PUBLIC SERVICE ELECTRIC AND GAS COMPANY v. NEW JERSEY POWER LINE NEIGHBORS COALITION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6439-08T16439-08T1

PUBLIC SERVICE ELECTRIC

AND GAS COMPANY,

Plaintiff-Respondent,

v.

NEW JERSEY POWER LINE NEIGHBORS

COALITION, TOWNSHIP OF CINNAMINSON,

a municipal corporation of the

State of New Jersey; CINNAMINSON

TOWNSHIP ZONING BOARD OF ADJUSTMENT;

and JOHN MARSHALL, Cinnaminson Township

Zoning Officer,

Defendants-Appellants.

________________________________

 

Argued January 6, 2010 - Decided

Before Judges Graves, Sabatino and Newman.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-1268-00.

Patrick F. McAndrew argued the cause for appellant New Jersey Power Line Neighbors Coalition.

Parker McCay, P.A., attorneys for appellants Township of Cinnaminson; Cinnaminson Township Zoning Board of Adjustment; and John Marshall, join in the brief of appellant New Jersey Power Line Neighbors Coalition.

David K. Richter argued the cause for respondent Public Service Electric and Gas Company (Law Offices of William E. Frese, attorneys; Mr. Richter, on the brief).

Anne Milgram, Attorney General, attorney for

respondent Board of Public Utilities (Geoffrey R. Gersten, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

On leave granted, defendant New Jersey Power Line Neighbors Coalition ("the Coalition"), a group of homeowners in Cinnaminson Township residing near electric power lines of plaintiff, Public Service Electric and Gas Company ("PSE&G"), appeals an order of the Law Division dated August 10, 2009. The order in question rejected the Coalition's claim that a January 2002 Consent Order exempted its members' properties from more stringent tree trimming and vegetation management regulations adopted by the Board of Public Utilities ("BPU"). PSE&G relies upon the BPU regulations, which have been strengthened in certain respects since the time that the Consent Order was issued in 2002, as authority to perform such trimming and vegetation activities on the homeowners' premises. PSE&G also contends that the trial court's order properly recognizes paramount public safety considerations, and the dangers to the public posed by trees and other vegetation encroaching upon or near its power lines.

For the reasons explained in this opinion, we affirm the Law Division's order, with some limited modifications. We also defer further factual disputes concerning the prospective trimming and vegetation management upon the subject properties to the primary regulatory jurisdiction of the BPU, pursuant to Boss v. Rockland Elec. Co., 95 N.J. 33, 41 (1983), with the trial court continuing to have jurisdiction over any open legal issues.

I.

The record presents the following circumstances and chronology of events pertinent to our consideration of the issues on appeal. The discrete issues before us are essentially legal and regulatory in nature, and the facts relating to those issues are substantially undisputed.

Beginning in the 1930s, PSE&G acquired various 150-foot easements on numerous properties located in Cinnaminson Township. Each of the easements grants PSE&G a right-of-way to construct and maintain high voltage electric transmission lines. PSE&G currently maintains two such electric transmission lines on the easements, which respectively carry 230,000 volts and 138,000 volts each. According to PSE&G's brief, these power lines not only serve customers in New Jersey but "impact the entire electric grid in the Northeast."

The easements expressly grant PSE&G the right to "trim, cut[,] and remove all trees, buildings and other structures or obstructions now or hereinafter existing thereon[.]" The easements do contain exceptions for non-interfering fruit trees up to a height of twenty feet in certain areas, or up to a height of fifteen feet in other areas.

Since the 1960s, Cinnaminson has developed from a mainly rural locale to a suburban one. Consequently, PSE&G's easements in Cinnaminson no longer typically pass through fields and orchards, but instead traverse approximately two hundred modestly-sized residential lots. The original center lines of the easements are now the rear lot lines on many of the affected homes, so that two interstate electrical transmission lines run through many residential backyards. PSE&G contends that all of the affected homeowners within the Coalition purchased their homes "with the knowledge that a high-voltage transmission line right-of-way ran through their rear yards."

In 2000, PSE&G began cutting trees and removing improvements within the dimensions of the easements. After residents complained, the Township of Cinnaminson issued a stop work order. PSE&G responded by filing an action in the Law Division in May 2000 against the Township, its Zoning Board of Adjustment, and the Township's zoning officer. The trial court permitted homeowners seeking to maintain their sheds and other encroachments within the easements to intervene in the action and to file answers.

