NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
Country Gardens, Ltd. (CGL), owns a 216-unit apartment complex known as Sandy Ridge Apartments in Carneys Point. Water for the apartments is not individually metered. Faced with tenants' rising water usage and its own rising costs, CGL sought to shift the cost of water to tenants, by installing individual water meters. The local water utility, New Jersey American Water Company (NJAW), insisted that individual water meters be installed in underground pits, as generally required by its tariff, although NJAW retained discretion to waive that requirement on a case-by-case basis.
CGL requested permission to install the meters above ground, inside the apartment buildings, to reduce installation costs. NJAW refused, and CGL filed a petition with the Board of Public Utilities (BPU or the Board), challenging the utility's decision. In an August 21, 2013, order, the BPU denied CGL's petition by adopting the initial decision of the administrative law judge (ALJ). CGL now appeals, contending that the BPU erred in its review of NJAW's exercise of discretion, and in failing to consider the impact of its decision on the conservation of water.
Having considered CGL's arguments in light of the record and applicable principles of law, we affirm.
I.
The material facts are undisputed. CGL's complex consists of eighteen apartment buildings, serviced by eleven outside water meters located in in-ground pits. CGL is the sole customer for water use at the complex.
In October 2008, CGL proposed to NJAW to install 227 meters — one for each apartment, and for eleven laundry rooms. CGL proposed to install the meters in the heater room of each building. CGL claimed at the time that its proposal would cost $80,000, while installation of the meters in outside pits would cost almost $300,000.1
Several years earlier, CGL had presented the same basic proposal to NJAW's predecessor, Pennsgrove Water Supply Company, without success. CGL challenged the utility's decision in Superior Court in 2003, but the court dismissed the suit, apparently on the ground that jurisdiction rested with the BPU. At that time, CGL did not formally petition for relief before the BPU. A CGL representative did write to the BPU, seeking assistance. The BPU's director of its division of water and wastewater responded that in-ground meters were "necessary for Pennsgrove to have proper access to the service and to allow for emergency access," and would "allow Pennsgrove to provide safe, adequate and proper service as indicated in [BPU] regulations."
Having apparently not received a response to its October 2008 proposal, CGL filed a verified petition with the BPU on February 3, 2009, seeking an order to compel NJAW to allow CGL to undertake its proposed project. As a legal basis for its requested relief, CGL asserts that its proposal would advance conservation goals as set forth by N.J.S.A. 48:2-23, which states:
The board may, after public hearing, upon notice, by order in writing, require any public utility to furnish safe, adequate and proper service, including furnishing and performance of service in a manner that tends to conserve and preserve the quality of the environment and prevent the pollution of the waters, land and air of this State, and including furnishing and performance of service in a manner which preserves and protects the water quality of a public water supply, and to maintain its property and equipment in such condition as to enable it to do so.
NJAW opposed the petition, asserting that requiring in-ground water meters was consistent with its tariff and nationwide practice; and allowed unfettered access to meters to enable it to read the meters, and respond to emergencies. According to NJAW, CGL's proposal would lengthen service lines from the street to the meters; increase risks of damage and theft; and impede access and service. In discovery, NJAW maintained that water meters were less likely to be stolen or vandalized if secured in underground pits, accessible only with the use of special tools that its employees carried. NJAW asserted that to provide safe, adequate, and proper service, it required access to water meters at all times; and the ability to access the shut-off valve in emergency situations. NJAW contended that above-ground water meters posed an increased risk of cut or poorly connected wiring; vandalism; lens damage; and melting in case of fire.
NJAW asserted that it needed to avoid the necessity of entering private property and any associated hazards in doing so. NJAW rejected CGL's contention that providing keys to the heater rooms, or staff on hand to allow access, would address its access needs. According to NJAW, providing and maintaining keys presented an administrative challenge.
NJAW's tariff generally required in-ground meters:
The Company requires that all meters be housed inside meter pits (for meters that are less than or equal to 2-inches) or meter vaults (for meters that are larger than 2-inches). Where more than one service type exists (domestic, private fire protection or irrigation) all meters shall be housed inside a meter vault if any one meter is greater than two inches. The Customer is responsible for the installation and maintenance of meter vaults. All meter pits and meter vaults will be located outside of the Customer's structure in a location acceptable to the express approval of the Water Company.
