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March 9, 2026 Get Citation Alerts Download PDF Add Note

In the Matter of a New Jersey Solar Transition

New Jersey Superior Court Appellate Division

• Citations: None known
• Docket Number: A-0686-23/A-0689-23

• Precedential Status: Non-Precedential

• Opinion

• Authorities (9)

• Cited By (0)

• Summaries (0)

• Similar Cases (326)

• PDF

Combined Opinion

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0686-23
A-0689-23

IN THE MATTER OF A NEW
JERSEY SOLAR TRANSITION
PURSUANT TO P.L. 2018, C.17.

IN THE MATTER OF THE VERIFIED
PETITION OF PLANKTON ENERGY,
LLC FOR AN EXTENSION OF
TIME TO COMPLETE PROJECT

NJSTRE1547462089 REGISTERED

IN THE TRANSITION INCENTIVE
PROGRAM – 1801 FEDERAL STREET,
CAMDEN, NJ 08105.

---

IN THE MATTER OF A NEW
JERSEY SOLAR TRANSITION
PURSUANT TO P.L. 2018, C.17.

IN THE MATTER OF REQUEST FOR
WAIVER AND EXTENSION OF
TIME TO COMPLETE
NJSTRE1547450071 IN TRANSITION
INCENTIVE PROGRAM – SOLAR
PV PROJECT FOR KIRAN PATEL.

---

Argued January 6, 2026 – Decided March 9, 2026
Before Judges Rose and DeAlmeida.

On appeal from the New Jersey Board of Public
Utilities, Docket Nos. QO22080472 and QO23030132.

Thomas B. Slocum argued the cause for appellants
Plankton Energy, LLC in A-0686-23 and Kiran Patel in
A-0689-23 (Norris McLaughlin, PA, attorneys; James
H. Laskey and Anthony P. D'Elia, of counsel and on the
briefs).

Steven Chaplar, Deputy Attorney General, argued the
cause for respondent New Jersey Board of Public
Utilities (Matthew J. Platkin, Attorney General,
attorney; Donna Arons, Assistant Attorney General, of
counsel; Steven Chaplar, on the briefs).

PER CURIAM

Petitioners Plankton Energy, LLC (Plankton) and Kiran Patel filed

separate appeals from the September 18, 2023 order of respondent New Jersey

Board of Public Utilities (BPU or Board) denying their requests for an extension

of time to complete solar energy projects registered in the Board's Transition

Incentive (TI) program. We consolidate the appeals for purposes of this opinion

and affirm.

I.

Pursuant to the Solar Act of 2012, N.J.S.A. 48:3-51 to -87, the BPU

administered the Solar Renewable Energy Certificate (SREC) program to

incentivize the development of solar energy projects in this state. N.J.S.A. 48:3-

A-0686-23
2
87. The SREC program provided payments to newly constructed solar energy

generators in the form of tradeable SRECs representing one megawatt-hour of

solar energy generated by a facility connected to the electric distribution system.

The value of a SREC was driven by the energy market. See N.J.S.A. 48:3-51.

On May 23, 2018, the Clean Energy Act (CEA), N.J.S.A. 48:3-87.9, was

enacted. The CEA directed the BPU to close the SREC program to new

applications once the BPU determined 5.1% of the kilowatt-hours sold in the

State was generated by solar electric power connected to the electric distribution

system (the 5.1% Milestone). The CEA also directed the BPU to complete a

study evaluating how to replace the SREC program once the 5.1% Milestone

was reached to encourage the continued efficient and orderly development of

solar renewable energy generating sources in the State. Ultimately, the study

recommended enactment of the Successor Solar Incentive (SuSI) program.

A. The TI Program.

On December 6, 2019, after the SREC program closed, the BPU

established the TI program, N.J.A.C. 14:8-10.1 to -10.7, to provide developers

of solar projects a bridge between the closed SREC program and the then-still-

to-be-developed SuSI program. The TI program provided eligible projects with

Transition Renewable Energy Certificates (TREC) for each megawatt-hour of

A-0686-23
3
electricity produced. The TREC incentives were specifically tailored for each

project.

