Opinion
DOCKET NO. A-0748-13T2
04-23-2015
PENNSVILLE TRAVEL CENTER, INC., Petitioner-Appellant/Cross-Respondent, v. ATLANTIC CITY ELECTRIC COMPANY, Respondent-Respondent/Cross-Appellant.
Braverman Kaskey, P.C., attorneys for appellant/cross-respondent (David L. Braverman, on the briefs). Cooper Levenson, P.A., attorneys for respondent/cross-appellant (William S. Donio, of counsel; Howard E. Drucks, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Board of Public Utilities (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Veronica A. Beke, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Hayden. On appeal from the New Jersey Board of Public Utilities, Docket No. EC10030233. Braverman Kaskey, P.C., attorneys for appellant/cross-respondent (David L. Braverman, on the briefs). Cooper Levenson, P.A., attorneys for respondent/cross-appellant (William S. Donio, of counsel; Howard E. Drucks, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Board of Public Utilities (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Veronica A. Beke, Deputy Attorney General, on the brief). PER CURIAM
This appeal pertains to the relocation of six utility poles. Respondent Atlantic City Electric Company (AC Electric) owns the poles. They are situated on property apparently owned by petitioner Pennsville Travel Center, Inc. (Pennsville Travel) and Pennsville Commercial Land, Inc. (Pennsville Land), pursuant to an easement. Pennsville Travel seeks to develop a "Welcome Center" on the property. The Welcome Center would complement a development that already includes two restaurants, a pre-existing hotel, and a newly constructed hotel. In order to construct the Welcome Center, the six poles need to be moved to a different location on the property.
In the original petition to the Board of Public Utilities, Pennsville Travel represented that its property was the site of the Welcome Center, without reference to Pennsville Land. It appears that the project is intended to occupy multiple parcels, all of which are owned by Pennsville Land, except for Block 301, lot 9 in Pennsville Township, which is owned by Pennsville Travel. The poles at issue are located on that site.
The principal issue in this case is who pays. Pennsville Travel asserts that AC Electric should pay the relocation costs. Pennsville Travel argues that the utility's tariff does not authorize charging Pennsville Travel, and the common law requires the utility to bear the costs because the Welcome Center serves a public purpose. Alternatively, Pennsville Travel contends that AC Electric's cost estimates were unreasonable.
The Board of Public Utilities (Board) adopted the initial decision of Administrative Law Judge (ALJ) W. Todd Miller, and held that Pennsville Travel should bear the cost of the relocation. Distinguishing Pine Belt Chevrolet, Inc. v. Jersey Central Power & Light Co., 132 N.J. 564 (1993), the Board found that Pennsville Travel's proposed development did not satisfy the common law doctrine that requires a public utility to bear the cost of certain improvements that promote the public welfare. Rather, the case was governed by the common law rule that "generally assigns relocation costs to the beneficiary when the beneficiary is a private property owner." The Board did not rely on the utility's tariff for its decision, presuming that the ALJ found it ambiguous.
The Board also adopted the ALJ's determination to assign to Pennsville Travel the burden to prove that AC Electric's cost estimate was unreasonable. Pennsville Travel failed to present an expert witness at the evidentiary hearing on the issue of the reasonableness of AC Electric's estimate. The ALJ rejected Pennsville Travel's argument that its failure to present an expert was excused by AC Electric's failure to disclose a so-called "bid package" related to the project. The ALJ found that disclosure of the bid package was contemplated only in the course of settlement negotiations, but was not otherwise compelled. Moreover, Pennsville Travel did not timely object to the non-disclosure in advance of the hearing. The Board adopted those findings as well.
On appeal, Pennsville Travel argues that the tariff does not authorize AC Electric to charge it for the relocation. In any event, Pennsville Travel argues the common law public purpose doctrine relieves it of the relocation costs. Finally, Pennsville Travel argues that the utility should bear the burden to prove the reasonableness of its charges, and it was an error to proceed with the hearing given AC Electric's failure to produce the bid package. AC Electric filed a cross-appeal, renewing a challenge it raised before the ALJ that the case was not ripe for adjudication, and the Board lacked jurisdiction over Pennsville Travel's claims. Having considered these arguments in light of the record and applicable principles of law, we affirm.