[Tariff, N.J. Am. Water Co., B.P.U. No. 8 — Water, Second Revised Sheet 16 ¶14.]
The tariff granted NJAW discretion to waive the in-ground requirement, stating: "Notwithstanding the foregoing, the Company may grant an exception to this rule on a case by case basis."
NJAW sought summary decision by motion, with a supporting brief, filed in November 2012.2 CGL opposed with a supporting brief. Although CGL asserted there were disputed issues of fact, it filed no responding affidavit. See N.J.A.C. 1:1-12.5(b) ("When a motion for summary decision is made and supported, an adverse party in order to prevail must by responding affidavit set forth specific facts showing that there is a genuine issue which can only be determined in an evidentiary proceeding.").
ALJ Elia A. Pelios issued an initial decision granting NJAW's motion. The ALJ found no material issues of fact, stating that the issue of whether NJAW's in-ground requirement was proper was a question of law. ALJ Pelios found that NJAW acted in accord with its tariff, and consistent with N.J.A.C. 14:3-2.1, which requires installation of meters in accord with safety and security standards, and N.J.S.A. 14:3-4.2, which states that meters must be located to provide easy access, with minimum inconvenience to the customer or utility. ALJ Pelios found that the power to grant exceptions was "permissive rather than mandatory."
The BPU adopted the ALJ's decision, and found that NJAW properly denied CGL the right to individual meters installed above-ground, and inside its buildings. The Board found NJAW's position to be consistent with its tariff and statutory law:
It is undisputed that the Tariff controls, and the Board finds that NJAW's decision on the use of meter pits for Petitioner [CGL] is consistent with the Tariff and the applicable rules. The [T]ariff requires the Respondent [NJAW] to house all the meters inside meter pits or meter vaults. "All meter pits and meter vaults will be located outside the Customer's structure in a location acceptable to the express approval of the Water Company." Tariff, Second Revised Sheet 16, ¶14. The ALJ correctly found that Respondent's requirement that any meters be housed in meter pits outside of any structure is consistent with and permitted by its tariff.
N.J.A.C. 14:3-4.2(c) provides: "Meters shall be so located as to be easily accessible for reading, testing and making necessary adjustments and repairs. Meters shall be placed in a location where the visits of the meter reader or tester will cause minimum inconvenience to the customer or [to] the utility." Also, N.J.A.C. 14:3-2.1(b) provides that "[e]ach utility shall make reasonable efforts to protect its property from injury, vandalism[,] or damage of any kind, and shall exercise due care to reduce hazards to which employees, customers, and the general public may be subjected by the utility's equipment and facilities." Although the Board, under N.J.S.A. 48:2-23, may require NJAW to furnish safe, adequate, and proper service in a manner that tends to conserve and preserve the quality of the environment and, in doing so, as argued by Petitioner, consider the conservation of water by Petitioner, the Board does not deem the potential conservation of water to override NJAW's exercise of its discretion under the Tariff to deny Petitioner's request.
Respondent points out that the meters will not be easily accessible for reading, testing, or making necessary adjustments or repairs if the meters are inside locked boiler rooms. Moreover, Respondent asserts that placing the meters inside the boiler rooms would potentially subject the meters to vandalism by the customers and the general public that may gain access to the boiler rooms. Notwithstanding Petitioner's assertion that it has a manager on duty twenty-four hours per day, and that the boiler rooms can be accessed only by Petitioner-approved personnel, Respondent asserted that having the meters in the meter pits outside the building assures Respondent of around-the-clock access to its facility and the ability to shut-off service for nonpayment. Similarly, Petitioner's offer to provide Respondent with keys to the laundry room3 where the meters will be located was appropriately considered by Respondent and rejected due to safety and security reasons.
With regard to NJAW's power to grant exceptions, the Board concluded that the tariff did not require NJAW to justify its refusal to exercise its discretion; and in any event, NJAW acted with adequate justification:
Indeed, the Tariff does not even require NJAW to justify its reason for not granting an exception to Petitioner. Nevertheless, the Board finds no reason to discount Respondent's assertion that its rejection of Petitioner's request complies with its Tariff and the rules, which require the meters to be placed in a location that causes minimum inconvenience for the utility to perform its regulatory duties. N.J.A.C. 14:3-4.2.
