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Planning Bd. blows down BRSA plan for subdivision

Blades from the Bayshore Regional Sewerage Authority’s (BRSA) proposed 380-foot-tall wind turbine will not be spinning come January 2011.

The Union Beach Planning Board unanimously voted down an application to realign the BRSA’s property line to provide more room for the turbine’s 118-foot-long blades at a meeting on Dec. 8.

The Planning Board ruled that the application was deficient based on a zoning error and the BRSA must re-apply for a “d” variance.

“They [the BRSA] need that so they can have an overhang to operate,” said Stuart J. Lieberman, of Lieberman & Blecher, Princeton, counsel representing the borough of Union Beach, which is opposing construction of the turbine.

“That is an expansion of a nonconforming use. It would be improper for this to go forwardwithout a properly noticed use variance.”

The BRSA requested approval to subdivide and consolidate two lots owned by Jersey Central Power & Light (JCP&L) that abut the sewerage plant’s property. The authority is seeking to add a 0.502-acre piece of land to create an arc parallel to the turbine.

The arc would be located near the 219.5- acre tract known as Conaskonk Point, a salt marsh that consists of environmentally sensitive lands, according to a review of the site plan application prepared by T&M Associates, Middletown.

BRSA attorney Louis E. Granata, of Granata & Zaccardi, Matawan, said a “d” variancewould not apply to the subdivision application because the half-acre property itself is not being developed.

“We are not looking for a “d” variance. We are not expanding … we are an existing public health facility. I object to any further adjournments and expenses for both Union Beach taxpayers to continue this nonsense about this perceived problem here in Union Beach and continue to put more burden on the Bayshore Regional Sewerage Authority in the form of expenses which is passed on to you.”

The BRSA obtained a permit through the Coastal Area Facility Review Act (CAFRA) from the New Jersey Department of Environmental Protection (DEP) in May for the construction of the turbine, which would supply about half of the BRSA’s energy needs.

Granata stated that the BRSA’s wind-toenergy project could be defined as “inherently beneficial use” under state law.

“We do not become subject to the various requirements of this borough because we are a political subdivision of the state,” Granata said. “We are an inherently beneficial use, as described by the statute under the municipal use law.”

Lieberman said that a CAFRA permit does not waive the need to obtain federal or other state or local government consent when necessary.

“There’s nothing … that says you automatically get a use variance,” he said.

The application, according to an engineering review from T&M, involves consolidating the lot that is in an R-8 Residential zone with a lot in the M-2 Heavy-Industrial zone.

Lieberman argued that the sewer utility property is currently located in a residential zone, but Granata said Borough Engineer Edward Broberg made the zoning designation in error.

Both attorneys made reference to an ordinance adopted by the municipality in 2007 that amended the IFF/Natco Lake master plan. The map shows the BRSA property blacked out surrounded by a residential zone.

Granata said the map was mistakenly drawn by Broberg’s office.

“If you read through the ordinance, this creates the Natco Lake master plan,” Granata said. “It has nothing to do with the M-2 zone or the R-8 zone.”

Lieberman argued that the operation of the turbine does not conform to the uses allowed in a residential neighborhood.

“They are in an R-8 zone,” he said. “If their position is they don’t belong there, that’s something we may need to talk about. They need a use variance because they are seeking to expand. It doesn’t matter that they aren’t developing in the R-8 zone. They are expanding the R-8 zone for the purpose of a nonconforming use, and that’s the turbine. The turbine is not permitted in the R-8 zone.”

During the engineer’s testimony, Broberg acknowledged that T&M made a drafting error on the borough’s 2007 zoning map adopted by the governing body.

According to a third engineering review from T&M dated Dec. 6: “The BRSA plan and facilities are included in the R-8 zone, and that is clearly not the borough’s intent”; and “It will be necessary for the mayor and Borough Council to change that map and the ordinance in the near future.”

The engineering review also states a possible need for a revised CAFRA permit due to the inclusion of the JCP&L arc into the BRSA property.”

“Typically in a situation like this, whether it be for this use or any other use, a property with a permit that has expanded into a CAFRA zone without a permit, I would advise you there is a CAFRA issue, and that needs to be addressed by the DEP,” Broberg said.

BRSA engineer Brian Murphy, of FWH Associates, Toms River, said the BRSA approached JCP&L to acquire property in order to have the wind turbine cross over JCP&L’s property. Both companies explored executing an easement instead of taking any land, but DEP wanted no easements on the property, Murphy said.

“It became apparent that we would have to cut off a piece of property,” he said. “JCP&L agreed that they would provide an arc based off the center of the turbine around to provide the sweep of the turbine. That’s where we are at today, cutting off that arc out of the JCP&L property and adding it to the Bayshore Regional Sewerage Authority.”

Granata said a memorandum of agreement was executed between the BRSA and JCP&L. A letter was submitted from JCP&L dated Oct. 12 to the Union Beach Planning Board stating that the company “has entered into an agreement with the Bayshore Regional Sewerage Authority for a subdivision of an arc only to provide clearance for the proposed wind turbine project.”

Members of the Planning Board stated that agreement was supposed to be done prior to any construction, but the footing for the 240- foot-tall concrete pedestal for the turbine is already in the ground.

After the vote, no public comment was taken. Comments from residents will be heard when the application is resubmitted in February.

Following the meeting, a group of residents opposed to the turbine said they are waiting for action on bill S-2374, sponsored by Sen. Sean T. Kean (D-11th District) and Sen. Andrew R. Ciesla (D-10th District) that prohibits citing of industrial wind turbines within 2,000 feet of any residence or residentially zoned property.

To date, the state Legislature’s Environment and Energy Committee has not posted the bill for a vote.

In an interview after the meeting, BRSA Executive Director Robert Fischer said the authority expects the zoning issue to be resolved in one to two months before construction can be completed.

“It [the plan] is going to remain the same, but what I understand here is that the Borough Council will be hearing a change to the ordinance that was incorrectly drafted to show us in an R-8 residential zone,” Fischer said.

“We are obviously a large industrial site. We are not in an R-8 zone. A mistake was made by the engineer that put us in an R-8 zone on a map only, but not in the ordinance. The board ruled here tonight otherwise. Be that as it may, the move here now is to change the map to correctly reflect that we are not in a residential zone, we are in an industrial zone. If that happens, we don’t have need for a variance. It is the change of the lot line with no variance requests at all.”

The BRSA serves the communities of Hazlet, Union Beach, Matawan, Aberdeen, Keyport, Keansburg, Holmdel and Marlboro.