The TI program began accepting registrations on May 1, 2020. Pursuant

to the TI program's regulations, a solar developer had one year from registration

with the program to complete construction of the solar project and submit a post-

construction certification package. N.J.A.C. 14:8-10.4(f)(4)(ii)(2). TI program

rules did not allow for an extension of a project completion deadline, also

referred to as the project's expiration date. However, the BPU was authorized

to waive its regulations for good cause. N.J.A.C. 14:1-1.2(b).

On July 29, 2020, the BPU issued an order granting a blanket extension

of completion deadlines for projects registered in the TI program on or before

October 30, 2020, and setting a new project completion deadline of October 30,

2021 for all affected projects. The BPU found the extension was warranted

because the solar industry was adjusting to the COVID-19 pandemic and

changes in the statewide solar incentive programs.

On June 24, 2021, the BPU issued an order providing for a further six-

month extension of project completion deadlines for all projects registered in

the TI program as of that date. The BPU found the solar industry was still

adjusting to the COVID-19 pandemic and the regulatory uncertainty caused by

A-0686-23
4
the anticipated launch of the SuSI program, which remained under development.

The BPU determined extending existing TI program project completion

deadlines would support the solar industry and protect ratepayers from potential

market disruptions that would arise if TI program projects expired before

completion and were abandoned.

On July 9, 2021, the Solar Act of 2021, N.J.S.A. 48:3-114 to -120, was

enacted. The statute authorized the BPU to launch the SuSI program.

On July 28, 2021, the BPU announced the TI program would close on

August 28, 2021, when the SuSI program would begin accepting solar project

applications. The final day to submit a new application to the TI program was

August 27, 2021.

On August 28, 2021, the Board launched the SuSI program, which had an

administratively determined incentive (ADI) program, meant for relatively

smaller solar generation projects, and a competitive incentive (CSI) program,

intended for larger "grid supply" solar generation projects. N.J.S.A. 48:3-115

to -117; see also N.J.A.C. 14:8-11.4 (detailing eligibility criteria for different

classes of projects in SuSI program); N.J.A.C. 14:8-11.5(d)(1) (describing

required application information for ADI program).

A-0686-23
5
On January 26, 2022, the BPU issued an order allowing solar projects

registered in the TI program, where the solar developer was unlikely to complete

the project by its project completion deadline, to migrate to the SuSI program.

To facilitate this, the BPU waived certain technical requirements of the ADI

program, such as the prohibition against including projects where construction

had already commenced. See N.J.A.C. 14:8-11.4(b) (explaining the ADI

program would only be open to new projects that had not commenced

commercial operation prior to the opening of the ADI program registration

portal). The Board found facilitating the ability of projects registered in the TI

program to enter the ADI program would benefit the solar industry and avoid

stranding, without incentives, a then-increasing number of TI registrants that

might be unable to complete projects within the relevant project completion

deadlines.

B. The Gibbstown Order.

On June 8, 2022, the BPU issued an order pursuant to N.J.A.C. 14:1-1.2(b)

granting a conditional six-month extension of the project completion deadline

for a TI program solar project in Gibbstown (the Gibbstown Order). That project

was accepted into the TI program on June 15, 2020, and had an initial project

completion deadline of June 15, 2021. After application of the two blanket

A-0686-23
6
extensions issued by the BPU, the project's completion deadline was extended

to April 30, 2022.

In March 2022, the developer requested an extension of the project

completion deadline to July 30, 2022. In April 2022, the developer amended the

application, requesting an extension of the project completion deadline to

December 31, 2022. In support of its application, the developer stated it

completed construction of the project, submitted a post-construction

certification package, and documented the project was capable of fully

energizing and connecting to the electricity grid. However, the developer

alleged the local electric distribution company (EDC) had not completed offsite

upgrades necessary to allow interconnection of the project to the electric

distribution system at full capacity. As a result, the EDC granted permission to

operate (PTO) the project only at partial capacity at the level that could be

accommodated by the then-existing electric distribution system.

According to the application, the developer paid all invoices it received

from the EDC for the necessary upgrades, the completion of which was entirely

in the control of the EDC. The EDC initially advised the developer the offsite

upgrades necessary to allow full capacity interconnection to the electric

distribution system would be completed by April 2022, in time to meet the

A-0686-23
7
project completion deadline. The EDC later informed the developer the

upgrades would not be completed until fall 2022. This potentially left a portion

of the capacity of the project without access to solar energy incentives for failure

to meet the project completion deadline.