We are guided by well-settled principles governing our review of the Board's decisions. With respect to factual findings, we will not substitute our judgment for the Board's, particularly when it involves exercise of the agency's expertise. In re Pub. Serv. Elec. & Gas Co.'s Rate Unbundling, Stranded Costs & Restructuring Filings, 167 N.J. 377, 384 ("PSE&G Rate Unbundling"), cert. denied, 534 U.S. 813, 122 S. Ct. 37, 151 L. Ed. 2d 11 (2001). We review the Board's findings to determine if they are accompanied by "'reasonable support in the evidence.'" In re Jersey Cent. Power & Light Co. Petition, 85 N.J. 520, 527 (1981) (quoting In re Revision in Rates Filed By N.J. Power & Light Co., 9 N.J. 498, 509 (1952)).
On the other hand, we are "in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue." Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973). Nonetheless, we generally defer to an agency's legal interpretation when it involves technical matters within its expertise, A.Z. v. Higher Educ. Student Assistance Auth., 427 N.J. Super. 389, 394 (App. Div. 2012), or its interpretation involves a permissible construction of an ambiguous provision, Matturri v. Bd. of Trs. of Judicial Ret. Sys., 173 N.J. 368, 381-82 (2002), particularly because "[t]he grant of authority to an administrative agency is to be liberally construed to enable the agency to accomplish the Legislature's goals[.]" PSE&G Rate Unbundling, supra, 167 N.J. at 384 (internal quotation marks and citation omitted). "[A] tariff is not a mere contract. It is the law, and its provisions are binding on a customer whether he knows them or not." In re Application of Saddle River, 71 N.J. 14, 29 (1976). The interpretation of a tariff lies within the Board's expertise. See Muise v. GPU, Inc., 332 N.J. Super. 140, 159 (App. Div. 2000).
Although the Board grounded its decision on common law principles governing the allocation of utility relocation costs, we nonetheless begin by addressing the tariff. We do so because Pennsville Travel argues that the tariff does not authorize the cost assignment, and absent such authorization, the cost assignment is unlawful.
The tariff includes provisions governing the assignment of costs for relocation of underground and above-ground facilities. It is apparent that the operative provision regarding the relocation of above-ground facilities unintentionally omits reference to non-governmental entities. Pennsville Travel seeks to exploit that omission.
The provision regarding underground facilities, section 9.6, expressly addresses requests by governmental and non-governmental entities, and imposes relocation costs on both governmental and non-governmental entities:
Whenever, for any reason [AC Electric] shall be requested by a Federal, State, County or local government entity ("Governmental Entity"), or any other Non-Governmental Entity or person ("Non-Governmental Entity"), to relocate currently existing overhead facilities underground or to design or redesign proposed facilities to use underground rather than overhead construction, the total cost attributable to
such relocation/redesign and underground installation shall be the responsibility of the requesting Governmental Entity or Non-Governmental Entity, as the case may be . . . .
[Tariff, Atl. City Elec. Co., BPU NJ No. 11, First Revised Sheet No. 24, section 9.6 (emphasis added).]
The provision regarding above-ground facilities, section 9.7, likewise refers to charges to governmental and non-governmental entities, but omits reference to requests by non-governmental entities:
Whenever, for any reason [AC Electric] shall be requested by a Federal, State, County or local government entity ("Governmental Entity") to relocate currently existing overhead facilities or to design or redesign proposed facilities underground rather than overhead, the total cost attributable to such relocation/redesign and installation shall be the responsibility of the requesting Governmental Entity or Non-Governmental Entity, as the case may be . . . .
[Tariff, Atl. City Elec. Co., BPU NJ No. 11, First Revised Sheet No. 25, section 9.7 (emphasis added).]