A settlement agreement in the litigation filed by PSE&G was eventually reached by the parties in late 2001. PSE&G sought to bind all property owners in the easement, not just the specific intervening homeowners, to the parties' settlement. Therefore, at PSE&G's request, Assignment Judge John Sweeney required notice of the proposed settlement to all affected landowners, and scheduled a fairness hearing for November 2001. Written notice of the settlement and hearing was sent to all individual property owners affected by the easements and duplicate notice was published in a local newspaper. The notice advised, in pertinent part, that it was "intended to inform all interested parties of the [c]ourt's review of the [p]roposed settlement plan and the establishment of certain restrictions on certain easement maintenance initiatives and use of the [r]ight[-]of[-w]ay between PSE&G and property owners along the [r]ight[-]of[-w]ay in the Township of Cinnaminson." The fairness hearing before Judge Sweeney took place on November 26, 2001.

On January 7, 2002, Judge Sweeney issued a written opinion, accompanied by a Final Order Approving Settlement ("the Consent Order"), approving the settlement terms. Subject to certain conditions, the Consent Order permitted the affected residents to retain many of their improvements, trees, and landscaping within the PSE&G right-of-ways. The Consent Order generally permitted structures existing on the affected properties as of May 5, 2001_the date that PSE&G had filed its complaint_to remain. However, it required homeowners to obtain prior written consent from PSE&G, as well as Township approval, before installing new structures and obstructions, or modifying existing ones, within the PSE&G easements. Further, the Consent Order allowed PSE&G to deny consent to a homeowner if the denial was related to the "safety of the residents; the safety of PSE&G personnel or equipment; the operational needs of the transmission system; and/or transmission system reliability."

With respect to tree trimming, the Consent Order allowed PSE&G to maintain a thirty-foot trimming and topping "clearance envelope" between the tops of trees and the lowest "sag point" of the overhead wires, based on regulations of the Occupational Safety and Health Administration ("OSHA").

With regard to vegetation, the Consent Order approved an attached list of slow-growing and low-growing trees and shrubs that could be planted inside the right-of-way, "except for [on] the designated [fourteen-foot] access path and [at] the bases of towers or poles." The Consent Order specifically noted that "[n]othing may be planted in the [r]ight[-]of[-w]ay, however, within [fifty feet] of the centerline of the bases of towers and/or poles . . . and/or within the [fourteen-foot] access path at any time[,] unless PSE&G waives this specific prohibition in writing[.]"

Further, paragraph six of the Consent Order allowed for: "[f]uture topping and trimming . . . in accordance with the requirements of the National Electric Safety Code, OSHA, and other nationally recognized regulations, as they now exist or may be amended in the future." In addition, the Consent Order outlined a process for notifying homeowners of "non-emergent tree and vegetation maintenance":

10. Future, periodic non-emergent tree and vegetation maintenance will be the subject of prior notice to homeowners as required by statute. The notice will be a minimum of 20 calendar days. The notice will reasonably describe the proposed work or advise homeowners that a plan of the proposed work is on file with the Township clerk and may be inspected. During the 20 day time frame, PSE&G will also provide to the Township governing body an informal presentation of the proposed work, and the notice to homeowners shall state the time, date and place of the informal presentation.

Judge Sweeney noted in the Consent Order that the court had "balanced the relative interests of the parties and the public" and "found the settlement agreement to be fair and reasonable in all respects . . . [.]"

The settlement between the parties was implemented without apparent controversy for several years. However, the regulatory context substantially changed after August 14, 2003, when a tree came into contact with an electric transmission line in Ohio. That incident triggered a major multi-state power failure, leaving more than fifty million people in the United States without electric power. Following this national episode, the United States Department of Energy issued a report instructing states to create new regulations for vegetation management near power lines. Consequently, on December 18, 2006, the BPU responded by promulgating transmission line vegetation management regulations, N.J.A.C. 14:5-9.6, pursuant to its statutory authority under N.J.S.A. 48:2-12.