On appeal, CGL argues: (1) summary decision was improper because there existed genuine issues of material fact regarding the necessity of in-ground meters, and the adequacy of its alternative; (2) the Board should have found that NJAW was arbitrary and capricious, and abused its discretion, in declining to allow above-ground interior meters; and (3) the Board did not consider the conservation of water in its decision.
II.
The standard for granting a motion for summary decision under N.J.A.C. 1:1-12.5(b) is "substantially the same" as that governing a motion for summary judgment under Rule 4:46-2. Contini v. Bd. of Educ. of Newark, 286 N.J.Super. 106, 121 (App. Div. 1995), certif. denied, 145 N.J. 372 (1996). However, our review of an agency's summary decision differs from our review of a trial court's grant of summary judgment. We review an order granting summary judgment de novo, using the same legal standard employed by the trial court, owing no deference to the trial court's conclusions of law. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010).
While we likewise review de novo an agency's determination that no genuine issue of material fact existed, we "strive to give substantial deference to the interpretation [the] agency gives to a statute that the agency is charged with enforcing." In re Application of Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 423 (2008) (internal quotation marks and citation omitted). We defer to an agency's interpretation of its own regulations unless plainly unreasonable. In re Election Law Enforcement Comm'n Advisory Op. No. 01-2008, 201 N.J. 254, 260 (2010). We defer as well to "an agency's expertise and superior knowledge of a particular field." Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992). We will affirm an agency's final quasi-judicial decision unless it is "arbitrary, capricious, or unreasonable." Russo v. Bd. of Trustees, Police and Firemen's Ret. Sys., 206 N.J. 14, 27 (2011) (internal quotation marks and citation omitted). Nonetheless, 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).
Applying this standard of review, we affirm the grant of summary decision, substantially for the reasons stated in the BPU's decision. Extended discussion of CGL's arguments is not warranted. R. 2:11-3(e)(1)(D), -3(e)(1)(E). We add the following brief comments.
CGL's request to install above-ground, interior meters is governed by NJAW's tariff. "[A] tariff is not a mere contract. It is the law, and its provisions are binding on a customer whether he knows of them or not." In re Application of Saddle River, 71 N.J. 14, 29 (1976) (citing Essex Cnty. Welfare Bd. v. N.J. Bell Tel. Co., 126 N.J.Super. 417, 421-22 (App. Div. 1974)). The interpretation of a tariff, however, lies within the Board's expertise. See Muise v. GPU, Inc., 332 N.J.Super. 140, 159 (App. Div. 2000). Our deference to the Board's interpretation is based in part on the fact that the agency reviewed and approved the tariff in the first place. See Essex Cnty. Bd. of Taxation v. Twp. of Caldwell, 21 N.J.Tax 188, 197 (App. Div.) ("An agency's interpretation of its own rule is owed considerable deference because the agency that drafted and promulgated the rule should know the meaning of that rule."), certif. denied, 176 N.J. 426 (2003).
We reject CGL's argument that there existed genuine issues of material fact regarding the comparative benefits and costs of in-ground and above-ground interior meters. NJAW's position was based on its tariff, national practice, and its statements of answers in discovery. CGL failed to contest NJAW's position with competent evidence. Contrary to the command of N.J.A.C. 1:1-12.5(b), CGL provided no affidavit setting forth specific facts demonstrating a genuine issue that could only be determined after an evidentiary hearing.
The BPU determined that NJAW was not obliged to justify its refusal to exercise its discretion to waive the in-ground requirement. We note that the tariff states that NJAW "may," not "shall" waive the requirement on a "case by case basis." The tariff does not entitle a petitioner to obtain a waiver on good cause shown, whatever that might be.
In any event, CGL has not established an abuse of discretion. "While the `abuse of discretion standard defies precise definition,' we may find an abuse of discretion when a decision `rest[s] on an impermissible basis' or was `based upon a consideration of irrelevant or inappropriate factors.'" State v. Steele, 430 N.J.Super. 24, 34, 35 (App. Div.) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)) (internal quotation marks and citations omitted), appeal granted, 214 N.J. 233, appeal dismissed, ___ N.J. ___ (2014). NJAW relied upon permissible, relevant, and appropriate considerations — that of the convenience, security, and ease of use of in-ground meters. Under the tariff, NJAW was not obliged to adopt CGL's alternative, despite the cost implications.4
Affirmed.
