Wind Turbine Dispute Goes To Court
By Ryan Fennell
UNION BEACH – And so it begins.
The dispute over the proposed construction of a 1.5-megawatt, 262-foot high wind turbine, reaching 380 feet at peak height, by the Bayshore Regional Sewerage Authority in Union Beach will now be argued in the courts.
The BRSA has filed suit against the Union Beach Planning Board in response to a recent decision by the board to deny the BRSA's application to subdivide and consolidate a portion of land on a neighboring property.
The planning board rejected the BRSA application on the grounds that the BRSA needed to apply for a "D" variance and did not do so in its application.
The BRSA lawsuit demands that the Planning Board's action requiring the BRSA to file for a "D" variance and denying subdivision and consolidation of the adjoining property are set aside and be granted an approval of the proposed subdivision and consolidation.
The suit also demands that the planning board be restrained from any further action to delay or interfere with the construction and operation of the project.
The dispute over the project began long before the planning board's decision.
Discussions regarding the wind turbine project began in December 2008 between the BRSA and the Union Beach Borough Council where the BRSA informed the governing body that several public information meetings would be held throughout the year Mayor Paul Smith told The Two River Times™ in May 2010 Smith said the meetings lacked transparency and were not held as discussed in December 2008.
BRSA Executive Director Robert Fischer, also in May 2010, told The Two River Times™ that three public forums were held in addition to an open house and availability of informational DVD's.
In October 2009, BRSA received a Coastal Area Facility Review Act (CAFRA) permit from the NJDEP to move forward with wind turbine project.
The Union Beach governing body then adopted an ordinance that would limit and restrict wind turbines within the borough.
The BRSA filed an Order to Show Cause to restrain the effects of the ordinance on its approved project. In May 2010, Monmouth County Superior Court Judge John R. Tassini issued an order restraining and enjoining the Borough of Union Beach "from enforcing or taking any action under its Ordinance regarding the permitting, installation, construction, or prohibition" of the BRSA wind turbine project.
In August 2010, the BRSA filed an application with the Union Beach Planning Board to subdivide a portion of property owned by its neighbor, JCP&L. The blades of the proposed wind turbine would exceed the BRSA property line and as a Physical Condition of the CAFRA permit, the BRSA needed to obtain written permission from JCP&L to allow the turbine blades to rotate over JCP&L's property.
The BRSA and JCP&L entered into a Memorandum of Understanding, an agreement that stated the BRSA would purchase a crescent-shaped portion of the JCP&L property equaling approximately .5 acres.
The planning board scheduled a hearing on the application for November 2010.
At the hearing the BRSA described the application as a subdivision of the JCP&L property and consolidating it with the BRSA property with no construction or change of nature or character of the acquired property.
The planning board engineer submitted his review of the application at the hearing and determined that while the JCP&L property was located in a Heavy Industrial Zone, the BRSA property was in a Residential Zone and "the proposed subdivision will create a split zone property, which is not desirable."
At the hearing Union Beach Special Counsel Stuart Lieberman of Lieberman & Blecher, requested a stay or denial of the application based on legislation introduced in the State Assembly (A3473 and S2374) addressing setbacks for wind turbines.
The planning board granted an adjournment to December 2010 despite objection from Louis Granata of Granata & Zaccardi, the attorney representing the BRSA.
Prior to the hearing held in December Granata sent a letter to the planning board that claimed the pending Assembly bill would have no effect on the CAFRA permit because, "the action of the planning board cannot interfere with, limit or negate the permit issued by the DEP," because "the use of the property is not subject to planning board approval because the NJDEP had exclusive jurisdiction over the (BRSA) and the Coastal Wetlands."
Granata also argued that the borough engineer was mistaken in his determination that the subdivision would create a "split zone."
Granata cited two zoning maps; one dated 1999 and one dated 2008. The 1999 map shows the both properties, BRSA and JCP&L in the M-2 Heavy Industrial Zone. The 2008 map shows the BRSA in the R-8 zone. However, Granata said that the legend on the 2008 map does not cite any ordinance for the change and in his search he has found no evidence of an ordinance changing the zone.
In response to Granata's letter to the planning board, Lieberman sent a letter to the board claiming that the BRSA needed to apply for a use variance since the property is in a residential zone because the BRSA seeks to expand a non-conforming use by enlarging the size of the R-8 zoned lot.
The planning board agreed that the BRSA needed to apply for a "D" variance and declared the BRSA application deficient.
"The ironclad fact of the matter is that the map that was filed and approved by the governing body shows this as being a residential area," Lieberman said. "They seem to think that because the DEP gave them a permit, they don't have to comply."
"I'm not aware of even an ounce of authority for this very, very novel and imaginative position," Lieberman added. "There is no case that I'm aware of at all that says a sewerage authority doesn't have to apply for a use variance and there's no case that I'm aware of at all that suggest that simply because one agency in the government has given you an approval that you can avoid any other agency."
Granata could not be reached for comment because he is out of the country until February according to his law office.