment 

that the pipeline furthers the goals of the EMP and is reasonably 

necessary for the service, convenience or welfare of the public. 

 On appeal, Sierra Club contends that the Board's decision 

waiving municipal approvals was wrong as a matter of law. Sierra 

Club contends that N.J.S.A. 40:55D-19 does not apply to Pinelandsbased reviews and ordinances, and that the Board had no authority 

to override any local approval that is otherwise required by the 

Pinelands Act and any ordinances authorized and adopted under that 

Act. We are not persuaded by this argument. 

By its plain language, N.J.S.A. 40:55D-19 gives the Board the 

authority to waive the MLUL and any local ordinance or regulation 

adopted pursuant to the MLUL. The Board's authority under N.J.S.A.

40:55D-19 necessarily includes the power to waive any MLUL review 

of approvals by municipalities in the Pinelands. The Pinelands Act 

does not limit the exercise of this power. However, as the Board 

recognized in its final decision, any development project for 

which local MLUL regulation is waived pursuant to N.J.S.A. 40:55D-
31 A-1685-15T1

19 remains subject to the Pinelands Act and the minimum standards 

of the CMP. 

Sierra Club also contends that the Board erred by relying 

upon Wittenberg's December 14, 2015 determination as a basis for 

its understanding that the project is consistent with the minimum 

standards of the CMP. As stated previously, Wittenberg was not 

authorized to render a final consistency determination regarding 

the project, and the matter will be remanded so that the Commission 

can render a final decision on that issue. 

We therefore conclude that the Board's reliance upon 

Wittenberg's determination was misplaced. Consequently, the 

Board's December 16, 2015 order must be amended to state that 

approval of SJG's MLUL petition shall be conditioned upon issuance 

of a final decision by the Commission finding that the pipeline 

project meets the minimum standards of the CMP. 

In view of our determination, we need not address the other 

issues raised by PPA, Sierra Club or amici curiae.

Accordingly, we remand Executive Director Wittenberg's 

December 14, 2015 determination to the Commission for further 

proceedings in conformity with this opinion. We also remand the 

matter to the Board for entry of a modified order, stating that 

the approval of SJG's petition under N.J.S.A. 40:55D-19 is 

conditioned upon the Commission's issuance of a final 
32 A-1685-15T1

determination finding that the pipeline project meets the minimum 

standards of the CMP. In all other respects, the Board's decision 

and order of December 16, 2015, is affirmed.

The Board's final decision is affirmed in part, and remanded 

in part for entry of an amended order of approval. In addition, 

Executive Director Wittenberg's decision is remanded to the 

Pinelands Commission for further proceedings in accordance with 

this opinion. We do not retain jurisdiction.