In considering the extension application, the Board noted "[t]he general

purpose of the TI [p]rogram [r]ules, as well as the timelines contained therein,

is to provide a smooth transition to the [SuSI] [p]rogram and support to New

Jersey's thriving solar market while safeguarding the interest of the State's

ratepayers by doing so at the lowest possible cost." Quoting N.J.A.C. 14:1-

1.2(b), the Board noted "[i]n special cases, upon a showing of good cause [it]

may, unless otherwise specifically stated, relax or permit deviations from " its

regulations. The Board acknowledged waiver of its regulations is appropriate

where compelling "full compliance with the rule(s) would adversely affect the

ratepayers of a utility . . . , [and] the ability of said utility . . . to continue to

render safe, adequate and proper service, or in the interests of the general

public." N.J.A.C. 14:1-1.2(b)(1). Applying this authority, the Board found if

the Gibbstown developer could substantiate the claims made in its extension

application, "the unforeseeable delay in the EDC's completion of its upgrades

represents good cause to waive the deadline" and grant a six-month extension.

A-0686-23
8
In addition, the Board found it was

concerned that, under the unique circumstances
occasioned by the end of the TI [p]rogram, solar
developers that enter into interconnection agreements
with the explicit understanding that the interconnection
upgrades would be complete prior to a project's TI
[p]rogram expiration not be penalized for delays in the
EDC's construction of upgrades that were funded in
good faith by the project developer.

Thus, the Board "ma[de] conditional extensions available to similarly situated

parties on comparable terms" where:

1. The project can demonstrate that it was
   

   electrically and mechanically complete prior to its TI
   [p]rogram expiration date, which the Board interprets
   as a project that could be energized, but for the lack of
   a necessary [PTO] from the EDC due to factors that are
   the sole responsibility of the EDC;

2. The project can demonstrate that it had received
   and satisfied all necessary permits from all authorities
   having jurisdiction over the project prior to its TI
   [p]rogram expiration date, including required final
   inspections; and

3. Project construction was proceeding based on a
   representation from the EDC that any necessary
   interconnection upgrades would be completed prior to
   the project's TI [p]rogram expiration date, that the
   upgrades were fully funded by the project developer,
   but that despite the developer's best efforts, the
   estimated upgrade completion date was unilaterally
   extended by the EDC.

A-0686-23
9
The Board determined to be eligible for a six-month extension under these

criteria, a developer must apply for the extension before the project's completion

deadline, and submit specified documents. In addition, the BPU ordered:

In evaluating conditional waiver requests, the TI
[p]rogram administrator should review the construction
schedule presented by the EDC at the time or after the
interconnection agreement was executed, to determine
if the EDC's estimated construction schedule was
consistent with the project's TI [p]rogram expiration
date. So long as the developer timely provided any
necessary deposits at the time billed by the EDC, met
all other requirements imposed by the EDC, and the
construction schedule was otherwise feasible within the
constraints of the TI [p]rogram, then the Board believes
that solar developers who reasonably relied on the
EDC's schedule, and proceeded with the project, should
be provided relief.

The Board directed the Gibbstown developer to submit the documents

identified in the Gibbstown Order in support of its application. 1

C. Plankton's Project.

On August 23, 2021, four days before the deadline for new registrations,

Plankton registered a net-metered, non-residential rooftop solar facility in

Camden in the TI program. The BPU granted conditional acceptance of the

1
On August 17, 2022, the Board issued an order denying fifteen requests to
extend TI project completion deadlines. On November 9, 2022, the Board issued
an order denying twenty-eight requests to extend TI project completion
deadlines.
A-0686-23
10
project registration on August 27, 2021, resulting in a project completion

deadline of August 27, 2022.

On July 29, 2022, Plankton filed a petition with the BPU for a seven-

month extension of the project completion deadline. According to the petition,

Plankton created a construction schedule for its project with an estimated

completion date of August 15, 2022. The project design passed through the

appropriate design approval channels at PSE&G, the EDC for the project. On

October 6, 2021, PSE&G, based on the preliminary design and interconnection

diagram for the project, granted conditional PTO. Plankton thereafter continued

development of the project by, among other things, pursuing and ultimately

receiving municipal planning and zoning approvals, applying for necessary

electrical and building permits, paying for equipment and delivery, and

commencing construction on a timeline that would have allowed Plankton to

complete the project and obtain PTO prior to the project completion deadline.

