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Supreme Court sends turbine back to Union Beach

UNION BEACH – The N.J. Supreme Court has declined to hear the borough’s suit challenging the Bayshore Regional Sewerage Authority (BRSA)’s plan to install a 380-foot wind turbine on the authority’s property.

Two lower courts previously upheld BRSA’s argument, ruling that a state statute restricting municipalities from regulating “small wind-energy systems” pre-empts the borough’s 2009 ordinance prohibiting turbines larger than 120 feet or louder than 55 decibels.

A panel of judges in the Appellate Division of state Superior Court affirmed on July 3 the earlier rulings that the statute trumps Union Beach’s ordinance.

According to BRSA Executive Director Robert Fischer, the rejection of the case by the state Supreme Court clears the way for the authority to seek approval from the borough’s Planning Board.

He said the planning and zoning boards need to correct a mapping error that erroneously placed the authority property in the residential zone.

According to Michael Sinkevich, special counsel for the borough, the confusion over zoning stems from a former JCP&L property that is zoned for manufacturing uses.

BRSA has sought to consolidate that property with the rest of its property on Oak Street, which is zoned as residential space, Sinkevich said.

Under zoning regulations, wind turbines are not permitted in residential areas without a variance, he said.

In a 2012 Appellate Court decision, a panel of judges determined the zoning boundaries were erroneous and the BRSA’s facility already exhibits a “nonconforming use.”

“The borough itself is still strongly opposed to the turbine,” Sinkevich said of Union Beach. “We feel that it is just too close to residential properties in a residential community that has already had to deal with a lot … after the hurricanes and all the damage that it’s suffered.”

When the BRSA will seek Planning Board approval depends on when discussions with the Conti Corp. over who is liable for costs to the damaged turbine are completed, according to Fischer.

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.

The Conti Corp. was contracted by the BRSA to store, ship and assemble the turbine components at the Oak Street facility.

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 the BRSA and Conti are currently discussing who is responsible for the estimated $1.6 million in damage to the turbine parts, and potential litigation is on the horizon.