Posted by: Patricia Salkin | May 24, 2014

NJ Appeals Court Finds That Municipality’s Ordinance On Small Wind Energy Systems Preempted By State Law

This appeal continues the on-going dispute related to the Bayshore Regional Sewerage Authority’s (BRSA) efforts to construct a wind turbine at its Borough of Union Beach (Union Beach) water treatment plant. Union Beach appeals from a June 23, 2010 Law Division judgment in this declaratory judgment action, restraining enforcement of Union Beach Ordinance 2009–150 (the ordinance), adopted on January 2, 2010, which is designed to regulate the construction of wind energy projects. The Law Division judge concluded enforcement of the ordinance against BRSA’s permitted project was preempted by N.J.S.A. 40:55D–66.12(c) of the Municipal Land Use Law (MLUL). Union Beach argues the judge erred in interpreting the statute as preempting BRSA’s project.

The court considered the five factors set forth by the Supreme Court to consider the applicability of preemption: 1) does the ordinance conflict with state law, either because of conflicting policies or operational effect; 2) was the state law intended, expressly or impliedly, to be exclusive in the field; 3) does the subject matter reflect a need for uniformity; 4) is the state scheme so pervasive or comprehensive that it precludes coexistence of municipal regulation; and 5) does the ordinance stand as an obstacle to the accomplishment and execution of the full purposes and objectives of the Legislature. (Overlook Terrace, supra, 71 N.J. at 461–62). The court found that the five prongs identified in Overlook’s analysis were applicable, and the ordinance’s operational effect conflicts with N.J.S.A. 40:55D–66.12(c) and stands in direct opposition to the statute’s provisions; the statute is designed to restrict municipal regulatory authority, especially for projects that already received permits from NJDEP and CAFRA. Accordingly, the court affirmed the district court’s holding denying Union Beach’s motion to vacate the restraints.

Bayshore Regional Sewage Authority v Borough of Union Beach, 2014 WL 2971460 (NJ Sup. Ct. 2/14/2014)


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