Based on the omission, Pennsville Travel argues that section 9.7 simply does not apply to requests to relocate above-ground facilities by non-governmental entities. We are unpersuaded. It is clear from section 9.7's similarity with section 9.6, that the omitted reference to requests by non-governmental entities was unintentional. Under Pennsville Travel's interpretation, the reference to charges to non-governmental entities in section 9.7 would be surplusage. Yet, "[i]nterpretations that render the Legislature's words mere surplusage are disfavored." In re Civil Commitment of J.M.B., 197 N.J. 563, 573, cert. denied, 558 U.S. 999, 130 S. Ct. 509, 175 L. Ed. 2d 361 (2009). The same principle should apply to tariffs.
The reference to charges to non-governmental entities in section 9.7 makes sense only if one assumes that the section also covers requests by non-governmental entities, although reference to such requests was inadvertently omitted. This is an exceptional case where an omitted term should be supplied. "[W]here words have been omitted from a statute by inadvertence, or through clerical error, and the intent of the legislature is clearly ascertainable from the context, the court will insert the words necessary to carry out that manifest intent." See Klink v. Twp. Council of Monroe, 181 N.J. Super. 25, 30 (App. Div. 1981) (noting that while the courts generally will not supply terms that the Legislature omits, "courts can supply apparent omissions in statutes") (internal quotation marks and citation omitted). The same principle should apply to interpretation of a tariff, perhaps with greater liberality than in cases dealing with statutes.
Courts should be reluctant to supply terms apparently omitted by the Legislature out of respect for a co-equal branch of government. Howell Twp. v. Manasquan River Reg'l Sewerage Auth., 215 N.J. Super. 173, 181 (App. Div. 1987) (stating "courts must refrain from usurping the function of the Legislature when its intent is clearly expressed"); see also Prop. Owners Ass'n of N. Bergen v. Twp. of N. Bergen, 74 N.J. 327, 338 (1977) (stating that courts should avoid usurping legislative function of municipal body by filling gaps in an ordinance "where the path is not clear"). The same considerations do not apply with equal force to a tariff, which is proposed by a public utility and approved by the regulating agency. See In re Revision of Rates Filed By Toms River Water Co., 82 N.J. 201, 208 (1980) (discussing the Board's authority over tariffs).
Pennsville Travel argues that AC Electric intentionally assumed the burden of relocating above-ground utilities when requested by non-governmental entities because it is generally less costly than relocating below-ground utilities. The argument lacks any support from the administrative history of the tariff. It also fails to explain the surplus language in section 9.7, or what would be the disparate treatment of governmental entities under its interpretation.
Pennsville Travel offers no plausible reason why the tariff's drafter would have charged governmental entities for relocating above- and below-ground utilities, and charged non-governmental entities for relocating below-ground utilities, but intentionally left unaddressed the charges for relocating above- ground utilities as requested by non-governmental entities. We therefore conclude the omission was inadvertent and shall supply the omitted terms. Consequently, we find no merit to Pennsville Travel's argument that the tariff, by alleged silence, relieved it of responsibility for relocation costs.
In light of our interpretation of the tariff, we need not address Pennsville Travel's argument that N.J.A.C. 14:3-1.3(b) required AC Electric to address relocation costs in its tariff. N.J.A.C. 14:3-1.3(b) states that a tariff shall "[i]nclude all of the public utility's rates and charges for all services that the utility offers."
We also discern no error in the Board's determination that the common law does not relieve Pennsville Travel of financial responsibility for the pole relocation. Pennsville Travel misplaces reliance on Pine Belt Chevrolet and Fellowship Bank v. Public Serv. Elec. & Gas Co., 158 N.J. Super. 107 (App. Div.), certif. denied, 77 N.J. 503 ( 1978). Both cases draw from the Court's articulation of the common law principles of cost allocation in Port of N.Y. Auth. v. Hackensack Water Co., 41 N.J. 90 (1963). In all three cases, the utility was required to bear the cost of relocating its facilities. In contrast to the dispute before us, all three cases involved public transportation projects, and the utility's responsibility for relocation costs was grounded in the utility's use of the public right-of-way.
