May 16, 2012
New Jersey

Parties could be back in court over wind turbine

By Daniel Hubbard | Wayne Patch | wayne.patch.com | 16 May 2012

Representatives for Robert Burke and the township could be back in court over the matter of Burke wanting to install a wind turbine at his place of business.

Robert Fettweis, the attorney representing Burke, has asked the presiding judge in the case that the matter be brought back to court because the parties have failed to reach a settlement agreement regarding Burke placing a wind turbine at his business, Wayne Auto Spa.

“At this point, the plaintiffs have despaired of reaching an agreement with parties that give every appearance of being uninterested in participating in the settlement process,” Fettweis stated in a letter dated May 9 to Federal District Court Judge Joseph Dickson. “Too much time has elapsed. Under the circumstances, we respectfully but reluctantly request that the case be restored to the active calendar for further proceedings.”

The clerk’s office in the U.S. Courthouse in Newark said the case has not been placed on Dickson’s calendar.

Burke applied to construct a turbine with 6-foot long blades on it in 2007. The Planning Board denied Burke’s application in October 2008 citing a lack of expert testimony and concerns about safety and noise.

The matter has dragged on in court for years.

State Superior Court Judge Donald Volkert overturned the denial in July 2010. In his decision, Volkert said that the board improperly denied the application due to the concerns. The Planning Board approved the application in December as part of the agreement.

The case has since been moved to federal court.

According to the letter, representatives for Burke and the council met with Dickson on April 18 to try to arrive at a settlement agreement. Representatives for the council presented a draft settlement agreement at that meeting.

The parties informally agreed that Burke would respond to the agreement by April 23 and that representatives for the council would reply to that response “in three or four days,” according to the letter.

The letter states that because Burke was summoned to jury duty on April 23 and Fettweis had to undergo pre-surgery testing, his response to the agreement would be delayed until the next day. According to Fettweis’ letter, the town’s response was due between April 27 and 30.

That timetable, it was expected, would enable a final agreement to be presented to the council in closed session on May 2 and for final approval on May 16.

Fettweis said in the letter that he has not received any contact from Thomas Scrivo or Ryan Mulvaney, two of the lawyers representing the town council, regarding the case. The letter was sent to them and to town counsel Matthew Giacobbe.

Township Clerk Paul Margiotta said that no closed session was held on May 2 and that the matter was not discussed. Margiotta also said that there is nothing on the May 16 meeting agenda regarding the case.

Burke and Fettweis declined to comment. Giacobbe did not return messages seeking comment.

URL to article:  https://www.wind-watch.org/news/2012/05/16/parties-could-be-back-in-court-over-wind-turbine/