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Court Sides with Union Beach on Wind Turbine Appeal

After an injunction was granted to halt construction of the turbine in July, the Union Beach Planning Board has won their appeal against the Bayshore Regional Sewerage Authority

The New Jersey Superior Court Appellate Division ruled today that the must seek site plan approval from the Union Beach Planning Board before finishing construction of .

Attorney Stewart Lieberman, who represented the Union Beach Planning Board during the appeal, explained that the case emphasizes that while state approvals are necessary, so are local ones. 

"We won. We're very gratified that the court saw things as we suggested they be seen. The decision is important because it shows that just because the DEP (Department of Environmental Protection) has issued a permit and approval, it doesn't mean you don't have to get your local land use approvals," Lieberman said. 

The proposed wind turbine on the BRSA's property in Union Beach has been a subject of debate since plans for it were first announced in 2009. The BRSA is a government agency that handles the raw sewage of eight towns, by transporting, treating and disposing it, and discharging cleaned water into the Raritan Bay.  The authority performs this service for Union Beach, Holmdel, Keyport, Hazlet, Keansburg, Matawan, Aberdeen and parts of Marlboro. The authority bills the municipalities, which in turn bill the households hooked up to the system via sewer rates. 

In Oct. 2009, the NJ Department of Environmental Protection authorized the BRSA to advertise for bids for the project, according to facts found by the appellate court. That same month, the BRSA was issued a permit from the Coastal Area Facility Review Act (CAFRA), allowing the sewerage authority to build a 1.5 megawatt, 262-foot wind turbine on a 1,700 square-foot base with light and wire limitations to limit the negative impact on migratory birds

Due to the placement of the turbine and the length of the blades, the BRSA was required to get approval from the owner of the neighboring property, Jersey Central Power & Light (JCP&L). Instead of getting permission, the BRSA and JCP&L created a memorandum of agreement and the BRSA's purchase of the section of JCP&L's property was conditioned on a subdivision approval from the Union Beach Planning Board, the appellate court found.

The planning board denied the application on the basis that the BRSA is in a residential zone and JCP&L is in a manufacturing zone, prompting the BRSA to file a complaint challenging the denial.

The trial court found that construction in the coastal management zone, where the BRSA is located, is under exclusive control of the NJDEP and CAFRA, and therefore the turbine was allowed based on those agencies' approvals. The trial court also stated that since the BRSA had acquired the land from JCP&L, Union Beach was unable to control the land use. The court also contended that the zoning map was flawed, and that the BRSA was not in fact in a residential zone.

The appellate court reversed the trial court's decision that the NJDEP and CAFRA permits made the BRSA exempt from local zoning and land use laws. Rather, they stated that the CAFRA permit issued to the BRSA does not preempt the local government.

"The reasoning undergirding the partial summary judgement granted in favor of BRSA is fundamentally flawed," wrote the appellate court in their Aug. 10 decision.

"The fact that the wind turbine satisfies a public purpose to permit utilization of its eminent domain authority has been designated an inherently beneficial use, does not obviate the need to obtain a variance," the appellate court decision continued. "BRSA's conduct throughout the permit process is indicative of an agency which considers itself exempt from local zoning regulations"

The appellate court did not rule as to whether or not the zoning map was flawed, and left the map to be reviewed and decided on by Union Beach. Additionally, the BRSA must now seek site plan approval from the planning board for the wind turbine.

During the appeal process, the BRSA began building the turbine and even completed the base, BRSA Executive Director Rober Fischer . However, after the court , the BRSA had to halt construction and remove all construction equipment and materials from the site, Fischer explained.

No date has been set for the plan to appear before the planning board, however Lieberman said he will argue that the plan be denied because turbines are not permitted in residential zones.

"We're going to advocate that the permit is required. The [zoning] map speaks for itself. The map was adopted many years ago. If they want to put a wind turbine in a residential area, which we don't think they should, they are going to need a land use variance," Lieberman said. "But that's up to the [planning] board."

Walter White August 12, 2012 at 01:21 PM
BSRA + Arrogance + Disregard = Pay up Fisher
E Z Monn August 12, 2012 at 08:16 PM
Although I totally and completly disagree with most if not all you post here, at least you have not completly lost touch with reality. You...as well as most who post here realize BRSA in the end will eventually win this battle. But the game continues. I'm very surprised the president of the Union Beach Environmental Trust hasn't repremanded you for even suggesting that given his favorable court ruling on Friday. President huh? Never knew we had one of those in Union Beach. Is it a paid job??? Who appointed him??? Where do they get their funding??? Have all residents of Union Beach been notified of Hellers new very important leadership position in the borough Union Beach???Hmm I wasn'.t
Bill Heller August 12, 2012 at 08:35 PM
E Z...FYI, UBET is a privately funded nonprofit corporation not affiliated with the Borough of Union Beach. This will be my last comment to this article, but I promise you this wind turbine will never be built. And I also promise you that in the end, justice will be done. The BRSA misspent ratepayer monies because they have ignored warnings from both the courts and the DEP not to do any trucking or construction prior to having secured the full rights to install their wind turbine - and then they arrogantly ignored those warnings. A three judge Appellate Court panel agreed that the BRSA does not yet have the rights. And so whoever gave the BRSA the really bad advice to put ratepayer money at peril by jumping the gun and spending more than a couple of million dollars on construction and trucking should be held accountable....plain and simple.
Jane Eggebeen August 14, 2012 at 12:23 PM
Zoning ordinances are absolutely necessary to protect the HEALTH, SAFETY, and WELFARE of existing residents, who have significant personal investments in their homes. Their is no justification for placing industrial size wind turbines close to neighborhoods. We fought the fight here for our home, joining with neighbors to form a citizen group that diligently confronted officials. Go to every meeting. Hire a lawyer to show you mean business. No zoning ordinance can legitimately be changed to allow losses in "health, safety, and welfare" of many citizens.
E Z Monn August 15, 2012 at 06:09 PM
@ Bill Heller...Your corperation carries the name of the town that I live in. It's not the Bill Heller EnvironMENTAL Trust fund. That makes it my business. How can there not be an affiliation??? This should be investigated! Please don't make any promises to me. Your credibility with me on a scale of 1 to 10 is "0" One of your own "mary54" said BRSA may very well win in the end" NOT ME. I simply agreed with her. You appear to be losing control of some of your flock. As far as your not respondinmg to this artical any longer thats no surprise. We've seen that post before when you have been challenged and can't respond without repeating the same old propaganga from your web site. The zoning map is erronious and you know it. Eventually it must be changed. Inquiring minds want to know who is responsible for this multi million dollar ajustment to the zoning maps. Do you have any idea??? Some people do.

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