However, on May 3, 2022, during an onsite meeting, a PSE&G engineer

advised Plankton its previously accepted design for the project was not

permitted and PSE&G erred when it approved the design. Plankton redesigned

the project and submitted the redesigned plans to PSE&G for conditional PTO.

The redesigned plans also required the purchase, delivery, and installation of a

A-0686-23
11
new electric cabinet. Plankton stated that on completion of the redesigned

project, it would need new municipal code inspections and final PTO. Plankton

argued these developments justified an extension of the project completion

deadline.

Plankton argued the criteria established in the Gibbstown Order

constituted rulemaking without compliance with the Administrative Procedure

Act (APA), N.J.S.A. 52:14B-1 to -31. See Metromedia, Inc. v. Dir., Div. of

Tax'n, 97 N.J. 313, 330 (1984). Thus, Plankton argued the Board could not

require satisfaction of the criteria in the Gibbstown Order as a condition of

granting an extension. In addition, Plankton argued the Gibbstown Order

criteria were too narrow and inflexible to be the only circumstances warranting

an extension, given the various obstacles preventing satisfaction of a project

completion deadline developers in the TI program might encounter that are

outside of their control.

Plankton further argued if the Gibbstown Order did not constitute

rulemaking, Plankton's circumstances fit the spirit of the Order and N.J.A.C.

14:1-1.2(b) because it was unable to timely complete its project due to

circumstances caused by PSE&G which were unforeseen and outside Plankton's

control. Plankton argued it invested considerable time and money into a project

A-0686-23
12
that would otherwise have been timely constructed were it not for PSE&G's error

in approving the original project design. Thus, Plankton requested a seven-

month extension of the project completion deadline, which it argued was

roughly equal to the number of days between issuance of PSE&G's first

conditional PTO and the day on which PSE&G reversed its approval of the

project design. Plankton noted its project was not financially viable in the SuSI

program and would not go forward if not eligible for the TI program incentives.

On March 17, 2023, Plankton filed an amended application. In addition

to reiterating its legal arguments, Plankton provided an update on the project's

progress. Plankton's redesigned project was substantially completed in August

1. The municipality, however, did not complete the electrical inspection of

the project until March 10, 2023, about seven and one half months after the

project completion deadline. Plankton submitted a request to PSE&G for PTO

shortly thereafter. Plankton stated it expected to receive PTO in the near future.

Plankton amended its extension request from seven months to eight months.

D. Patel's Project.

Patel's application for a net-metered, non-residential rooftop and canopy

solar project in Maple Shade was conditionally accepted in the TI program on

August 24, 2021. The project completion deadline was August 24, 2022.

A-0686-23
13
On August 16, 2022, Patel requested an extension of "at least [three]

months" of the project completion deadline. He alleged he encountered supply

chain delays "and other related problems" because of the COVID-19 pandemic,

but the system installation was completed. According to Patel, on the day he

submitted the extension application, eight days before the project completion

deadline, he filed a net meter installation application with PSE&G, the EDC for

the project. The installation was needed to complete the project and obtain PTO.

On February 6, 2023, Patel supplemented his application in a document

he entitled "[h]ighlights of [p]roject completion & [r]oadblocks ." He alleged

that on October 26, 2022, PSE&G informed him the electrical system at the

project had to be disconnected to connect the project to the electric distribution

system and obtain PTO. PSE&G disconnected the system on January 16, 2023,

a delay he attributed to PSE&G's "excess workload." The project was completed

and in operation as of January 16, 2023. Patel alleged the delay in completing

the project and obtaining PTO were attributable to PSE&G and the municipality

and "were out of our control."

E. The BPU's September 18, 2023 Order.

On September 18, 2023, the BPU issued an order denying Plankton's and

Patel's extension applications. On Plankton's application, the Board found the

A-0686-23
14
Gibbstown Order was not rulemaking, but an adjudication on the specific facts

presented in the Gibbstown project extension application. The Board found the

Gibbstown Order did not establish a broadly applicable policy determination,

but was an application of N.J.A.C. 14:1-1.2(b) to the facts relating to the

Gibbstown project and an attempt to lessen the regulatory burden on a small

group of developers in similar circumstances. Thus, the Board concluded

issuance of the Gibbstown Order was an exercise of its quasi-judicial, not quasi-

legislative authority, and compliance with the APA was not necessary.

