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Bayshore Regional Sewerage Authority v. the Planning Board of the Borough of Union Beach

August 10, 2012

BAYSHORE REGIONAL SEWERAGE AUTHORITY, PLAINTIFF-RESPONDENT,
v.
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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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