August 15, 2012
New Jersey

BRSA will ask appeals court to reconsider ruling

BY KEITH HEUMILLER, Staff Writer | Independent | ind.gmnews.com 14 August 2012

It appears the fight over the Union Beach turbine project is still a long way from being over. In an interview Tuesday morning, Bayshore Regional Sewerage Authority (BRSA) Executive Director Robert Fischer said the authority plans to ask the Appellate Division of state Superior Court to reconsider its Aug. 10 decision that sidelined the authority’s controversial wind turbine project.

The authority will be asking to court to review its opinion on a zoning dispute between the BRSA and Union Beach.

In a unanimous decision welcomed by opponents of the project, the court ruled in favor of Union Beach, blocking the BRSA from constructing a 380-foot industrial wind turbine at its Oak Street headquarters without the approval of the borough.

“Obviously we are gratified by the court’s decision,” said Stuart Lieberman, the attorney who filed the appeal and requested the injunction as special counsel to the Union Beach Planning Board. “And I am happy for the people who live nearby the area where this monstrous project was proposed.” Fischer disagreed with the decision, saying it will only the delay the project and increase expenses.

“Who knows how long it could take,” he said. “They are doing what they said they were going to do since the beginning – stalling.” On Aug. 14 Fischer said the authority was already in the process of dismantling the nearly 300-foot crane that has been standing on-site for weeks in preparation for the turbine’s construction.

Estimating that it should be completely disassembled and trucked offsite by Aug. 17, Fischer said the crane was simply too costly to keep while the various legal and municipal proceedings play out.

“This could take a number of months to get straightened out,” he said, “and we can’t afford to rent the crane throughout that process.”

The appellate decision, which overturned an earlier trial court finding in favor of the BRSA, requires the authority to appear before the Union Beach Unified Planning Board before moving ahead with plans to construct the turbine.

The project now hinges on the zoning classification of the BRSA property. Currently, borough zoning maps list the headquarters as residing in an R8 residential zone, which Fischer said was changed from an industrial zone in error.

“We were not given notice of the change at the time it occurred, and there is no ordinance on file stating that this zoning change had taken place,” he said.

“Why would you take a sewerage authority like ours and put it in a residential zone? What reason would you have to do that?”

Lieberman said following the decision that he doesn’t believe the zoning designation should be changed.

“That has been in place for years now,” he said. “It shouldn’t be disturbed. The time to challenge it is long, long past.”

The zoning issues revolve around the two different properties involved in the turbine project.

In order to satisfy requirements for a state Department of Environmental Protection (DEP) coastal wetlands permit, the BRSA acquired a half-acre parcel of land from an adjoining JCP&L property in order to provide clearance for the turbine’s 118- foot-long blades as they spin.

That property, which was acquired by the BRSA via eminent domain last year, is currently listed in an industrial zone.

Because the two properties are situated in different zones, the authority would be required under borough zoning laws to apply for a use variance in order to utilize the acquired property for the turbine.

In April 2011, the trial court found that the BRSA property’s residential zoning classification was flawed, eliminating the need for a variance from the planning board before building the turbine.

Last week’s appellate decision overturned that ruling, stating that the trial judge “rejected a finding of fact by the planning board that was supported by substantial credible evidence in the record.”

According to the appellate decision, the Union Beach board of adjustment will now have to decide whether or not the BRSA property was properly zoned.

If the board decides to uphold the residential zoning change, the BRSA will then be required to submit its turbine plans to the planning board and request a variance.

Fischer said Louis Granata, the authority’s attorney, had submitted a request to the Union Beach planning board to be added to the next meeting’s agenda.

The BRSA, a joint sewerage utility serving Union Beach, Keyport, Keansburg, Holmdel, Hazlet, Aberdeen and parts of Marlboro, is funded by user fees that each participating municipality collects from residential and commercial rate-payers.