Construction of a 380-foot-tall industrial wind turbine proposed by the sewerage authority in Union Beach could set a precedent for land use decisions across the state, attorneys argued in the Appellate Division of Superior Court in Trenton last week.
Union Beach special counsel Stuart Lieberman argued that the intent of the CoastalArea Facility Review Act (CAFRA) permit granted to the Bayshore Regional Sewerage Authority for the turbine in May 2010 does not override the authority of local municipalities to make land-use decisions.
“The CAFRA zone … is in part of eight counties. A geographical map will show you it’s almost all of Cape May, much of Cumberland and a few others down there…,” Lieberman, of Lieberman Blecher in Princeton, said on March 21.
Presiding Judge Mary Catherine Cuff expanded on this point.
“Wide swaths of Ocean County are in the zone. Wide swaths of Monmouth are in the zone,” Cuff chimed in.
Lieberman nodded in agreement.
“Bergen County … includes the Meadowlands Commission. Can you imagine if no land-use board could make any decisions? It’s just not what the [Legislature] intended.”
The appeal follows a Superior Court decision to allow BRSA to move forward with plans to install the turbine. The borough of Union Beach was granted a stay by the Appellate Division, pending appeal of the lower court decision.
The basis of the borough’s appeal, Lieberman explained, is that the trial court made a “reversible error” when it ruled that since the Department of Environmental Protection (DEP) approved the turbine project, it superseded any local decision.
“It [ruled] that, with approval from the DEP, no land-use decisions have to be made [on the local level]. And if it’s in a coastal management zone, no land use decisions have to be made.
“That’s just so contrary to the law,” he continued.
Arguing for the other side, Louis Granata, of Granata Zaccardi, Matawan, said that the BRSA is an instrument of the state, comparing the utility to Rutgers, the State University of New Jersey.
As such, the authority’s plans supersede any municipal land-use law requirements.
“To require the BRSA to go before a planning board is not proper. Union Beach cannot require us to truly [apply for a variance],” he said.
“The authority, because we exercise an essential government service as an instrumentality of the state, appears only before local [boards] for informational purposes, not at the request of the municipality.”
Judge Jerome St. John questioned the authority’s relationship to the state, as a municipal level utility.
“You’re saying the sewerage authority is an instrument of the state and therefore a superior government; therefore, municipal zoning and land use law has no application,” he said.
“But I think it’s pretty clear the BRSA is an instrumentality of the municipalities that created it.”
Granata replied that the bylaws of the authority state that it serves as an instrument of the state although it was created by eight municipalities.
“Apart from the fact that it’s a CAFRA permit, the authority is standing before this court and saying, because we are providing an essential government service, we appear before planning boards to give them the information that we have as to our projects and accommodate any questions they have,” Granata said.
“But they cannot tell us that we can’t do what we proposed to do on our property.”
Granata also argued that because the authority had fulfilled all the conditions of the CAFRA permit, it had been granted approval for the project and did not need municipal approval as well.
“It sounds like you’re making two arguments,” said Cuff.
“One is having this CAFRA permit saying you can build this structure in this coastal management zone. … That’s the end of the story. The local authorities have no authority over you to say yes or no to this project.
“The second part of the argument is that, as a regional sewerage authority, you … will consult with them, you will seek perhaps their advice, but you’re going to go ahead and do what you want to do,” she continued.
Lieberman argued that the CAFRA permit itself called for the applicant to obtain all other necessary approvals, including on the local level.
“What if the DEP had said to the BRSA that wind energy and the construction of a wind turbine is essential to the operation of this plant? We might be dealing with something a little different?” Judge Cuff asked hypothetically.
Lieberman replied that this situation still could pre-empt the municipality’s authority.
“Did the Legislature intend a CAFRA permit to have pre-emptive effect?” he responded.
“Not only does it not have anything like that, but the permit, in two different places, makes it very clear that other permits that are required for the approval still had to be obtained.
“[The BRSA argues that] because the CAFRA permit was issued, that the land use board, the Planning Board, didn’t have any authority to make this decision.
“The Supreme Court and this court has said … that there is no pre-emption,” he continued.
He noted that when the authority appeared before the Union Beach Unified Planning Board, it did so as an applicant, not an instrument of the state.
Lieberman also reminded the court that the authority was moving ahead with plans to transport the turbine, despite reports that not all the towns on the transport route had approved it.
Cuff assured that the three-judge panel would deliver a decision soon.
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