Court sides with Union Beach on wind turbine appeal

The New Jersey Superior Court Appellate Division ruled today that the Bayshore Regional Sewerage Authority must seek site plan approval from the Union Beach Planning Board before finishing construction of their wind turbine.

Attorney Stewart Lieberman, who represented the Union Beach Planning Board during the appeal, explained that the case emphasizes that while state approvals are necessary, so are local ones.

"We won. We're very gratified that the court saw things as we suggested they be seen. The decision is important because it shows that just because the DEP (Department of Environmental Protection) has issued a permit and approval, it doesn't mean you don't have to get your local land use approvals," Lieberman said.

The proposed wind turbine on the BRSA's property in Union Beach has been a subject of debate since plans for it were first announced in 2009.

In Oct. 2009, the NJ Department of Environmental Protection authorized the BRSA to advertise for bids for the project, according to facts found by the appellate court. That same month, the BRSA was issued a permit from the Coastal Area Facility Review Act (CAFRA), allowing the sewerage authority to build a 1.5 megawatt, 262-foot wind turbine on a 1,700 square-foot base with light and wire limitations to limit the negative impact on migratory birds

Due to the placement of the turbine and the length of the blades, the BRSA was required to get approval from the owner of the neighboring property, Jersey Central Power & Light (JCP&L). Instead of getting permission, the BRSA and JCP&L created a memorandum of agreement and the BRSA's purchase of the section of JCP&L's property was conditioned on a subdivision approval from the Union Beach Planning Board, the appellate court found.

The planning board denied the application on the basis that the BRSA is in a residential zone and JCP&L is in a manufacturing zone, prompting the BRSA to file a complaint challenging the denial.

The trial court found that construction in the coastal management zone, where the BRSA is located, is under exclusive control of the NJDEP and CAFRA, and therefore the turbine was allowed based on those agencies' approvals. The trial court also stated that since the BRSA had acquired the land from JCP&L, Union Beach was unable to control the land use. The court also contended that the zoning map was flawed, and that the BRSA was not in fact in a residential zone.

The appellate court reversed the trial court's decision that the NJDEP and CAFRA permits made the BRSA exempt from local zoning and land use laws. Rather, they stated that the CAFRA permit issued to the BRSA does not preempt the local government.

"The reasoning undergirding the partial summary judgement granted in favor of BRSA is fundamentally flawed," wrote the appellate court in their Aug. 10 decision.

"The fact that the wind turbine satisfies a public purpose to permit utilization of its eminent domain authority has been designated an inherently beneficial use, does not obviate the need to obtain a variance," the appellate court decision continued. "BRSA's conduct throughout the permit process is indicative of an agency which considers itself exempt from local zoning regulations"

The appellate court did not rule as to whether or not the zoning map was flawed, and left the map to be reviewed and decided on by Union Beach. Additionally, the BRSA must now seek site plan approval from the planning board for the wind turbine.

During the appeal process, the BRSA began building the turbine and even completed the base, BRSA Executive Director Rober Fischer told Patch in July. However, after the court granted Union Beach an injunction, the BRSA had to halt construction and remove all construction equipment and materials from the site, Fischer explained.

No date has been set for the plan to appear before the planning board, however Lieberman said he will argue that the plan be denied because turbines are not permitted in residential zones.

"We're going to advocate that the permit is required. The [zoning] map speaks for itself. The map was adopted many years ago. If they want to put a wind turbine in a residential area, which we don't think they should, they are going to need a land use variance," Lieberman said. "But that's up to the [planning] board."