Pennsville Travel also relies on a Board decision, Bevin Constr. v. Jersey Cent. Power & Light Co., 2003 N.J. Agen. Lexis 683 (N.J. Adm. 2003).
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In assigning relocation costs to utilities to make way for toll-supported transportation projects, Chief Justice Weintraub explained in Port of N.Y. Auth.:
[The utility] is permitted to use the public way because it serves a public interest, but since its venture is for gain and since in any event the primary purpose of the public easement is the public's own use of it, the utility's interest in the public way is subordinate to the public's enjoyment of it. Hence the utility runs the risk that the public welfare may require changes in the road which will call for relocation of its facilities.
. . . .
[I]f government undertakes an activity in the street in the exercise of the police power, the utility must figuratively move over at its own expense to the end that the exercise of the police power will not be impeded or burdened. And this the utility must do because the law governing the basic arrangement obliges it to do so.
[Port of N.Y. Auth., supra, 41 N.J. at 96, 98.]
In Fellowship Bank, as a condition of site plan approval to build a branch office, the bank was required to dedicate to the public a right of way to permit widening of the adjoining road. Fellowship Bank, supra, 158 N.J. Super. at 109. The road widening in turn required relocation of the utility poles. Ibid. The court held the utility was responsible because the project predominantly served the public interest, and not the bank's private interests. Id. at 110-11. Relying on Port Auth. of N.Y., the court held that the utility's responsibility for the cost was "the price the utility company must pay for the privilege of location within a public right of way when the public welfare requires changes in the road which call for a relocation of facilities." Fellowship Bank, supra, 158 N.J. Super. at 111.
The Court in Pine Belt Chevrolet reaffirmed the principles enunciated in Port Auth. of N.Y. and Fellowship Bank. Pine Belt Chevrolet, supra, 132 N.J. at 572-73. "[T]he common law relieve[s] private-property owners of financial liability when the relocation of utility facilities is mandated by the public welfare." Id. at 586 (citing Port. Auth. of N.Y., supra, 41 N.J. at 96-97). By contrast, "when [the] primary beneficiary of [a] project is [a] private property owner or developer, common law assigns utility-relocation costs to that owner or developer." Id. at 572 (citing In re Petition of Cinnaminson Props., Inc. v. Public Serv. Elec. & Gas Co., N.J. Bd. of Public Utils., Docket No. 736-431 (1974)).
In Pine Belt Chevrolet, the Court was called upon to interpret N.J.S.A. 27:7-44.9, which, in derogation of the common law rule, assigned to the State relocation costs for certain highway projects of the State Department of Transportation. Pine Belt Chevrolet, supra, 132 N.J. at 566. Narrowly construing the statute, the Court held that the utility was responsible for relocation costs associated with a road widening project compelled as a condition for a grant of highway-access permits. Id. at 584-86. The Court relied on the utility's use of the public right of way, and the predominant public interest in the use of public roadways. Id. at 586.
By contrast, the utility was not held responsible for relocation costs in Jersey Cent. Power & Light Co. v. Twp. of Lakewood, 174 N.J. Super. 394 (Law. Div. 1980), aff'd o.b., 178 N.J. Super. 610, 610-11 (App. Div. 1981). As part of the economic development efforts of its municipal industrial commission, Lakewood granted the utility a right-of-way to install nine poles along the bed of a paper street, later vacated, on township land, to enable the utility to provide service to a private industrial facility nearby. Id. at 396. Lakewood thereafter sought to convey the land on which the poles were located to another private enterprise as part of the settlement of litigation with that enterprise, and sought the relocation of the poles at the utility's expense. Id. at 397-98.
The trial court denied the township's application, and we affirmed, adopting the trial court's reasoning. The trial court determined that no predominant public interests were involved. Id. at 401. Further, the trial court found no distinction between the case before it, and the expansion of a public building that required relocation of utility facilities, which the defendant conceded would not trigger a utility's responsibility to pay. Id. at 400-01.
