This article appears originally at the following website: nj.com
Mentions: Daniel J. O’Hern Jr.
By October 31, 2014 at 2:12 PM, updated October 31, 2014 at 3:04 PM
RED BANK — A few years ago, New Jersey Natural Gas found dozens of its underground regulators in towns along the Jersey Shore were corroded, and needed to be switched out with above-ground units. It was a public safety issue, they said.
Numerous towns complied. But one did not. The Borough of Red Bank denied the construction permit to dig, saying they were concerned the regulators, once installed in visible places alongside buildings, would impact the downtown’s look and could trip up pedestrians.
A state appellate court sided Tuesday with the town, saying that the horseshoe-shaped regulators extending 15 inches out from the sides of buildings were “beyond the power” of the initial agreement between the town and the utility.
But all 88 new regulators are already installed throughout the downtown, and have been for nearly two years. The underground regulators – which control pressure in the pipes – were replaced while the legal battle was winding its way through the courtroom. Now, the town’s “victory” could be merely symbolic.
“This was time and money spent on nothing whatsoever,” said Kevin Marino, an attorney for the utility. “Our goal was to get those corroding regulators out of the ground as soon as possible.”
“We won, but all these things are up already,” said Daniel J. O’Hern, Jr., the attorney for the borough. “We’re of the opinion that those things are in the ground illegally.”
Once the utility said it needed to replace the regulators because of the corrosion in 2011, both sides held numerous meetings to negotiate the plan. The talks resulted in no compromise, according to the court documents. So New Jersey Natural Gas applied for construction permits to open the street and sidewalk to replace one of the underground regulators with one at street level. The borough denied it, and the utility sued, claiming that the replacement issue was an emergency matter.
The trial court sided with New Jersey Natural Gas, saying that the utility had to seek a construction permit for times and methods to perform the work, but ruling the town could not ultimately tell the utility whether to do the work, according to the court opinion
That judge and later the appellate panel denied the borough’s motion to grant a stay on the regulator replacement. The work was completed in late 2012 and early 2013, Marino said.
This week’s decision now reverses the trial court ruling – but splits nuances of the law, saying that “applicable provisions of the (Municipal Land Use Law) make clear that the Legislature never denied municipalities the ability to exercise at least some of their traditional zoning powers simply because a public utility was involved.”
However, the judges added they were equally eager to not have their decision grant sweeping powers to local governments in dealing with utilities.
“We hasten to add that we express no position on how Red Bank’s development regulations should be construed, and whether NJNG, therefore, is required to submit a development permit,” the judges ruled.
O’Hern, the borough’s attorney, said the court has set a precedent simply requiring utilities to seek authorization at the local and administrative levels – a process which could eventually end at the state’s Board of Public Utilities. The attorney added that the town is considering its legal options with the “illegal” additions to the downtown streetscape.
New Jersey Natural Gas counters that no precedent was set by the case – and remain confident they would prevail in any future challenge by the town.
“This is as simple as can be,” said Marino. “Everything we do is designed to keep the public safe… We didn’t have to jump through these hoops in other towns. Red Bank elevated aesthetic beauty over the safety of the public.”
In the meantime, the town’s look has suffered, said James Scavone, the executive director of the Red Bank Rivercenter, the borough’s downtown special improvement district. He and other opponents call them “eyesores” among the dark brick and Victorian-style streetlamps of the downtown. But there could be changes to come, he added.
“It definitely affected the look and feel of the downtown once they moved them above ground,” said Scavone. “It’s definitely ‘to be continued.’”