Applying N.J.A.C. 14:1-1.2(b), the BPU found relaxation of the project

completion deadline was not warranted. The Board found Plankton did not

establish the delays in achieving interconnection were solely attributable to the

EDC. The Board noted Plankton's timeline for completion of the project, created

around the time the project was registered in the TI program, estimated

completion of construction in July 2022, with municipal inspections taking place

eight days later. After the EDC's May 2022 notification the project needed to

be redesigned, Plankton completed the project in August 2022, just one month

after the original estimated date of completion. The municipal inspection did

not take place until March 2023, seven months after the project was completed,

far longer than the eight days estimated in the original timeline. As of March

A-0686-23
15
2023, the EDC had not yet issued PTO for the project. The original timeline,

however, estimated PTO would be obtained seventeen days after the municipal

inspection.

The Board concluded the EDC's reversal with respect to the project design

delayed the project by only one month and the developer's initial estimate of the

time necessary for the municipal inspection and issuance of PTO were

unrealistic. Plankton did not establish the delay in conducting the inspection

and issuing the PTO were unforeseeable or solely attributable to the

municipality and EDC. Thus, the Board found Plankton's claim that "but for"

the EDC's reversal on the project design the project would have been completed

on time "failed" to establish just cause and was not analogous to the

circumstances in the Gibbstown Order.

The Board also noted Plankton's project was registered in the closing days

of the TI program and Plankton knew or should have known the transition

program was closing. The Board found Plankton was aware of the one-year

deadline to complete the project and the TI program regulations did not provide

for an extension of the project completion deadline. Given the expiring nature

of the program, Plankton decided to invest in a project based on what proved to

A-0686-23
16
be an unreliable estimated timeline in what soon would be a legacy incentive

program.

With respect to Patel's application, the Board found the project was

accepted in the final weeks of the TI program when supply chain delays were

well known in the industry. The Board noted it had consistently rejected

extension requests based on known supply chain delays, which put Patel on

notice the Board was not likely to grant an extension for such delays. In

addition, the Board found Patel provided no detailed explanation of the alleged

municipal permitting delays or justification for his claim the delays were

unexpected and out of his control. In addition, the Board found the three-month

delay in the EDC's scheduling of the disconnection of the existing electric

system was a routine practice Patel should have expected when he considered

whether the project could be completed in a year.

Applying its authority pursuant to N.J.A.C. 14:1-1.2(b), the Board

concluded good cause did not exist to extend the project completion deadlines

for Plankton's and Patel's projects. In reaching this decision, the Board balanced

Plankton's and Patel's interests as solar developers who invested in their projects

with the public's interest in timely completion of projects, the ratepayers' interest

in controlling the cost of solar subsidies, and the State's interest in ensuring solar

A-0686-23
17
incentive levels appropriately reflect the time during which a project reaches

commercial operation. The Board noted it addressed supply chain delays in its

two prior orders granting extensions to all projects in the TI program. In

addition, the Board determined "general interconnection processing delays"

were insufficient to warrant an extension of a project completion deadline. The

Board found the one-year project completion requirement in the TI program was

an indication the program "was always intended to be limited to those projects

mature enough to complete in twelve months." The Board further found

Plankton's and Patel's projects were in early phases when they registered in the

TI program's final days and the delays they experienced were foreseeable.

Finally, the Board determined denial of the extension applications furthers the

interests of the State and the public in maintaining an orderly transition from the

legacy TI program to the SuSI program and in reducing the cost of achieving the

State's solar energy goals.

The Board encouraged Plankton and Patel to register their projects in the

ADI aspect of the SuSI program. To facilitate the transfer of the projects to the

SuSI program, the Board waived N.J.A.C. 14:8-11.4(b), which prohibited

A-0686-23
18
admission of projects in SuSI where construction had commenced, for the

programs addressed in the September 18, 2023 order.2 These appeals followed.

Plankton and Patel argue: (1) issuance of the Gibbstown Order was

rulemaking without compliance with the APA and was, therefore, an invalid

basis on which to deny their extension applications; and (2) even if the BPU did

not engage in invalid rulemaking when it issued the Gibbstown Order, its denial

of their extension applications was arbitrary and capricious.

II.

