August 10, 2012
BAYSHORE REGIONAL SEWERAGE AUTHORITY, PLAINTIFF-RESPONDENT,
THE PLANNING BOARD OF THE BOROUGH OF UNION BEACH, DEFENDANT, AND THE BOROUGH OF UNION BEACH, INTERVENOR-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-32-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: March 21, 2012
Before Judges Cuff, Lihotz and St. John.
This appeal concerns the erection of a wind turbine on property owned by plaintiff Bayshore Regional Sewerage Authority (BRSA). On leave granted, we review an order reversing the denial of a subdivision application by the local planning board and referring the matter to the planning board for a vote on the subdivision application. We reverse and remand to the board of adjustment for consideration of the need for a variance.
BRSA is a regional sewerage authority created by the Townships of Hazlet and Holmdel and the Borough of Union Beach (the Borough). The Borough uses the BRSA to treat and dispose of its wastewater. The treatment plant in located in the Borough and is capable of treating 16,000,000 gallons of wastewater each day. BRSA uses electricity for fuel to operate onsite pumps and large pumping stations throughout the eight communities BRSA serves at a cost of $1,000,000 annually.
To reduce its electricity costs, BRSA decided to install a wind turbine. It applied for and obtained a permit from the New Jersey Department of Environmental Protection (NJDEP) to construct the wind turbine on its property, which is located in the Coastal Management Zone controlled by the Coastal Area Facility Review Act (CAFRA), N.J.S.A. 13:19-1 to -45. BRSA also applied for and received a low interest loan to fund the project from the New Jersey Environmental Infrastructure Trust and a grant from the federal American Recovery and Reinvestment Act of 2009.
Throughout the permit process, BRSA kept the local community apprised of the project. In addition to the public notice and hearings required for the CAFRA permit, BRSA appeared before the Union Beach Planning Board (the Planning Board) and the municipal governing body to inform local officials of its plan to construct two wind turbines on its property. On November 13, 2009, the municipal governing body notified BRSA that a subcommittee had been appointed to meet with the Executive Director of BRSA to negotiate a Community Benefit to "reasonably compensate the Borough and the Community as host to the renewable energy project[.]" BRSA also obtained all buildings permits, including a zoning permit, from the Borough to construct the wind turbine. On October 16, 2009, NJDEP authorized BRSA to advertise for bids for the project.
The CAFRA permit issued on October 1, 2009, and modified on October 28, 2009, authorized construction of a wind turbine. The permit provides that BRSA may erect a 1.5 megawatt, 262-foot high wind turbine (380 feet from the base to rotor tip) on a 1700 square foot pile cap foundation and all associated electrical infrastructure. The modified permit imposes certain conditions to protect migratory birds. These conditions include the prohibition of guide wires to anchor the turbine and a limitation on the lights installed on the tower to no more than the lights required by the Federal Aviation Administration. The permit is conditioned on compliance with certain conditions, including application for and receipt of federal or other state or local government approvals when such permits or approvals are necessary. No work may commence until all other required permits or approvals are in place.
The permit also required BRSA to obtain written approval from Jersey Central Power and Light Company (JCP&L), the neighboring property owner, to allow the turbine blades to rotate over its property. On November 23, 2009, approximately one month following issuance of the permit by NJDEP, an ordinance restricting the height of wind turbines in the Borough to 120 feet was introduced and eventually adopted on December 17.
In lieu of obtaining permission from the neighboring property owner, BRSA executed a Memorandum of Understanding with JCP&L to acquire the portion of its property over which the blades would rotate. The sale was conditioned on subdivision approval. In furtherance of this agreement, BRSA applied for subdivision of a .502 acre semi-circular lot to accommodate the rotation of the turbine blades. In the course of the subdivision hearing before the Planning Board, Borough counsel contended BRSA required a variance because the BRSA and JCP&L properties were located in different zones. The Planning Board agreed, found BRSA required a use variance, and denied the subdivision application.
BRSA filed a complaint in lieu of prerogative writs challenging the denial of its subdivision application. The trial judge held that construction in the coastal management zone is under the exclusive control of NJDEP, the CAFRA permit issued by NJDEP permitted the turbine blades to extend over the property owned by JCP&L, and the Borough cannot deny or control the use allowed by the permit. The judge also held that a mapping error existed in the zoning map, that the Borough cannot require BRSA to apply for a use variance, and ordered the Planning Board to vote on the BRSA subdivision application.
This court denied an application for a stay on an emergent basis but granted leave to appeal. In the meantime, BRSA filed a declaration of taking of the JCP&L property subject to the subdivision application. The trial court filed a final judgment fixing just compensation on May 27, 2011.
On appeal, the Borough argues that NJDEP does not have exclusive jurisdiction of municipal land use decisions in the coastal management zone, the CAFRA permit issued to BRSA does not preempt the jurisdiction of the Planning Board, the Planning Board's decision is supported by substantial credible evidence in the record, and acquisition of the disputed property by BRSA does not exempt BRSA from compliance with local zoning and planning provisions.
BRSA responds that the Borough has no jurisdiction over the use of property in the coastal management zone, NJDEP has exclusive jurisdiction over uses allowed in the coastal management zone, and the acquisition of the JCP&L property over which the turbine blades will rotate obviates the need for subdivision approval or any local approval.