The BPU regulations addressing vegetation management were initially made effective on March 17, 2008. Thereafter, on May 8, 2008, the BPU announced its intention to revise the specific provisions of N.J.A.C. 14:5-9, in "consideration of reduced requirements surrounding agricultural crops, as well as additional discretion for utilities within the [r]ight[-]of[-w]ay border zone."

Following a period of public comment, the most recent amendments to the BPU's vegetation management regulations were adopted on December 17, 2009, and published in the New Jersey Register on January 19, 2010. See 42 N.J.R. 508(a). The BPU received and considered the input of more than one hundred commenters prior to adoption, including several residents of Cinnaminson. Id. at 508-09.

In essence, the BPU's updated regulations implicated by this appeal limit vegetation growth within the area of a transmission line right-of-way in two crucial respects. First, the present regulations prohibit "woody plants that mature above three feet tall"_except for agricultural crops that naturally mature at twelve feet or less_in the so-called "wire zone." N.J.A.C. 14:5-9.6(c)(1) and (2). Second, the regulations generally require the utility to apply "integrated vegetation management" ("IVM") in the so-called "border zone" near the transmission line. N.J.A.C. 14:5-9.6(d). The regulations also require utility companies to ensure that "[c]learing under transmission lines shall be wide enough within the [utility's] right[-]of[-]way so that no vegetation or parts of vegetation will grow or fall into the transmission lines[.]" N.J.A.C. 14:5-9.6(e)(1). In adopting the most recent amendments, the BPU stated that the amended rules allow the utility to leave trees over fifteen feet tall in the border zone, but only "if the trees are consistent with accepted industry practices for integrated vegetation management around electric lines." 42 N.J.R. 508.

Meanwhile, in 2007, five years after the parties' settlement was approved in the Consent Order, PSE&G initiated a program of vegetation maintenance. The program was designed to comply with the BPU regulations, as they were initially adopted in December 2006. PSE&G was required to implement the new BPU regulations or potentially face $100 per-day fines for noncompliance under N.J.A.C. 14:5-9.10. This new initiative by PSE&G re-ignited the dispute between the utility and homeowners in the Coalition.

On June 25, 2009, the Coalition filed a motion in aid of litigants rights in the Law Division, seeking to temporarily stay the new vegetation management program. The Coalition asked the trial court to: (1) allow PSE&G to move and show cause why the Consent Order should be modified or set aside; (2) allow for a new fairness hearing, if necessary; and (3) obtain a ninety-day period of limited discovery on the new program, in anticipation of a motion by PSE&G. The Coalition asserted that PSE&G's proposed remedial work threatened "the imminent destruction of the neighbors' trees, landscaping and improvements."

Assignment Judge Ronald Bookbinder, who replaced Judge Sweeney after the latter's retirement, ordered an interim stay of the new PSE&G program on July 9, 2009, prior to the return of the order to show cause. The Township of Cinnaminson filed papers in support of the Coalition's motion. Judge Bookbinder also allowed the BPU an opportunity to participate in the motion proceedings, which the BPU declined.

After hearing the order to show cause on August 10, 2009, Judge Bookbinder denied the Coalition's motion for relief in its entirety. However, the judge granted defendants a limited temporary stay through August 26, 2009. The stay permitted PSE&G to continue maintenance under the terms of the Consent Order and also to perform "any emergent cutting reasonably necessary for protecting and maintaining service under [the Consent Order]." The stay also did not preclude PSE&G from maintaining a thirty-foot "tree clearance envelope" as contemplated by the Consent Order. The Coalition filed a notice of appeal on August 17, 2009, and it applied to this court for an emergent appellate stay that same day.

While the emergent appellate stay application was pending, Judge Bookbinder submitted a four-page letter of expanded findings of fact and conclusions of law pursuant to Rule 2:5-1(b) on August 25, 2009. Later that day, this court extended the trial court's limited temporary stay on an emergent basis, thereby preserving the status quo. We also accelerated the appeal, sua sponte. Our order also required service of the parties' briefs on the Office of the Attorney General, which represents the BPU.

