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New Jersey Supreme Court won’t hear appeal of controversial Union Beach wind turbine

Union Beach has been dealt a blow in its fight against the construction of a wind turbine at the Bayshore Regional Sewerage Authority after the state Supreme Court refused to consider hearing its appeal.

The denial by the state’s highest court affirms lower court rulings that said an amendment to the state’s Municipal Land Use Law trumps a borough ordinance that effectively blocked the construction of the turbine.

While this newest development ends the legal battles between the borough and the sewerage authority for now, it remains unclear whether the authority, which has already spent nearly $6 million, will continue to pursue construction of the wind turbine.

The authority is involved in a separate dispute with the project’s contractor over damage to the wind turbine during Hurricane Sandy.

“I’m very optimistic that even in light of this decision, that in the end we will prevail,” said Stuart J. Lieberman, attorney for the borough. “We will defeat this.”

The borough has been fighting the turbine for more than six years, since the sewerage authority developed plans to build the 380-foot-high project planned to cut down on the plant’s energy expenses.

But neighbors of the plant oppose the project because they say its towering presence would be an eyesore and would reduce the value of their homes.

After the state Department of Environmental Protection issued the sewerage authority a coastal zoning permit in 2009, the borough passed an ordinance regulating the construction of wind energy projects.

The ordinance, passed on Jan. 2, 2010, barred wind energy projects higher than 120 feet and implemented zoning set backs that the sewerage authority project couldn’t meet.

Two weeks later, the state Legislature added a provision to the Municipal Land Use law that limits the restrictions a community could put on wind energy projects. Among the provisions, the amended law said towns couldn’t put restrictions on projects that already received approvals under the Coastal Area Facilities Review Act (CAFRA).

The sewerage authority went to court to block implementation of ordinance and in the meantime, the borough obtained an injunction to stop construction while the appeal was pending.

In a separate court action, the sewerage authority challenged the placement of its 24-acre property into a residential zone on planning maps. In ruling the borough incorrectly put the authority in the residential zone, a Superior Court judge sent the matter back to the planning board.

Louis Granata, attorney for the authority, said the sewerage authority was waiting for the outcome of this appeal before going to the planning board. He said it’s up to the authority’s commissioners now to decide whether they’ll go that route.

Granata said that while the case was pending, the turbine was stored at a facility in Newark that was flooded during Hurricane Sandy in October 2012.

Robert Fischer, executive director of the authority, said the agency is starting mediation next month with the contractor, Conti Corp., over who should pay for the turbine’s damage. He said the turbine’s generator, its control panel and the blades were damaged.

When asked if the authority would continue to pursue siting the turbine there, Fischer said, “That is a decision of the commissioners.”

He said the authority would look to go to the planning board after mediation.

The sewerage authority treats 16 million gallons of water daily for eight municipalities in Monmouth County’s bayshore. Fischer said the plant would cut between $300,000 and $400,000 off its annual electricity bill with the single turbine. The authority spent nearly $900,000 last year to power the plant, he said.