A Minor Loss for Union Beach In The Wind Turbine War

This past Friday, the people of Union Beach lost a lower court decision in their efforts to prevent the construction of a 386-foot tall industrial wind turbine at the Bayshore Regional Sewerage Authority's plant.

In Freehold, Superior Court Judge Kilgallen upheld Judge Tassini's decision of two years ago that effectively restrains Union Beach from enforcing its existing wind turbine ordinance. That ordinance restricts the height of a wind turbine to a maximum of 120 feet.

It is a minor loss. Union Beach is no worse off now than it was prior to this ruling. Plus, Union Beach can now appeal the ruling if they decide to. I was at the hearing, and I believe Union Beach's attorneys, John Lane and Michael Sinkevich, did a good job of paving the way for just such an appeal.

The turbine, with blades each the size of a cell tower, would sit a little over 1,000 feet from the start of a densely populated neighborhood.

At issue are noise and resulting health concerns, loss of view shed, danger to wildlife, and diminishment of home values and the tax base. Plus, many challenge the BRSA's overly optimistic claims of fiscal savings. If this 38-story Windzilla were planned for your town down the street from your home, please imagine how you would honestly react.

In her ruling, Kilgallen cited what has become known as the "Infamous Subsection C" as the reason for her decision.

In January of 2010, the NJ legislature passed Statute 40:55D-66.12 to supplement NJ's existing wind energy laws. Subsection C was not included in earlier drafts, and was added by Senator Bob Smith (D-17) for the final passage. Smith chairs the Environment and Energy Committee and has been a big booster of the BRSA's plans to build the turbine from the concept stage. He even appears on their website in the wind turbine promo video on their home page.

It is the belief of many familiar with this fight that Subsection C was actually written by Fred DeSanti, the BRSA's lobbyist, for inclusion in the bill. It is not uncommon for lobbyists to ghost write legislation. Either way, Subsection C was written to specifically handcuff Union Beach. A link to the statute is below. Please note that at the time the statute was passed, Union Beach was the only municipality in NJ to fit the scenario, having been the only one issued a CAFRA permit prior to January 16 for an industrial wind turbine in the planning stages. We believe this makes Subsection C what is known as a "single use law," technically unconstitutional.

40:55D-66.12: http://www.dsireusa.org/documents/Incentives/NJ17Rb.htm.

The next phase of the wind turbine war will be decided by Union Beach's Planning Board as prescribed by the Appellate Court in their unanimous decision in favor of Union Beach. At upcoming meetings, the board will determine the correct zoning of the BRSA property, and also grant or deny the BRSA the appropriate variance subject to the zoning decision. The BRSA has hired their own special counsel and he will likely challenge the outcome of these confrontations should the BRSA not get their way.

And so the war will rage on, and the ratepayers will continue to pick up the tab for the BRSA's pursuit of a monstrosity of a boondoggle (see my prior blog posts). In the end, my money is on a big win for the people of Union Beach and neighboring homes.