In his expanded written findings and conclusions pursuant to Rule 2:5-1(b), Judge Bookbinder referred to and relied upon an affidavit submitted on behalf of PSE&G by Richard Wolowicz. Wolowicz is a certified tree expert and arborist, who has handled vegetation management issues for PSE&G for twenty years. Wolowicz stated in his affidavit that, in the wake of the Ohio incident, the BPU enacted vegetation management regulations "in an effort to minimize the possibility that New Jersey or the metropolitan area would experience another blackout such as the one experienced in the summer of 2003."

Wolowicz further noted that in May 2009, PSE&G had sent certified letters to all residents in Cinnaminson located within its right-of-way, advising that the utility would be commencing vegetation maintenance the following month pursuant to the new BPU regulations. He also indicated that a three-hour presentation had been made by PSE&G to the Township Council on June 3, 2009, detailing PSE&G's maintenance plans and its legal obligations to comply with the BPU's regulations. On that occasion, PSE&G representatives "answered questions from residents and explained the 'wire zone' and 'border zone'" limitations to them.

In his affidavit, Wolowicz further recounted that he had personally walked the PSE&G easements in Cinnaminson, and that, based on his personal knowledge, the conditions present there violated both the existing and proposed BPU regulations. In particular, Wolowicz asserted that there are currently "hundreds of trees in the wire zone that exceed three (3) feet in height." He noted that there are also "hundreds of trees in the border zone that are 'incompatible' under Integrated Vegetation Management standards because those trees can grow to a height which could either fall over or interfere with the high voltage transmission lines."

In light of these observed conditions, Wolowicz asserted that if PSE&G did not perform vegetation management in the right-of-way, as required by the BPU regulations, "there is an imminent danger that a tree could make contact [with] the high voltage transmission lines." Such contact, according to Wolowicz, "could cause a power outage to hundreds of thousands of residents in New Jersey." If one of those lines were tripped during the "summer peak load periods," Wolowicz attested, "residents throughout the State and the metropolitan area could experience rolling blackouts."

Judge Bookbinder substantially relied on Wolowicz's assertions to conclude that PSE&G was faced with an emergency and thus had proven the need to deny the Coalition's requested stay. The judge specifically found that "existing conditions create an imminent danger of [a power] outage due to the present vegetation."

Further, Judge Bookbinder reasoned that paragraph six of the Consent Order, when considered in tandem with "the importance of public safety," mandated PSE&G's compliance with the new BPU regulations. He acknowledged that the Consent Order did confer upon the landowners a form of "land right" that arguably could be excepted from the BPU's regulations. See N.J.A.C. 14:5-9.6(f)(1). However, the judge concluded that:

While the January 7, 2002 Order does confer some type of "land right," this right is trumped by public safety and does not fall within the exception to the BPU Regulations . . . . Paragraph Six (6) of the Consent Order clearly contemplates all future vegetation management being subject to all "other nationally recognized regulations" as amended in the future . . . [.] The Consent Order provided that vegetation management was subject to regulation changes and the BPU did in fact amend its Vegetation Management Standards.

[(Emphasis added, internal citations omitted).]

The judge continued:

Paragraph Six (6) of the Consent Order, when considered with the importance of public safety, mandates that PSE&G must comply with the new Vegetation Management Standards and are not exempt from compliance by the Consent Order. Additionally, PSE&G may be fined up to $100 per day per violation. Presently, hundreds of trees in the wire zone exceed the Vegetation Management Standards required height of three (3) feet. Therefore, PSE&G is not violating the January 7, 2002 Consent Order with any tree removal conducted pursuant to BPU Regulation[s].

Additionally, . . . . PSE&G met all of the notice requirements specified in the January 7, 2002 Order. These notice provisions provide further proof that future vegetation maintenance was in fact contemplated by the Consent Order.

[(Emphasis added).]

Judge Bookbinder further noted that both mitigation and an individualized homeowner appeal process had been explored as potential options at oral argument. These processes, the judge noted, might allow the planting of smaller trees and shrubs on the subject properties within the easement boundaries. The judge further noted that affected owners might also participate in some form of mediation or arbitration if they disputed PSE&G's specific maintenance and trimming plans for their individual properties.

