As with most of the litigation associated with the controversial wind turbine project in Union Beach, last week’s Superior Court decision may have created even more legal action than it resolved.
The Oct. 19 ruling, which found in favor of the Bayshore Regional Sewerage Authority (BRSA) and held in place a restraining order against the borough of Union Beach, may give rise to more appeals, additional planning board hearings, and other procedural motions of the kind that have kept the two sides’ attorneys busy for more than four years.
Superior Court Judge Honora Kilgallen, no stranger to BRSA turbine litigation, made mention of this prior to issuing her decision last week.
“No doubt, no matter how I decide this, you are going to go back to the Appellate Division,” she said during testimony.
“One side or the other will be unhappy with my determination.”
Following her decision, which upheld an earlier Superior Court ruling blocking Union Beach from enforcing a borough wind turbine ordinance, borough attorney John Lane Jr. and Union Beach special counsel Michael Sinkevich said a number of issues relating to the turbine project had been left unaddressed.
“Now we are guaranteeing that we are going to go all the way through, and then we’re going to have to adjudicate this issue again, no matter what, on appeal,” said Lane.
“Unfortunately, there’s litigation that shows no end in sight.”
The Oct. 19 case centered on a Union Beach ordinance, passed in November 2009 and adopted the following January, which restricts the height of wind turbines in town to 120 feet.
BRSA, a sewage utility serving Union Beach, Keyport, Keansburg, Holmdel, Hazlet, Aberdeen and parts of Marlboro, has been trying to erect a 380-foot turbine at its headquarters property on Oak Street since 2008. In 2010, the authority filed a motion with state Superior Court to restrain the borough from enforcing its turbine ordinance, stating it had been granted a state Department of Environmental Protection (DEP) Coastal Area Facility Review Act (CAFRA) permit to build the turbine that trumped any municipal land use laws.
The restraining order was granted by Judge John Tassini in May 2010.
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 Aug. 10 appellate court ruling that found the BRSA’s CAFRA permit did not grant it ultimate authority to build the turbine.
BRSA attorney Louis Granata then filed a cross motion, seeking to keep the restraining order in place.
The arguments heard by Kilgallen last week hinged primarily on state legislation enacted two weeks after the Union Beach turbine ordinance that essentially prevents municipalities from blocking construction of a turbine once the entity attempting to build it has received a CAFRA permit.
Kilgallen ultimately ruled that, while the borough’s turbine ordinance was valid, the state statute prevented it from being applied to the BRSA project.
“I am bound to follow the mandates and direction of the Legislature’s legislation,” she said.
“NJSA 40:55D-66.12 is a specific ordinance that is directed at this specific type of wind energy system.”
The statute includes three subsections governing how and in what instances a municipality can regulate wind energy systems in their towns.
Under subsection A, the legislation states that towns may not unreasonably restrict wind energy projects. Subsection B details what would constitute an unreasonable restriction, listing specific requirements for height, sound level, set-back distance, and electrical and structural design.
Subsection C was the main topic of discussion last week, however, as it specifically addresses the situation in Union Beach.
“If the Commissioner of Environmental Protection has issued a permit for the development of a small wind energy system under the ‘Coastal Area Facility Review Act’ [prior to the enactment of this statute], provisions of subsection B of this section shall not apply to an application for development for that small wind energy system if the provisions of that subsection would otherwise prohibit approval of the application or require the approval to impose restrictions or limitations on the small wind energy system, including but not limited to restrictions or limitations on tower height or system height.”
According to Kilgallen, the court papers filed by Union Beach for the Oct. 19 hearing stated that the statute might constitute “special legislation,” a state law that applies only to a specific class, person or situation. Certain types of special legislation are prohibited under the New Jersey State Constitution.
Following the hearing, Lane said the borough is not currently challenging the validity of the statute, but attempting to gather more information about it.
“We are the only wind energy system that at that time had CAFRA approval,” he said, “but I can’t second-read legislator’s minds. Shockingly, you can’t get a copy of the file of who asked for it, whose idea it was. It’s all privileged.
“So how this got put in there,” he added, “and whether someone sent a letter and said, hey, in Union Beach this was already approved so don’t let it be undone, it certainly looks like that.”
Lane said state plans to build hundreds of turbines both on- and offshore in the coming years could net manufacturers billions in revenue, which in turn could lead to lobbyists trying to influence legislation.
“My guess is General Electric is keeping a pretty close eye on [wind energy legislation],” he said, referring to the company that manufactured the Union Beach turbine and has been a leading supplier of U.S. wind energy systems in recent years.
In Kilgallen’s decision, she said towns like Union Beach must obey the directives of the state Legislature.
“The state’s interest in energy projects is both pervasive and comprehensive,” she said.
“As pointed out by BRSA, municipalities derive their power to zone from the state legislature. … Municipalities have no powers save those delegated to them by the Legislature and the state constitution.”
Next up for both sides is 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.
Regardless, he said, the legal battles between BRSA and the borough are a long way from over.
“It’s going to go on for quite some time,” he said.
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