A clash over the siting of a 1.5- megawatt 380-foot-high industrial wind turbine will now be in the hands of the state Superior Court in Freehold.
The Bayshore Regional Sewerage Authority (BRSA) in Union Beach has filed a complaint against the borough’s Planning Board for unanimously voting down an application to realign the BRSA’s property line to provide more room for the arc of the turbine’s 118-foot-long blades.
The BRSA serves the communities of Hazlet, Union Beach, Matawan, Aberdeen, Keyport, Keansburg, Holmdel and Marlboro.
At a meeting on Dec. 8, the Union Beach Planning Board ruled that an application to consolidate a half-acre lot owned by Jersey Central Power & Light (JCP&L) adjacent to the authority’s 24-acre site was based on a zoning error and told BRSA to re-apply for a “d” variance.
The complaint, submitted by BRSA attorney Louis E. Granata, of Granata & Zaccardi, Matawan, states that the property is a “freshwater wetlands transition area” also known as Conaskonk Point.
The complaint asks the court to restrain the Union Beach Planning Board from taking any further action to “delay or interfere with the construction and operation of the project” based upon the BRSA’s permit through the Coastal Area Facility Review Act (CAFRA) from the New Jersey Department of Environmental Protection (DEP).
In May 2010, the BRSA obtained a CAFRA permit for the construction of the turbine, which would supply about half of the authority’s energy needs.
As a result of a legal action filed by BRSA the same month, Judge John R. Tassini issued an order restraining and enjoining the borough “from enforcing or taking any action under its ordinance regarding the permitting, installations, construction or prohibition of the project,” according to the complaint.
The action resulted in a gag order on the borough’s governing body barring any decisions or actions regarding the construction of the turbine.
Stuart J. Lieberman, of Lieberman & Blecher, Princeton, counsel representing the borough of Union Beach, which is opposing construction of the turbine, said that a CAFRA permit does not waive the need to obtain federal or other state or local government consent when necessary.
“The notion that just because the DEP has given a permit and they don’t have to apply for local approval is completely imaginative,” Lieberman said in a phone interview. “Every CAFRA permit says it is subject to any other permit you need, and I am not aware of any validity to the notion that simply because one agency of government has approved something, you don’t have to go to other [local] agencies.”
The application, according to an engineering review by T&M Associates, the borough engineering firm, seeks approval to consolidate the JCP&L lot that is in an R- 8 Residential zone with a lot in the M-2 Heavy-Industrial zone where the BRSA is located.
Lieberman argued that the sewer utility property is currently located in a residential zone, but Granata said the Planning Board engineer made the zoning designation in error.
Both attorneys have previously made reference to an ordinance and map adopted by the municipality in 2007 that amended the IFF/Natco Lake master plan.
BRSA Executive Director Robert Fischer previously stated that the ordinance was incorrectly drafted to show the BRSA in an R-8 residential zone.
The complaint, filed Dec. 29, states the BRSA is in the M-2 Heavy-Industrial zone as is the JCP&L lot, and alleges the borough engineer’s finding that the subdivision would “create a property with a split zone” is incorrect.
“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,” Fischer previously stated.
“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.” A1,700-square-foot pile cap foundation for the turbine has already been installed on the BRSA’s property for the project, which is being funded through state grants and the federal American Recovery and Reinvestment Act (ARRA) of 2009.
In response to the complaint, Lieberman said the BRSA needs a variance in order to expand its operations – even turbine blades – in a residential area. Homes are 1,080 feet way from the northern sector of the plant’s property.
“It is a terrible, terrible thing that this public utility is completely ignoring the will of these citizens who are their ratepayers, and shoving this turbine down their throats in a residential neighborhood,” Lieberman said. “It’s by houses, and this is completely going to cause a real insult to the health and well-being of these people to the enjoyment of their properties. The noise factor is documented, there is a strobe [flicker] effect from the light during certain times of the day, and it is absolutely unconscionable that these people would do this.”
He added, “They [the BRSA] need to take a deep breath and reconsider this assault on these nice people.”
At least one borough resident is circulating a petition around Union Beach and Hazlet calling for the recall and replacement of the BRSA commissioners for “deliberate acts that have put ratepayers’ money at risk.”