PSE&G asserts that the current physical conditions near its power lines in Cinnaminson violate both the current and then-proposed (now-enacted) BPU regulations, codified at N.J.A.C. 14:5-9.6(e). These apparent violations, according to PSE&G, expose the utility to regulatory fines up to $100 per day per violation under N.J.A.C. 14:5-9.10. PSE&G further notes its potential exposure to exponentially greater fines, should it experience an outage caused by a tree contact. Such fines would be levied by the North American Electric Reliability Corporation, the self-regulatory organization designated by the Federal Energy Regulatory Commission to enforce standards for power system operation. North Am. Elec. Reliability Corp., 116 F.E.R.C. P61,062 (2006); 18 C.F.R. 39 (2009).

Plaintiffs appeal, contending that the trial court improperly denied their request for relief. They contend that the trial court's adverse ruling on their order to show cause, in effect, strips them of important rights that they bargained for in settling the case and entering into the Consent Order. They assert that they will suffer irreparable harm on their properties if trees are removed and vegetation is cut by PSE&G in pursuit of its vegetation maintenance program, and that the BPU's subsequently-enacted regulations do not impair their rights under the Consent Order.

II.

The pivotal issue before us is whether the Consent Order insulates the homeowners in the Coalition from prospective compliance with BPU tree-trimming and vegetation management regulations.

At the outset of our analysis, we acknowledge that the members of the Coalition have real and substantial interests as homeowners in the use and enjoyment of their backyards. We recognize that several of the homeowners maintain storage sheds, basketball courts, swimming pools, and other useful and recreational structures in the rear of their premises. We also recognize that the homeowners have cultivated trees, shrubs, and other plantings that enhance the beauty of their surroundings and that also serve to buffer their views of the metal structures and wires that carry PSE&G's high-voltage electric current. We fully appreciate that no one would rather look at a power line from their backyard porch or patio than a grove of trees or a patch of greenery.

We also are cognizant of the strong and longstanding social values that favor the settlement of litigation. "'[T]he settlement of litigation ranks high in our public policy.'" Brundage v. Estate of Carambio, 195 N.J. 575, 601 (2008) (quoting Jannarone v. W.T. Co., 65 N.J. Super. 472, 476 (App. Div.), certif. denied, 35 N.J. 61 (1961)). Settlements provide a measure of repose and finality to disputes that would otherwise persist and burden the litigants and our court system if they were not amicably resolved. We are mindful that Judge Sweeney conducted the fairness hearing before approving the Consent Order in 2002 for these laudable purposes.

That being said, the homeowners do not have immutable legal authority to use their premises in any manner that they see fit. Their fee-simple interests are subject to the recorded easements and associated rights-of-way that were granted to PSE&G. Tide-Water Pipe Co. v. Blair Holding Co., Inc., 42 N.J. 591, 604 (1964). A "landowner may not, without the consent of the easement holder, unreasonably interfere with the latter's rights or change the character of the easement so as to make the use thereof significantly more difficult or burdensome." Ibid.

Moreover, the protections within the Consent Order that further construed and clarified the rights afforded under easements are subject to the overarching application of state and federal law. A consent decree or consent order is fundamentally "'an agreement that the parties desire and expect will be reflected in, and be enforceable as, a judicial decree that is subject to the rules generally applicable to other judgments and decrees.'" Toll Bros. v. Twp. of West Windsor, 334 N.J. Super. 77, 99 (App. Div. 2000), certif. denied, 168 N.J. 295 (2001) (quoting Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 378, 112 S. Ct. 748, 757, 116 L. Ed. 2d 867, 883 (1992)). The Consent Order negotiated here between the litigants in this case could not and does not insulate them from the requirements of statutes, regulations and ordinances that have general and widespread application. Those codified laws have been enacted for the benefit of the people as a whole to advance what we perceived to be desirable public policies.

Pursuant to its enabling statute, the BPU must ensure that utility customers in this State receive "safe, adequate[,] and proper service." N.J.S.A. 48:2-23; see also Boss, supra, 95 N.J. at 41. As the Supreme Court observed in Boss, "[t]here is an unavoidable relationship between the feasibility of a utility's right-of-way maintenance program and its reasonableness in light of the utility's statutory obligation to render safe, adequate[,] and proper service." Boss, supra, 95 N.J. at 41. These obligations at times necessitate that trees interfering with a public utility's right-of-way be cut down and shrubbery encroaching upon the safe usage of a power line be trimmed.

