Boro wants turbine appeal heard sooner; Motion cites pressure to block turbine before construction 

UNION BEACH – The borough filed a motion last week to accelerate its appeal of a court decision to allow a 380-foot-tall industrial wind turbine to be installed in the borough.

The Bayshore Regional Sewerage Authority’s (BRSA) plan to install the turbine in Union Beach has been fought in the courts all year, but the borough’s motion to accelerate asks the court to schedule oral arguments as soon as all briefing is completed, scheduled for Nov. 3.

Stuart Lieberman, special attorney to the borough in the wind turbine matter, cited statements by BRSA Executive Director Robert Fischer, reported in newspaper articles, in asking the court to speed up proceedings.

The motion to accelerate includes statements made by Fischer as reported in a Sept. 22 article in the Independent in which he was quoted as saying BRSA’s attorney advised that the turbine could be installed before legal issues are resolved.

Lieberman said the statements prompted the motion to accelerate.

“In light of this, we’re asking the court to schedule our oral arguments as quickly as possible so this doesn’t become moot,” Lieberman said in an Oct. 7 interview.

“[BRSA] is saying they won’t wait for this decision, so in light of this, we’re asking the court if they can entertain oral argument quicker.”

Lieberman said parties can often wait six months after briefing before oral arguments are heard.

“As BRSA has now made public its intention to proceed with the construction for thewind turbine notwithstanding the pending appeal, Union Beach respectfully requests that the instant appeal be accelerated so that the matters in controversy can be decided prior to BRSAtaking action,” the Sept. 29 letter accompanying the motion states.

Lieberman filed a brief on Union Beach’s behalf in court on Sept. 23. The document’s legal argument outlines the borough’s stance that municipal law remains the standard in the area surrounding the BRSA facility, where the turbine would be installed.

First, the brief argues that “the [New Jersey Department of Environmental Protection] does not have exclusive jurisdiction over municipal land use decisions in the Coastal Management Zone” and that “the [DEP’s] issuance of a CAFRApermit did not preempt the Planning Board’s jurisdiction,” the document states.

Lieberman said these arguments related to the Coastal Area Facility Review Act (CAFRA) permit that the DEP issued to BRSA.

It was the CAFRA permit that resulted in an initial victory for BRSA, when a judge ruled in its favor onApril 8, citing the exclusive jurisdiction of the DEP.

However, on April 21 another judge granted Union Beach’s application for a stay on the turbine’s construction, pending the borough’s appeal.

“There had been arguments raised that, because theDEP issued a CAFRApermit and because this is located in an area called the Coastal Management Zone, that local land use boards truly have no business deciding whether to issue local permits,” Lieberman said on Oct. 7.

“There is, as far as we know, no court decision and no statute that supports that.”

The brief cites a state Supreme Court case where it “unequivocally held that CAFRA ‘regulations do not preempt local zoning authority.’

“… So long as Union Beach’s planning and zoning decisions take into account the policies embodied in CAFRA when making such decisions, the exercise of the planning and zoning powers are valid,” the brief states.

The brief cites the CAFRA permit’s regulations, which “[provide] that ‘this permit does notwaive the obtaining of federal or other state or local government consent when necessary. This permit is not valid and no work shall be undertaken until such time as all other required approvals and permits have been obtained.’

“These statements make it clear that the NJDEP recognized that certain local approvals may be necessary,” the brief states.

The brief also argues that the Planning Board’s decision to deny BRSA’s application to consolidate its property with an adjacent lot owned by Jersey Central Power & Light (JCP&L), required because the 118-foot-long turbine blades would extend over the property line, should be upheld.

“The standard of review for a planning board decision is that a court isn’t supposed to reverse it unless it’s arbitrary, capricious or unreasonable,” Lieberman said.

“What the board did was supported by the facts and the law in the case. Even though it was presented as a simple lot line case, it really was an expansion of a nonconforming use.

“The zone the [BRSA] facility is located in is zoned residential. The facility is a pre-existing use, so it’s grandfathered. The concept is that when you have a nonconforming use, you can’t expand it. … The board was right in making that decision. It was an expansion of nonconforming use, and they had to re-apply using the right standards and proofs.”

The brief itself cites a case where it was ruled that “the proper scope of judicial review is not to suggest a decision that may have been better than the one made by the board … but to determine whether the board could have reasonably reached this decision.”

The final point of Union Beach’s brief refers to the May 12 condemnation of the JCP&L lot by BRSA, upon which the authority filed a motion to dismiss the borough’s appeal of the turbine.

The motion was denied Aug. 5.

“New Jersey law does not exempt BRSA from complying with land use laws following condemnation,” the brief states.

On Oct. 7, Lieberman said he could not find any “precedent or legal support for BRSA’s position that by merely condemning the property, they are no longer subject to municipal law concerning land use.”

Granata is scheduled to submit his brief on Oct. 24, and Lieberman his reply brief on Nov. 3. If the borough’s motion to accelerate is granted, oral arguments could be heard soon after.