Union Beach will ask the state Supreme Court to review a lower court decision that restrains the borough from enforcing an ordinance regulating the construction of wind turbines.
Two trial court judges have already ruled in favor of the Bayshore Regional Sewerage Authority (BRSA), ruling that a state statute restricting municipalities from regulating “small wind-energy systems” preempts the borough’s 2009 ordinance prohibiting turbines larger than 120 feet or louder than 55 decibels.
On July 3, a panel of judges in the Appellate Division of state Superior Court affirmed the earlier rulings that the statute trumped Union Beach’s ordinance, allowing the BRSA proposal to build a 380-foot wind turbine to be heard before the borough’s Planning Board.
However, the Borough Council approved filing an appeal of the appellate ruling to the state Supreme Court on July 10.
According to Stuart Lieberman, special counsel for Union Beach, the borough will issue a “petition for certification” asking the state Supreme Court to hear the case.
Lieberman said BRSA can still apply to be heard by the Planning Board, but he said the land use board “will not act unilaterally.”
“The land use board controls its own agenda,” he said, adding that it will decide if it is better to hear BRSA’s application or wait for the Supreme Court decision.
The borough will issue its petition on the grounds that the state statute is “unintelligible” and a belief that the law was special legislation, Lieberman said.
According to BRSA Executive Director Robert Fischer, the authority would have to seek a hearing before the Planning Board in order to move forward with the project.
“Union Beach says that a mapping error has rezoned the [BRSA] property from industrial to residential,” Fischer said. “We would have to go back to the Planning Board to have that changed.”
Wind turbines are not permitted in residential zones. In order to move forward with the project, BRSA’s property would have to be considered industrial, Fischer said.
He said no official decision had been made as to what the BRSA intends to do as of July 11.
“That’s something that would have to be discussed with the commissioners at the upcoming meeting,” Fischer said.
Lieberman said that while the borough’s turbine ordinance is pre-empted by state law, the proposal would still have to comply with other borough land use ordinances.
He said the ruling means that the land use board will not be governed by the local turbine ordinance when it evaluates this project.
The BRSA is also engaged in discussions with Conti Corp. over financial liabilities resulting from damages to the turbine components during superstorm Sandy, Fischer said.
Conti was contracted by BRSA to store, ship and assemble the turbine components at the Oak Street facility.
The nearly 200 tons of turbine parts, manufactured by General Electric, were shipped to a storage facility in the Port of Newark ahead of a planned trucking operation to Union Beach in the summer of 2012.
However, the shipment was blocked by a state Superior Court injunction after an appeals court ruled that the BRSA could not build the turbine without the approval of the Planning Board.
The components remained in the storage facility, which was ravaged by flooding during superstorm Sandy the following October.
Fischer said BRSA and Conti are currently discussing who is responsible for the estimated $1.6 million in damages to the turbine parts, and potential litigation is on the horizon.
|Wind Watch relies entirely
on User Funding