In revising its regulations since the 2003 Ohio incident, the BPU has "crafted the rules to minimize impacts on property owners while continuing to protect the transmission lines." 42 N.J.R. 509 (response to public comment 3). The BPU states that it has attempted "to choose the best possible balance between the esthetic interests of property owners and the need for reliable electric service." 42 N.J.R. 510 (response to public comment 6). Addressing the need to upgrade the regulations from their earlier adoption in 1972, the BPU has noted:

The 1972 rules were promulgated by the Board based on the electric lines and technologies then in use, and the electric reliability standards that applied at that time. Since 1972, power lines have become much larger, and the number of customers each line serves has increased exponentially, especially in New Jersey, the most densely populated state in the country. Furthermore, regionalization of power grids has linked power lines in regional networks, such that an outage in one place can have a dramatic ripple effect, as was observed in the 2003 outage that began in Ohio and affected huge numbers of customers up through the New England region. Therefore, the 1972 rules are no longer adequate, and the Board has updated the vegetation management rules accordingly.

[ 42 N.J.R. 512 (response to public comment 22).]

On the other hand, the BPU apparently has endeavored to be sensitive to the interests of property owners, environmentalists, and other affected persons by, among other things, revising the initial prohibition on all vegetation taller than fifteen feet in the border zone and instead utilizing the more flexible IVC standards. See 42 N.J.R. 509-10 (response to public comment 3).

Significantly, the BPU regulations contain a qualified exception to the requirements of N.J.A.C. 14:5-9.6(d) and (e) for certain pre-existing "written land rights" affecting a utility's right of way. The exception, as set forth in subsection (f), reads:

Notwithstanding (d) and (e) above, an EDC may leave trees and other woody vegetation within the transmission right of way under any of the following conditions:

1. The right-of-way document, easement, indenture, deed or other written land rights, executed before Jan[uary] 1, 2007, expressly permit vegetation to be located within the transmission right[-]of[-]way;

2. The slope of the topography exceeds [thirty] degrees and the transmission right[-]of[-]way is such that the tree or other vegetation at mature height will allow a space of more than 150 percent of the clearance requirements for an electrical path to ground, as set forth in the National Electric Safety Code, 232 to 235; or

3. Trees [that] are located within an inactive transmission corridor and at mature height will allow a space of more than 150 percent of the clearance requirements for an electrical path to ground set forth in the National Electric Safety Code, 232 to 235.

[N.J.A.C. 14:5-9.6(f) (emphasis added).]

Apart from a "right-of-way document," an "easement," an "indenture," or a "deed," the regulations do not specifically define what otherwise constitutes an eligible "other written land right" that could relieve the public utility of its obligations to clear or trim trees and other woody vegetation within its right of way. See N.J.A.C. 14:5-9.6(f). In his supplemental letter-brief submitted to us after argument, the Deputy Attorney General representing the BPU cites to no reported legislative history that sheds light on the meaning of this term, but acknowledges that the phrase "other written land right" does "not necessarily require recording or other such procedures." However, the Deputy Attorney General asserts that the BPU "did not intend for every document or letter, executed prior to January 1, 2007, which discusses vegetation management, to qualify" under the subsection (f) exemption. Rather, the BPU submits that an examination of the applicability of the exception must be made "on a case-by-case basis."

The Coalition argues that the Consent Order comprises an eligible "other written land right," even though it is not recorded as a document of title. The Coalition also points out that the Consent Order, which was issued in January 2002, predates the January 1, 2007 cutoff date specified in subsection (f)(1) of the BPU regulation. Although PSE&G disputed the Coalition's legal characterization of the Consent Order, Judge Bookbinder accepted the Coalition's position and concluded that the Consent Order did confer "some type of 'land right'[.]" However, the judge ultimately concluded that the Coalition members' asserted land rights were "trumped by public safety and [do] not fall within the exception to the BPU [r]egulations."

As a matter of law, we agree with the Coalition that the Consent Order satisfies the likely intended meaning of the term "other written land rights," as it appears in N.J.A.C. 14:5-9.6(f)(1). In reaching that reasonable conclusion, we are aided, although not bound by, the administrative agency's interpretation of the meaning of its own rule, as expressed to us through the Attorney General as the State's legal adviser. It is appropriate and customary for us to give deference to the agency's construction of its regulations promulgated under the agency's enabling statute and which the agency is charged to enforce. See Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001). If the regulations were intended only to cover recorded instruments of title such as deeds and easements, it could have been drafted to embrace only "other recorded land rights" rather than "other written land rights."