Applying the foregoing principles, we discern no basis to disturb the Board's determination that the common law simply does not entitle Pennsville Travel to shift the relocation costs to AC Electric. In asserting that a utility must pay for facility relocation whenever a project serves a public purpose, Pennsville Travel would detach the common law rule from its moorings. A utility's cost responsibility arises out of its use of the public right of way, whether originally owned by the government, or dedicated to the public as in Fellowship Bank and Pine Belt Chevrolet. Here, AC Electric is not utilizing the public right of way. Rather, it is using a private easement.
Also, the predominant interest in compelling the relocation in Port Auth. of N.Y., Fellowship Bank, and Pine Belt Chevrolet was the public's. The projects involved the construction of public roads or other public transportation facilities. By contrast, the relocation in Jersey Cent. Power & Light, where the utility was not financially responsible, involved a private economic development project. Pennsville Travel's project likewise involves the development of private property. Although Pennsville Travel asserts vaguely that it will partner with local government in establishing the Welcome Center, the property is privately owned and there is no evidence that Pennsville Travel intends to permanently dedicate it to public use. While the Welcome Center may well serve a public need for travel information, and may indirectly promote the economy, the same may be said for many private enterprises. That is not sufficient to justify the cost shift Pennsville Travel seeks. In sum, the Board correctly determined that Pennsville Travel is responsible for the relocation costs.
We turn to Pennsville Travel's procedural arguments. The Board rejected Pennsville Travel's argument that the utility should bear the burden of proving the reasonableness of the relocation costs because they constituted a proposed increase, change, or alteration of rates or charges. See N.J.S.A. 48:2-21(d) (stating that public utility bears "burden of proof to show that the increase, change or alteration is just and reasonable"). The Board held that the relocation costs fell outside the scope of the statute, which involves changes in already approved charges, not the challenge to a cost estimate for facility relocation. We discern no basis to disturb the Board's interpretation.
We also find no merit to Pennsville Travel's contention that its procedural rights were violated when the ALJ proceeded with the hearing, notwithstanding the non-disclosure of the bid package. The ALJ found that the bid package was to be disclosed only in the context of settlement discussions. Pennsville Travel has not provided record evidence to the contrary. In any event, as the ALJ noted, Pennsville Travel raised no objection regarding the non-disclosure during the two months preceding the hearing. We discern no error in the Board's determination that the ALJ properly denied Pennsville Travel's eleventh hour request for the bid package, and an adjournment.
Moreover, as the Board found, Pennsville Travel had ample opportunity to present its own expert opinion on the reasonable cost of the relocation. As a result of its failure to go forward with expert testimony regarding the reasonableness of AC Electric's estimate, the utility's estimate was unchallenged. Pennsville Travel's remaining arguments lack sufficient merit to warrant discussion in a written decision. R. 2:11-3(e)(1)(E).
Finally, we briefly address AC Electric's cross-appeal. AC Electric argues that Pennsville Travel's challenge to its cost estimate was not ripe, and the Board lacked jurisdiction to adjudicate it. We are unpersuaded.
The purpose of the ripeness doctrine is to avoid premature adjudication of abstract disagreements. House of Fire Christian Church v. Zoning Bd. of Adjustment, 379 N.J. Super. 526, 547 (App. Div. 2005). A court looks to the fitness of the issues for judicial review, and the hardship to the parties if review is denied. Comm. to Recall Robert Menendez from the Office of U.S. Senator v. Wells, 204 N.J. 79, 99 (2010). The dispute here was not premature. The determination of the reasonableness of an estimate may affect whether a property owner goes forward with a development or not. The refusal to consider the matter could work a hardship to the property owner, if forced to contest the cost only after it was incurred. Moreover, as AC Electric's own submissions demonstrated, the costs were susceptible to reasonable estimation.
As for AC Electric's jurisdictional argument, the Board has broad regulatory authority over a utility's service, charges, fees, and facility relocation. See N.J.S.A. 48:2-13; N.J.S.A. 48:2-19; N.J.S.A. 48:2-20(c); and N.J.S.A. 48:2-21(a). We rejected a similar jurisdictional argument in Fellowship Bank, supra, 158 N.J. Super. at 110. AC Electric has presented no persuasive argument for our revisiting that determination.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION