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Superior Court rules for BRSA; Union Beach cannot enforce turbine ordinance

FREEHOLD – The Bayshore Regional Sewerage Authority (BRSA) scored another victory in court today in its fight with the borough of Union Beach over a controversial wind turbine project.

State Superior Court Judge Honora Kilgallen heard cross motions from both parties at the Monmouth County Courthouse in Freehold on Oct. 19 relating to a court-mandated restraining order placed on the borough two years ago, ultimately deciding to keep it in place.

The restraining order, issued by Superior Court Judge John Tassini in 2010, prevents Union Beach from enforcing a borough ordinance passed in 2009 that restricts the height of wind turbines in town to 120 feet.

Union Beach attorney John Lane filed a motion with the court last month seeking to have the restraining order dissolved, stating that many of the facts considered in Tassini’s ruling had been overturned by an appellate court earlier this year.

BRSA, a sewage utility that has been trying to erect a 380-foot turbine at its headquarters property on Oak Street since 2008, filed an opposing motion through its attorney, Louis Granata, to keep the restraining order in place.

Both parties’ arguments centered on a Department of Environmental Protection (DEP) permit which had been issued to BRSA prior to the passage of Union Beach’s turbine ordinance.

In her decision, Kilgallen said that the DEP permit – in conjunction with a state statute passed shortly after the Union Beach ordinance that forbids municipalities from imposing unreasonable restrictions on turbine projects – prevented the borough from applying its ordinance to the BRSA turbine.

She further clarified that her decision does not invalidate the ordinance entirely, it only applies to the BRSA project.

Following the decision, Lane and Union Beach special counsel Michael Sinkevich said there are still a number of unresolved issues that had not been argued during the hearing, which the borough plans to argue in the future.

Granata declined to comment.

The next step for both parties would be the Union Beach Unified Planning Board, where the BRSA – under orders from the appellate court – must appear and seek approval before moving ahead with the project.

Among other issues, the planning board will have to rule on the zoning classification of the Oak Street property, which borough officials say prevents BRSA from building a turbine there without requesting a use variance and BRSA officials contend is erroneously based on a mapping error.

That hearing is scheduled for Oct. 31, though after today’s decision Lane said there was a “small chance” the hearing could be delayed as a result of continuing litigation.