Moreover, the surrounding context that led to the Consent Order in 2002 reasonably indicates that the litigants expected and intended that the terms of the Consent Order specifically affected the homeowners' land rights and the future use and interpretation of the utility's recorded easement and right-of-way. For example, if one of the property owners within the Coalition sold his or her home to another person, there would have been a reasonable expectation that the homeowner's rights under the Consent Order would run with the land and be conveyed to the successor-in-title. To conclude otherwise would create a patchwork of differing rules and obligations along the right-of-way, depending upon which homes within it were conveyed and which were retained as time progressed.

In Boss, supra, the Supreme Court articulated the judiciary's proper rule in determining such legal issues in a utility's vegetation-trimming context. The public utility in that case, Rockland Electric Company ("Rockland"), sought to conduct a "selective removal" program to clear its easement of any trees that had the capacity to grow to the height of Rockland's transmission wires. Boss, supra, 95 N.J. at 36. Rockland acquired its easement in 1927, before the land was developed. Years later, the land was subdivided and the plaintiffs in Boss bought plots containing single-family homes, subject to the easement. Id. at 36-37. At the time the plaintiffs bought their homes, the easement area contained "trees, shrubbery and underbrush[.]" Id. at 37. When Rockland started to pursue its trimming program, the homeowners sought an injunction, contending that the easements did not authorize that activity. Meanwhile, Rockland relied upon BPU regulations that it contended authorized the trimming and cutting, in order to ensure safe continued electric service. The dispute thus raised the question of whether the BPU, as the relevant administrative agency, should exercise primary jurisdiction over the matter, or whether the matter instead should be resolved in the courts. Ibid.

The Court held in Boss that, while the BPU had primary jurisdiction to make factual determinations within its regulatory purview, the legal issue of whether the easements did or did not authorize the utility's tree trimming activities was a legal question for the court. Id. at 41-42. Exercising that authority to resolve the legal issue, the Court "determined as a matter of law that selective removal of certain trees is within the contemplation of the easement language." Id. at 42. Having done so, the Court remanded the matter to the trial court "for reference of the factual issues to the [BPU]." Ibid. That disposition recognized the "Board's expertise" with such factual issues. Ibid. The Court further instructed:

Courts should be sensitive to purported legal claims that are really regulatory issues and should be referred to the agency. The legal dispute here was genuine. We hold only that where the resolution of a contested legal issue properly brought before a court necessarily turns on factual issues within the special province of an administrative agency, the court should refer the factual issues to that agency. The trial court should accept the factual determinations of the agency and lay them against the legal issues to be resolved and enter its final judgment resolving the mixed questions of law and fact based upon the agency fact finding.

[Ibid.]

In the present case, the trial court similarly and properly reached a legal conclusion, i.e., that the Consent Order comprised a "written land right" within the meaning of N.J.A.C. 14:5-9.6(f)(1). We affirm that discrete determination, for the reasons that we have already stated. But the resolution of that question of law does not end the analysis and compel a conclusion that the Coalition members are fully insulated from the BPU's present vegetation management regulations. In fact, the terms of the Consent Order itself point us back to the BPU's administrative regulations.

In particular, as we have already noted, paragraph six of the Consent Order specifies that "[f]uture topping and trimming will be in accordance with the requirements of the National Electric Safety Code, OSHA and other nationally recognized regulations, as they now exist or may be amended in the future." To the extent that the present controversy involves "topping and trimming," the Consent Order contemplates that it is subject to pertinent regulations.

The record lacks any indication that the discrete requirements codified in the present version of N.J.A.C. 14:5-9.6 in its entirety are not "in accordance with the National Electric Safety Code, OSHA, or other nationally recognized regulations." With respect to the Integrated Vegetation Management (IVM) standards that are now to be applied by utilities in the border zone, they are described in the BPU's regulations as "a best management practice conveyed in the American National Standard for Tree Care Operations, Part 7 (ANSI 2006) and the International Society of Arboriculture's Best Management Practices: Integrated Vegetation Management (Miller 2007)." N.J.A.C. 14:5-9.6(d) (emphasis added). We are satisfied that these IVM standards are the kind of "nationally recognized" standards contemplated by paragraph six of the Consent Order.

