Posted by: Patricia Salkin | April 19, 2010

NJ Enacts Suite of Renewable Energy Laws

A number of new initiatives related to wind generation and siting in New Jersey recently took effect.  AB 3740 which took effect in January 2010 provides for the regulation of small wind energy systems by municipalities, and prohibits municipalities from unreasonably limiting the installation of such systems designed primarily for on-site consumption.   Unreasonable limits or hindrances to performance shall include the following:
•    Prohibiting small wind energy systems in all districts within the municipality
•    Restricting tower height or system height through application of a generic ordinance or regulation on height that does not specifically address allowable tower height or system height of a small wind energy system
•    Requiring a setback from property boundaries for a tower that is greater than 150 percent of the system height. In a municipality that does not adopt specific setback requirements for small wind energy systems, any small wind energy system shall be set back from the nearest property boundary a distance at least equal to 150 percent of the system height; provided, however, that this requirement may be modified by the zoning board of adjustment upon application in an individual case if the applicant establishes the conditions for a variance under this act
•    Setting a noise level limit lower than 55 decibels, as measured at the site property line, or not allowing for limit overages during short-term events such as utility outages and severe wind storms
•    Setting electrical or structural design criteria that exceed applicable State, federal or international building or electrical codes or laws.

Another new law, P.L. 2009, c. 239, (A.3218) creates the Solar and Wind Energy Commission. This is a temporary 11-member commission is to include one representative of the renewable energy industry, and representative of an electric public utility.  In addition, two lawyers are required to be appointed, one representing local government and one who is a land use lawyer. The purpose of the Commission is “to conduct a thorough and comprehensive study to examine State owned property and determine where solar and wind energy installations would be feasible[,]” which shall include a discussion of the financial implications of such installations (e.g., a discussion of property values, land use, community impact, planning and development and environmental factors), projected energy and financial savings, potential use of net metering and a host of other topics.  The Commission has one year to submit a final report to the Governor and the Legislature which is to include its findings, conclusions and recommendations.
Chapter 146 of the NJ laws  amends the Municipal Land Use Law, specifically by expanding the definition of Inherently Beneficial Use to include a wind, solar or photovoltaic energy facility or structure. The statute now provides, “Inherently beneficial use” means a use which is universally considered of value to the community because it fundamentally serves the public good and promotes the general welfare. Such a use includes, but is not limited to, a hospital, school, child care center, group home, or a wind, solar or photovoltaic energy facility or structure.” Chapter 244 of Laws of 2009 prohibits municipalities from adopting ordinances that “unreasonably” limit the installation or operation of small wind energy systems, directing the director of the Division of Code Enforcement in the Department of Community Affairs, in consultation with the Department of Environmental Protection, to promulgate a technical bulletin, including model municipal ordinances, regarding the construction of small wind energy systems.

Among other things, Chapter 213 of the Laws of 2009 amends the Right to Farm Act to specify that energy generated from solar, wind or biomass projects is a permissible activity. This law also requires that any person who owns preserved farmland may construct, install, and operate biomass, solar, or wind energy generation facilities, structures, and equipment on the farm, … “for the purpose of generating power or heat, and may make improvements to any agricultural, horticultural, residential, or other building or structure on the land for that purpose” will now qualify for the preferential tax treatment provided under the Farmland Assessment Act.

Papers discussing the regulation of renewable energy as it relates to land use issues are available here, here, here, here and here.


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