The reasoning undergirding the partial summary judgment granted in favor of BRSA is fundamentally flawed. CAFRA and the regulations promulgated pursuant to its authority do not preempt local zoning authority. Lusardi v. Curtis Point Prop. Owners Ass'n, 86 N.J. 217, 229 (1981). In Lusardi, the Court explained that "[a]lthough [the CAFRA regulations] do not preempt local zoning authority, they embody carefully considered policies for the use of coastal resources that local officials must take into account in zoning shoreline property within their communities." Ibid.
More recently, in Bubis v. Kassin, 184 N.J. 612 (2005), the Court elaborated on the relationship between CAFRA and local zoning authority. The Court explained that state legislation preempts local legislation, such as a municipal zoning ordinance, when the ordinance forbids something expressly authorized by statute or the ordinance permits something a statute prohibits. Id. at 629. The Court also noted that a preemption analysis requires a determination whether the field or subject of the ordinance occupies the same field or subject matter as the statute. Ibid.
The Court held CAFRA did not preempt the local zoning ordinance because neither governed the same field. Ibid. The Court explained:
CAFRA and the [local] Zoning Ordinance do not govern the same field. We discern this from the face of the statute and the ordinance. CAFRA governs dune creation and maintenance; the ordinance makes no mention of dunes at all but discusses fence height and location. Because the ordinance and CAFRA do not attempt to regulate the same activities, they do not conflict.
Moreover, the purposes and subject matters of the statute and ordinance are distinct. The legislative purpose of CAFRA is to "preserve[ ] the most ecologically sensitive and fragile area from inappropriate development and provide[ ] adequate environmental safeguards for the construction of any developments in the coastal area" in a manner that is "in the best long-term, social, economic, aesthetic and recreational interests of all people of the State." N.J.S.A. 13:19-2. The ordinance operates on a smaller scale and simply sets forth a general objective for the beach zone in [the municipality] . . . . Thus, neither the purpose nor the specific provision of the ordinance at issue usurps the [NJ]DEP's authority over dunes. [Id. at 629-30 (citation omitted).]
Moreover, the very language of the CAFRA permit issued to BRSA belies the position advocated by it that the local zoning and land use ordinances had no bearing on its installation and operation of the wind turbine. The permit expressly provided that BRSA must obtain all federal and other state and local approvals when necessary and no construction may commence until all permits and approvals have been secured. In this instance, NJDEP through the CAFRA permit did no more than conclude that the proposed activity was not inimical to the purpose of coastal zone management. The permit does not obviate the need for other appropriate authorities to review a proposed project.*fn1
Having concluded that NJDEP through the CAFRA process does not have exclusive jurisdiction over installation and operation of the wind turbine project, we must determine whether the issue of subdivision is moot due to the acquisition by BRSA of the JCP&L property which was the subject matter of the subdivision application. We hold that the need for subdivision is negated by acquisition of this property through the agency's eminent domain authority. It also negates the need to obtain the permission of the adjacent property owner as required by the CAFRA permit. It does not, however, resolve the issue of whether BRSA is required to obtain a use variance to install and operate a wind turbine on its property.
In her opinion, the judge acknowledged that the zoning map places the BRSA property in one zone, a residential zone, and the JCP&L property in another zone, a manufacturing zone. She also acknowledged the BRSA activities on its property are non-conforming uses according to the map. She found, however, that the depiction of the boundaries of the zones on the map was erroneous. In doing so, the judge rejected a finding of fact by the Planning Board that was supported by substantial credible evidence in the record. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). This error also provided the primary support of the trial judge's decision to reverse the Planning Board reference of the BRSA wind turbine project to the board of adjustment for a use variance.
In addition to its argument that NJDEP through the CAFRA permit process has exclusive jurisdiction of its wind turbine project, BRSA also argues that its acquisition of the piece of property from JCP&L demonstrates the public purpose of this project, thereby refuting the applicability of the local zoning ordinance. The Borough responds there is no support for this proposition. We agree. The fact that the wind turbine satisfies a public purpose to permit utilization of its eminent domain authority and has been designated an inherently beneficial use, N.J.S.A. 40:55D-4, does not obviate the need to obtain a use variance.
BRSA'S conduct throughout the permit process is indicative of an agency which considers itself exempt from local zoning regulations. See Rutgers v. Piluso, 60 N.J. 142, 154 (1972) (directing a governmental instrumentality not subject to local zoning to consult and consider local objectives, problems and suggestions); Ocean County Utils. Auth. v. Planning Bd. of Berkeley, 221 N.J. Super. 621, 631 (Law Div. 1987) (directing county utilities authority to submit plan for informational purpose), aff'd, 223 N.J. Super. 461 (App. Div. 1988). Yet, BRSA has not raised this argument. Instead, it relies on its argument that the CAFRA permit preempts local zoning requirements.
We, therefore, reverse the order granting partial summary judgment and return this matter to the Planning Board to approve the site plan submitted by BRSA. By reversing this order, the matter shall proceed to the board of adjustment. The board of adjustment may consider whether the map incorrectly places the BRSA property in a residential zone that renders its use non-conforming thereby requiring a use variance. If the board of adjustment determines the map is correct, it may consider the use variance. In considering any use variance, the board of adjustment must recognize the primacy of the conditions designed to protect wildlife imposed by NJDEP in the modified CAFRA permit. See Tumino, supra, 319 N.J. Super. at 525-28.