We begin with Plankton's and Patel's arguments concerning the validity

of the Gibbstown Order. "Administrative agencies enjoy great leeway when

selecting among rulemaking procedures, contested hearings, or hybrid informal

methods in order to fulfill their statutory mandates." In re Provision of Basic

Generation Serv., 205 N.J. 339, 347 (2011). "If an agency determination or

action constitutes an 'administrative rule,' then its validity requires compliance

with specific procedures of the APA that control the promulgation of rules."

Airwork Serv. Div. v. Dir., Div. of Tax'n, 97 N.J. 290, 300 (1984). The APA

defines "administrative rule" or "rule" as "each agency statement of general

2
The September 18, 2023 order also rejected in whole or in part the extension
applications of sixteen other developers of projects in the TI program.
A-0686-23
19
applicability and continuing effect that implements or interprets law or policy,

or describes the organization, procedure or practice requirements of any

agency." N.J.S.A. 52:14B-2.

In Metromedia, our Supreme Court provided standards for determining

whether rulemaking requirements apply to an agency's decision. 97 N.J. at 331-

1. The Court explained:

[A]n agency determination must be considered an
administrative rule . . . if it appears that the agency
determination, in many or most of the following
circumstances, (1) is intended to have wide coverage
encompassing a large segment of the regulated or
general public, rather than an individual or a narrow
select group; (2) is intended to be applied generally and
uniformly to all similarly situated persons; (3) is
designed to operate only in future cases, that is,
prospectively; (4) prescribes a legal standard or
directive that is not otherwise expressly provided by or
clearly and obviously inferable from the enabling
statutory authorization; (5) reflects an administrative
policy that (i) was not previously expressed in any
official and explicit agency determination, adjudication
or rule, or (ii) constitutes a material and significant
change from a clear, past agency position on the
identical subject matter; and (6) reflects a decision on
administrative regulatory policy in the nature of the
interpretation of law or general policy. These relevant
factors can, either singly or in combination, determine
in a given case whether the essential agency action must
be rendered through rule-making or adjudication.

[Id. at 331-32.]

A-0686-23
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"The pertinent evaluation focuses on the importance and weight of each factor,

and is not based on a quantitative compilation of the number of factors which

weigh for or against labeling the agency determination as a rule." Provision of

Basic Generation Serv., 205 N.J. at 350.

We agree with the Board's conclusion the Gibbstown Order "was an

individual adjudication finding good cause to waive portions of the Board's TI

[program] rules pursuant to N.J.A.C. 14:1-1.2, based upon the very specific facts

presented in that petition." The Gibbstown Order does not purport to establish

a good cause standard under N.J.A.C. 14:1-1.2 for general applicability in future

cases. Instead, the Board decided there was good cause to extend the project

completion deadline for the Gibbstown project based on the specific

circumstances presented in the application for that project. The Gibbstown

Order also does not establish a legal standard or directive not otherwise inferable

from the statutes authorizing the Board to administer solar incentive programs.

Nor does the order reflect administrative policy. It instead adjudicated a

developer's application for an extension of a project completion deadline under

the good cause standard in N.J.A.C. 14:1-1.2.

In the Gibbstown Order, the Board also found TI program developers, in

circumstances similar to those experienced by the Gibbstown developer, would

A-0686-23
21
be entitled to an extension if they produced specified documents establishing

three factors. That finding does not apply to a large segment of the regulated or

general public, but rather to a narrow group of developers in a legacy incentive

program facing particular circumstances similar to those experienced by the

Gibbstown developer that may warrant relaxation of a BPU regulation.

More importantly, the Gibbstown Order does not, as Plankton and Patel

argue, define the only set of circumstances constituting good cause for an

extension of a TI program project completion deadline under N.J.A.C. 14:1-

1.2(b). As evidenced by the Board's analysis in the September 18, 2023 order,

the Board considered whether a variety of circumstances constituted good cause

for an extension. Nothing in the September 18, 2023 order suggests a

developer's inability to establish the exact circumstances or criteria identified in

the Gibbstown Order precluded a finding of good cause for an extension under

different circumstances. To the contrary, the Board discussed at length delays

resulting from a variety of causes and determined for each set of circumstances

whether good cause for an extension existed. 3

3
After briefing was complete, we granted Plankton's motion to supplement the
record with two BPU orders: (1) a September 25, 2024 order denying a motion
to reconsider the Board's denial of a developer's application to extend the project
completion deadlines for several TI program projects; and (2) a February 12,

A-0686-23
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Turning to the validity of the Board's denial of Plankton's and Patel's

extension applications, the scope of our review of a final decision of an

administrative agency is limited and we will not reverse such a decision unless

it is "arbitrary, capricious, or unreasonable, or . . . not supported by substantial

credible evidence in the record as a whole." In re Stallworth, 208 N.J. 182, 194

(2011) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)).

