Farmland is Not a “Brownfield,” So Application to Construct Solar Facility on Farmland Failed

In re Implementation of L. 2012, c. 24, 443 N.J. Super. 73 (App. Div. 2015).  The Solar Act of 2012 (“the Act”), chapter 24 of the Laws of 2012, amended prior legislation to encourage the installation of solar energy projects on contaminated sites (known as “brownfields”) that might otherwise remain unproductive, while discouraging such development on farmland and open space.  Millenium Land Development, the contract purchaser of land most recently used as an apple orchard, applied to the Board of Public Utilities (“BPU”) under subsection (t) of the Act to develop a solar power generation project on the property.  Subsection (t) affords subsidies and other benefits to applicants who seek to build solar facilities on brownfields, and Millenium claimed that its property was a brownfield because agricultural pesticides had been used there, allegedly leaving lead and arsenic in the soil.

The BPU, however, consulted with the Department of Environmental Protection, and determined that no contaminants had been discharged onto the property, so that it was not a brownfield as defined by the Solar Act.  Instead, the property was farmland, which was subject to subsection (s) of the Act, not subsection (t), and was therefore ineligible for the benefits that Millenium desired.  Millenium appealed to the Appellate Division, but that court today affirmed the BPU’s decision in a ruling by Judge Reisner.

Judge Reisner noted the familiar, deferential standard of review of agency actions.  Those actions are entitled to a presumption of validity, and are not to be overturned unless they are “arbitrary, capricious, unreasonable, or beyond the agency’s delegated powers.”

Here, the plain language of subsection (s) made clear that it covered solar projects on farmland and, in accordance with the Legislature’s intent to discourage solar development on farmland and open space, “[p]rojects to which subsection (s) applies must satisfy a more stringent set of criteria than applications which are subject to subsection (t).”  And there was no doubt that the subject property was farmland, since it had been “valued, assessed and taxed as farmland” in the recent past.  Millenium had also obtained development approvals to construct residential uses on the property, so that the land was not an otherwise unproductive brownfield.

Judge Reisner found that all of Millenium’s appellate arguments were without sufficient merit to warrant further discussion, citing Rule 2:11-3(e)(1)(E), the “that’s ridiculous” rule.  Normally, opinions that do not adjudicate any potentially valid legal arguments do not merit publication.  Presumably, this opinion was published because it quoted the BPU’s guidance to future applicants that solar projects on land that “has been actively devoted agricultural or horticultural use that is valued, assessed and taxed” as farmland at any time since July 2002 will not qualify as a brownfield and will not be eligible for subsection (t) benefits.