March 28, 2012
New Jersey

Turbine court case a four-year legal battle

Mike Davis, Atlanticville, atl.gmnews.com dated March 29, 2012

UNION BEACH – Four years after the Bayshore Regional Sewerage Authority (BRSA) announced plans to construct a 380-foot-tall wind turbine at its Union Beach headquarters, the state Appellate Court heard oral arguments by attorneys representing BRSA and the borough of Union Beach, which seeks to block the project.

In 2008, the Union Beach Unified Planning Board (which includes the zoning board) said the turbine would not conflict with zoning on the BRSA property.

But because the turbine would be built on Conaskonk Point, part of a state-designated Coastal Management Zone, the BRSA was required to obtain a Coastal Area Review FacilityAct (CAFRA) permit from the New Jersey Department of Environmental Protection (DEP).

When the DEP reviewed the project, it decided that the authority had to acquire part of an adjoining parcel of land owned by Jersey Central Power & Light.

Due to the size of the turbine’s proposed 140-foot-long blades, approximately 45 feet of clearance was needed on the JCP&L property. JCP&L complied with the authority’s plan, and the CAFRA permit was issued in May 2010.

However, JCP&L requested the authority go to the Union Beach Unified Planning Board to subdivide and acquire the parcel in question.

The application required the board to issue a variance, since the parcel in question was a nonconforming use within the zoning of the BRSA headquarters.

The board refused to hear the application in December 2010, requiring the authority to fill out an application to the zoning board instead.

BRSA filed suit, stating the zoning map was in error and did not require a zoning variance.

InApril 2011, a trial court ruled in favor of the BRSA, ordering the unified board to hear the application.

Before the hearing could be held, the borough sought an injunction in the Appellate Division, which granted a stay on April 25, pending the borough’s appeal.

The BRSA filed a motion to dismiss the appeal in July 2011 after it used eminent domain to acquire the JCP&L parcel in question. The court denied the motion in August.

In the fall, after the Independent newspaper reported that the BRSA executive director said the authority had been advised it could transport the turbine materials to the site before the court had ruled, Union Beach filed a motion to accelerate the appeal so it could be heard before the transport could take place. Local towns and Monmouth County have not yet approved the transport route.

The appellate court denied this motion in December but scheduled a tentative date in January, eventually moved to March 21.

If the appellate court rules in favor of Union Beach, it would reaffirm that the borough’s Planning Board had the right to deny the authority’s application for a variance, despite state approval from the DEP.

A court ruling in favor of the BRSA, would mean that the CAFRA permit issued by the state trumps any municipal land use decision.

The BRSA services and is governed by commissioners appointed by the boroughs of Union Beach, Keyport and Keansburg and the townships of Holmdel, Hazlet, Aberdeen and Marlboro.

URL to article:  https://www.wind-watch.org/news/2012/03/28/turbine-court-case-a-four-year-legal-battle/