We cannot tell, however, on the present record, whether any other facets of N.J.A.C. 14:5-9.6 are alleged by the Coalition to lack support from "nationally recognized" standards. Nor can we ascertain on the present record whether any of the vegetation management practices contemplated by PSE&G and the BPU fall outside of the intended meaning of the "future trimming and topping" contemplated in paragraph six of the Consent Order. In addition, the "other written land rights" language set forth in N.J.A.C. 14:5-9.6(f)(1) may only create an exception for compliance with subsections (d) and (e), and may not necessarily create an exception for the other portions of the regulations, including the "wire zone" height restrictions in subsection (c). Consequently, these and any other residual legal issues may need to be resolved in this case, beyond the now-settled question of whether the Consent Order comprises a "written land right" under N.J.A.C. 14:5-9.6(f)(1).

Because these other potential legal issues persist, we cannot with confidence on the present record conclusively affirm the trial court's determination that the Coalition's claims of right were entirely subordinate to the BPU regulations and to the public interest. We have no difficulty, however, in affirming Judge Bookbinder's sound determination to deny the Coalition the preliminary injunctive relief they had originally sought, particularly since their claims of immunity, given the language of paragraph six of the Consent Order, are not manifestly clear. We also appreciate why the judge relied upon public safety factors in his analysis, given the uncontroverted expert affidavit from Wolowicz.

We therefore dissolve the emergent appellate stay that has been in place pending this appeal, effective twenty days from this order, and remand this matter for further proceedings. In dissolving the appellate stay, we do not assume that either the BPU or PSE&G will act precipitously. Instead, we envision that the dialogue between the utility, the agency, and the Coalition members will continue on a case-by-case (and perhaps, in some instances, a tree-by-tree and bush-by-bush) basis. The trial court is well equipped to fashion injunctive measures to respond to issues as they may arise.

Consistent with the Supreme Court's direction in Boss, we determine that at this stage of the dispute, it is best that the ongoing controversy primarily be entrusted to the BPU for appropriate regulatory action and factual development. Any legal issues that can arise can be identified by the parties and reserved for the trial court. Such an approach will take advantage of the BPU's expertise, particularly in reference to the botanical, environmental, electrical, and other technical matters that are involved. While the matter is within the BPU's primary jurisdiction, the trial court shall maintain the prerogative to issue injunctive orders or, if critical to the regulatory process, decide any discrete legal issues that may require immediate judicial attention.

Consequently, following the pathway forged by the Court in Boss, this matter is "remanded to the trial court for reference of the factual issues to the Board of Public Utilities." Boss, supra, 95 N.J. at 42. Toward that end, the trial court shall conduct a case management conference within two weeks of this order to meet with counsel and to determine if there are any legal issues that must be reserved for the court and, if so, the appropriate time for them to be heard. The trial court should explore at the conference whether the court's examination of any such open legal issues should occur prior to the reference to the BPU, concurrent with it, or after it. Any requests for emergent relief that arise during the BPU's exercise of its primary jurisdiction should be addressed in the first instance to the trial court, in light of Boss.

 
Affirmed, as modified, and remanded. We do not retain jurisdiction.

The BPU declined to participate in the proceedings in the trial court, but it participated in the present appeal through the Attorney General at this court's invitation and also submitted a post-argument brief on pertinent regulatory issues. Consequently, we have designated the BPU in the case caption as an additional "respondent."

PSE&G asserts that it does not intend to remove any fruit-bearing trees on the homeowners' properties that are at or less than twenty feet in height. In fact, PSE&G states that it is not aware of any fruit tree above twenty feet existing within the easements that are at issue in this appeal.

It is undisputed that the Township Zoning Board of Adjustment has not actively participated in this case, although it is represented by the same counsel as the Township.

The Consent Order contains a diagram that depicts the lowest sag point of the wires, which occurs when they are hot and carrying large amounts of electricity on days of high demand.

See http://www.bpu.state.nj.us/bpu/divisions/energy/veg.html, last visited, March 5, 2010.

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31

A-6439-08T1

March 15, 2010