When making that determination, we consider:

(1) whether the agency's action violates express or
implied legislative policies, that is, did the agency
follow the law; (2) whether the record contains
substantial evidence to support the findings on which
the agency based its action; and (3) whether in applying
the legislative policies to the facts, the agency clearly
erred in reaching a conclusion that could not reasonably
have been made on a showing of the relevant factors.

[Ibid. (quoting In re Carter, 191 N.J. 474, 482-83
(2007)).]

2025 order denying the applications of several developers for extensions of
project completion deadlines for TI program projects. Plankton argued these
orders underscore that the Gibbstown Order serves as a de facto rule establishing
rigid criteria for obtaining an extension of a project completion deadline in the
TI program. Our review of those orders does not support Plankton's argument.
In the September 25, 2024 order, the BPU described the Gibbstown Order as
identifying "one . . . path a petitioner could utilize to seek an extension" before
determining whether the specific circumstances identified by the applicant,
which differed from those addressed in the Gibbstown Order, constituted good
cause for an extension. Similarly, in the February 12, 2025 order, the Board
considered both the criteria established in the Gibbstown Order and other
circumstances on which the developer relied in their applications for extensions.
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We are, however, "in no way bound by the agency's interpretation of a statute

or its determination of a strictly legal issue." Carter, 191 N.J. at 483 (quoting

Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)).

During our review, we must remain mindful "[t]he Legislature has

endowed the BPU with broad power to regulate public utilities [and]

considerable discretion in exercising those powers." In re Pub. Serv. Elec. &

Gas Co.'s Rate Unbundling, 167 N.J. 377, 384-85 (2001) (quoting In re

Elizabethtown Water Co., 107 N.J. 440, 449-50 (1987)). The Board's decisions

are presumed to be valid "and will not be disturbed unless [the court] find[s] a

lack of 'reasonable support in the evidence.'" Id. at 385 (quoting In re Jersey

Cent. Power & Light Co. 85 N.J. 520, 527 (1981)). We may set aside a BPU

order "when it clearly appears that there was no evidence before the [B]oard to

support the same reasonably or that the same was without the jurisdiction of the

[B]oard." N.J.S.A. 48:2-46.

Our review of the record reveals sufficient support for the Board's

determinations neither Plankton nor Patel established good cause for an

extension of the completion deadlines for their projects. As noted above, the

Board is authorized to relax its regulations "[i]n special cases and for good cause

shown . . . ." N.J.A.C. 14:1-1.2(b). The party seeking relaxation of a regulation

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bears the burden of establishing good cause. N.J.A.C. 14:1-1.2(b)(2). The

record supports the Board's finding Plankton's registration in the last days of the

TI program was based on an unrealistic timeline for a project in the early stages

of development. In addition, as the Board found, PSE&G's reversal of its

approval of the design of Plankton's project resulted in a one-month delay in

completing the project. Issuance of PTO was delayed an additional seven

months while Plankton awaited municipal inspections. Plankton's original

timeline estimated those inspections would take place eight days after

completion of the project. Based on this record, we cannot conclude the Board

acted arbitrarily or capriciously when it determined Plankton did not establish

good cause for an extension.

We reach the same conclusion regarding the Board's denial of Patel's

extension application. Also registered in the closing days of the TI program,

Patel's early-stage project was delayed by supply chain and interconnection

issues well known to the industry at the time of registration. In addition, Patel's

extension application was based on vague allegations that "other related

problems" and PSE&G's "excess workload" prevented timely completion of the

project. Patel applied for EDC approval of the installation of a component of

the project necessary to obtain PTO just eight days before the project completion

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deadline. The Board reasonably found the delays described by Patel were

routine and should have been expected by the developer when he decided to

invest in a project that had to be completed within one year to qualify for the TI

program incentives. We see no basis on which to conclude the Board's decision

was arbitrary and capricious.

Affirmed.

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