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January 26, 2011

Union Beach lacks power to rule on turbine, complaint says

By JIM McCONVILLE
APP.COM STAFF WRITER
The two-year battle over the construction of a 380-foot-high wind turbine has taken another twist, with the Bayshore Regional Sewerage Authority saying the borough lacks the power to rule on approving the project.

The authority's attorney, Louis E. Granata of Matawan-based Granata, Wernick & Zaccardi, filed a complaint in state Superior Court, Freehold, on Dec. 29. The authority  which wants to build an energy-producing turbine – serves Hazlet, Union Beach, Matawan, Aberdeen, Keyport, Keansburg, Holmdel and Marlboro.

The authority's civil complaint asks the court to restrain the Planning Board from taking further action that would "delay or interfere with the construction and operation" of the wind turbine.

The authority argues that the board has no jurisdiction over the estimated $7.7 million project, which has been approved by the state Department of Environmental Protection. The DEP issued a construction permit for the project under the state Coastal Area Facility Review Act in June.

That approval, the authority argues, supersedes local government rule.

However, Stuart J. Lieberman, a Princeton-based attorney who concentrates in environmental law and is representing Union Beach, said the authority's claim that it is no longer beholden to municipal rule is frivolous.

"I am not aware of any regulatory provision that says, if you get a permit or authorization or blessing from the DEP, that you are then exempt from other governmental approval," Lieberman said.

Lieberman said that while the DEP may have absolute authority in a state wetlands issue, it doesn't apply to a local land use case.

"It's a land use issue where they're (the authority) erecting a structure and they happen to need both DEP and local approval," Lieberman said. "And they now claim because they got the state approval, they now do not need local approval. That's new to me."

The authority's court complaint comes on the heels of the Planning Board's Dec. 8 rejection of the authority's application to redraw its property lines to include a roughly half-acre tract purchased from Jersey Central Power & Light Co., land that the agency acquired for the wind turbine.

The board also ruled that the authority must reapply for a use variance in order for the board to consider whether the agency may add the plot to its property earmarked for the turbine.

The authority purchased the tract from JCP&L in October to ensure that the three rotating blades of the proposed 1.5-megawatt wind turbine will rotate over authority property, agency officials said.

The authority wants to use the half-acre, semi-circular lot to provide more room for the planned turbine's 118-foot-long blades, as well as to ensure clearance for a 219.5-acre tract known as Conaskonk Point, a property that consists of environmentally sensitive lands, according to the site plan application prepared by T&M Associates of Middletown.