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BRSA, boro go back to court

The Borough of Union Beach and the Bayshore Regional Sewerage Authority (BRSA) are headed to court once again, this time over the borough’s right to restrict the height of a wind turbine.

On Oct. 12, Superior Court Judge Honora Kilgallen is scheduled to hear motions from both parties in Freehold relating to a courtmandated restraining order placed on the borough two years ago.

Borough attorney John Lane Jr. filed a motion with the court to dissolve the permanent restraining order that prevents the borough of Union Beach from enforcing a 2009 ordinance that restricts the height of wind turbines in town to 120 feet.

Lane’s motion was scheduled to be heard before Judge Kilgallen on Sept. 28, but prior to the hearing, BRSA attorney Louis Granata filed a motion with the court to have Lane’s motion denied.

According to the court’s website, both proceedings are scheduled to begin at 9 a.m.

Neither Granata, of Granata, Wernik & Zaccardi, Matawan, nor Lane could be reached for comment.

In 2008, the BRSA announced plans to build a 385-foot industrial wind turbine at its Oak Street headquarters property, a more than $6 million project the authority said would cut the sewage plant’s energy costs in half.

Some residents from Union Beach and surrounding towns are critical of the proposed project, however, saying the turbine – which would stand taller than the Statue of Liberty – would impact property values, threaten the environment and cause visual and sound disturbances.

Because the proposed turbine site is part of a state-designated Coastal Management Zone, the BRSA was required to obtain a Coastal Area Review Facility Act (CAFRA) permit from the New Jersey Department of Environmental Protection (DEP) before it could move ahead with the project. The CAFRA permit was issued to the BRSA in October 2009.

On Nov. 23, 2009, according to court records, the Union Beach Council introduced an ordinance restricting the height of wind turbines in the borough to 120 feet. The ordinance was adopted on Dec. 17.

In May 2010, Granata filed a motion with the Law Division of the Superior Court to prevent Union Beach from enforcing the ordinance.

Three days later the court found in the BRSA’s favor, restraining and enjoining Union Beach from “enforcing or taking any action under its ordinance regarding the permitting, installation, construction or prohibition of wind energy systems against the Bayshore Regional Sewerage Authority 1.5- megawatt wind-to-energy project.”

Mike Sinkevich, of the Princeton-based Lieberman and Blecher law firm that is special counsel for the borough in matters relating to the turbine, said Union Beach is seeking to dissolve the restraining order based on an Aug. 10 appellate decision which found that the BRSA’s CAFRA permit did not grant it ultimate authority to build the turbine.

“BRSA’s position through that appeal was that the DEP had exclusive jurisdiction over the coastal management zone. That was also the issue in the court decision [for the restraining order],” he said in an interview on Sept. 21.

“The borough’s position is that since the Appellate Division ruled that the DEP does not have exclusive jurisdiction, they believe the 2010 restraining order should be dissolved, since a lot of the legal reasoning behind it has been overruled.”

In an email on Sept. 23, BRSA Executive Director Robert Fischer said Union Beach’s turbine ordinance is illegal.

“After BRSA received a permit from NJDEP to install a turbine 385 feet to the tip of the blade, Union Beach created an ordinance limiting turbines in Union beach to 120 feet in height,” he said.

“The Union Beach ordinance contradicts a state law prohibiting unreasonable limits on renewable energy systems.”

The Aug. 10 appellate decision also required the BRSA to return to the Union Beach Unified Planning Board to seek a zoning variance for the authority’s Oak Street headquarters property, where it plans to build the turbine.

Originally scheduled for a Sept. 26 hearing, Fischer said the authority had been informed by Union Beach officials that it had to notify residents in the vicinity of the turbine site prior to the meeting.

In an interview on Sept. 27, Fischer said those notices were being prepared and the BRSA had been added to the Oct. 31 planning board agenda.