Bayshore Regional Sewerage Authority v. Borough of Union Beach

Bayshore Regional Sewerage Authority (BRSA) (plaintiff) was a regional sewerage authority with a large water-treatment plant in the Borough of Union Beach, New Jersey (Union Beach) (defendant). BRSA paid $1 million annually for electricity to run the plant and wanted to install a wind turbine at the plant to reduce electricity costs. In October 2009, BRSA obtained a permit for the turbine construction from the New Jersey Department of Environmental Protection pursuant to New Jersey’s Coastal Area Facility Review Act (CAFRA). The CAFRA permit authorized construction of a 262-foot-high wind turbine on a 1,700-square-foot foundation. BRSA obtained funding for the project and obtained necessary building and zoning permits from Union Beach. However, in January 2010, Union Beach adopted an ordinance purporting to regulate the construction of wind-energy projects. The ordinance provided that a wind-energy system could not be more than 120 feet tall and had to be set back from the property line at a distance equal to the total height of the system measured from the tips of the windmill blades to the property line. The ordinance would have prohibited construction of BRSA’s turbine because the turbine exceeded the height limit and could not comply with the setback requirement. Two weeks after Union Beach adopted its ordinance, the New Jersey legislature enacted N.J.S.A. 40:55D-66.12, which amended New Jersey’s Municipal Land Use Law (MLUL) to prohibit municipalities from adopting ordinances that unreasonably limited or hindered the development of small wind-energy systems. Subsection (b) of the amendment identified acceptable regulatory standards that municipalities could impose on wind-energy systems. However, subsection (c) of the amendment stated that any acceptable conditions identified in subsection (b), including conditions on height, setback, and noise levels, could not be applied to prohibit approval of small wind-energy projects that had already been issued CAFRA permits prior to the statute’s effective date. BRSA brought a declaratory-judgment action against Union Beach in New Jersey state court, asserting that the amended MLUL preempted the application of Union Beach’s ordinance to BRSA’s turbine project because BRSA had already received a CAFRA permit. The trial court agreed and restrained enforcement of Union Beach’s ordinance. Union Beach appealed.