A state law prohibiting Union Beach from blocking the construction of a large wind turbine may have been illegal “special legislation” written with input by a lobbyist, according to an attorney for the borough.
Stuart Lieberman, special counsel for Union Beach, appeared Feb. 12 in the Appellate Division of state Superior Court in Mount Holly, seeking to overturn an earlier trial court ruling in favor of the Bayshore Regional Sewerage Authority (BRSA), which is seeking to build a 380-foot turbine in the borough.
“We believe this was special legislation, and we believe it is the only wind turbine that this was meant to apply for,” Lieberman told the three-judge appellate panel. “We would like to be able to pursue that. … We fought for that, and it has all been ignored.” Union Beach enacted an ordinance prohibiting turbines above 120 feet in late 2009. A month later, the state passed a law preventing towns from placing “unreasonable limits or hindrances” on small windenergy systems.
Citing that law and a state permit granted to the BRSA, two lower-court judges in separate cases found in favor of the authority, ruling that Union Beach’s ordinance could not block the turbine. Last week, Lieberman told the appellate court that the state law was tailored specifically for the BRSA’s turbine, which would make it illegal.
Lieberman said the law may have been drafted by a lobbyist retained by the BRSA when the turbine project was first proposed about seven years ago.
According to BRSA special counsel Louis Granata, the lobbyist was selected because he had previously worked with the state Department of Environmental Protection (DEP), the agency that would have to issue the authority a wetlands permit to move ahead with the project.
In court, Granata said there were “no regulations” in the state regarding turbines for public entities.
“There was nothing,” he said. “And the DEP, when we made our application, asked us to cooperate and help them develop regulations for this. [He] happened to be somebody that is very familiar with the DEP and has worked with them.”
The wetlands permit was issued on Oct. 28, 2009. Granata said the BRSA held numerous public information sessions and appeared before the Union Beach Planning Board with plans for the project, giving residents and officials a chance to object to the plan. The borough also had 60 days to appeal the DEP permit approval, he said.
“Union Beach didn’t do that,” he said.
The borough first introduced its turbine height ordinance in late November 2009.
In 2010, a state Superior Court judge in Monmouth County ruled that the DEP permit trumped the Union Beach ordinance and restrained the borough’s Planning Board from enforcing the height restriction on the BRSA turbine.
BRSA was still required to receive all other required approvals from the local Planning Board. In 2012, another Superior Court judge once again ruled in favor of the BRSA, citing both the DEP permit and the state statute.
Lieberman said he filed court documents seeking to address the “special legislation” issue regarding the state law, but the judge moved for judgment without considering it.
Lieberman also criticized a subsection of the state law, which specifically addresses turbine projects that received a Coastal Area Review Facility Act (CAFRA) permit from the DEP before January 2010.
The BRSA turbine is the only project in the state that fits that description, Lieberman said.
Granata testified that BRSA board members were not involved in the drafting or approval of the law, and that the BRSA project was the first of its kind in the state. The authority only cooperated with the DEP to help develop rules and regulations for the unprecedented work, he said.
Lieberman also said the lobbyist may have continued working for the BRSA after the spring of 2010, when a gubernatorial order officially banned public entities from employing lobbyists.
Granata acknowledged the fact, but said the lobbyist has not worked as a lobbyist for the BRSA since spring 2010.
“He did appear before the Legislature. He was also questioned by the ethics board of the state as to whether he was acting as a lobbyist at the time he appeared … and he was cleared of that,” he said, adding that this was a “non-issue.”
According to the BRSA, which is headquartered on Oak Street, the turbine could generate up to 50 percent of the plant’s power. Residents and local officials said the turbine, which would stand taller than the Statue of Liberty within 1,100 of a residential community, would negatively impact their quality of life and property values.
The multimillion-dollar turbine, manufactured by General Electric, was significantly damaged while being stored in the Port of Newark during superstorm Sandy. BRSA officials put the project “on the back burner” following the storm, which also wreaked havoc on the authority’s treatment plant. They have not yet commented on the future of the project.
The three-judge appellate panel – presided over by Judge Karen Suter – is expected to hand down a decision in approximately two months.
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