WAYNE – Residents who live near the Wayne Auto Spa won’t see a much-disputed wind turbine go up while the carwash owner remains locked in a legal battle with the township.
A stay signed by State Appellate Court Judge Joseph Yannotti prevents carwash owner Robert Burke from installing the 49-foot structure at his Hamburg Turnpike business pending the outcome of an appeal filed by the township of a prior court approval of Burke’s wind turbine application. The township received notice on Monday that the stay was granted, about six weeks after Burke sought a building permit to install the region’s first turbine.
In July, Superior Court Assignment Judge Donald Volkert Jr. in Paterson found that the township Planning Board had improperly denied Burke’s application in September 2008 and granted him approval. The township appealed the decision in November and sought a stay to maintain the status quo at the site pending the appeal.
The township argues in papers filed with the Superior Court Appellate Division that the Planning Board’s questions regarding noise and safety concerns have yet to be answered.
“If the board’s concerns are correct, then allowing the turbine to be constructed pending appeal would endanger health and safety and thus constitutes irreparable harm,” the township argued.
Board Attorney Matthew Cavaliere said the appellate judge made the “correct ruling” in issuing the stay under the circumstances, adding “in my view it doesn’t make sense for the neighbors, or for that matter even the applicant, to go ahead and build this thing. If the Appellate Division reverses [the prior court decision], then it has to be dismantled.”
William Potter, Burke’s attorney disagreed.
“You can always take down a monopole with a propeller on top,” Potter said. “It wasn’t like we were going to move a mountain.”
The Planning Board denied the application for the wind turbine at the quick lube and carwash two years ago after Burke rejected a board request to schedule another in a continuous series of hearings. Burke had pushed for a vote at the final meeting held, because a newly adopted township ordinance that would have prohibited his project would soon go into affect.
Municipal land-use law does not require an applicant to agree to continue a case, and state statute requires a planning board to make a decision under a set timeline unless the applicant consents to an extension, according to the Superior Court decision.
The court also found that it was improper for the board to deny the application based on noise and safety concerns. The board should have granted minor site-plan approval and used its authority to place reasonable conditions to mitigate any noise or safety impacts, the judge ruled.
Cavaliere said the township will ask the appeals court panel to consider which takes precedence: an objector’s right to present concerns or the law that sets timelines for deciding an application. The township also will ask the appeals judges to consider whether the board has the right to request testimony to address safety concerns on such an application.
But Potter said he was “very comfortable” Burke would prevail before the Appellate Division.
“It’s just a shame it has to be delayed,” Potter said.
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