## Facts

- Bayshore Regional Sewerage Authority (BRSA) operated a wastewater treatment plant in Union Beach and incurred substantial annual electricity costs.
- BRSA planned to install a wind turbine on its property to reduce electricity usage and expenses.
- In October 2009, BRSA obtained a Coastal Area Facility Review Act (CAFRA) permit from the New Jersey Department of Environmental Protection authorizing construction of a 262-foot wind turbine and foundation.
- BRSA secured project funding and obtained local building and zoning permits from the Borough of Union Beach.
- In January 2010, Union Beach adopted Ordinance 2009-150 regulating wind energy projects, including a 120-foot height limit and setbacks equal to the turbine’s total height.
- As applied to BRSA’s already-permitted turbine, the ordinance would have prevented construction.
- Shortly after the ordinance, the Legislature enacted N.J.S.A. 40:55D-66.12, amending the Municipal Land Use Law to address municipal regulation of small wind energy systems and to protect certain projects already holding CAFRA permits.
- BRSA filed a declaratory-judgment action seeking to bar enforcement of the ordinance against its project; the Law Division restrained enforcement, and Union Beach appealed.

## Issues

1. Whether N.J.S.A. 40:55D-66.12(c) preempted Union Beach’s wind-energy ordinance as applied to BRSA’s wind turbine that had received a CAFRA permit before the statute’s effective date.
2. Whether the Borough could enforce height and setback restrictions that would, in practice, prohibit construction of a CAFRA-permitted small wind energy project.

## Decision

- The Appellate Division affirmed the Law Division’s judgment restraining Union Beach from enforcing Ordinance 2009-150 against BRSA’s project.
- The court held that N.J.S.A. 40:55D-66.12(c) preempted municipal enforcement of the ordinance to the extent it would prohibit approval and construction of BRSA’s CAFRA-permitted wind turbine.
- The court concluded BRSA fell within the statute’s protected category because it obtained its CAFRA permit before the statute’s effective date and the ordinance would operate to block the project.

## Legal Principles

- Under New Jersey preemption doctrine, a municipal ordinance is unenforceable to the extent it conflicts with a legislative enactment that limits municipal authority in a defined regulatory area.
- N.J.S.A. 40:55D-66.12(b) permits municipalities to impose certain conditions on small wind energy systems (including height and setbacks).
- N.J.S.A. 40:55D-66.12(c) limits those municipal conditions by providing they may not be applied in a manner that prohibits approval of a small wind energy project that already held a CAFRA permit as of the statute’s effective date.
- Where a municipal wind-energy ordinance would functionally bar a project within N.J.S.A. 40:55D-66.12(c), the ordinance is preempted as applied to that project.

## Conclusion

The Appellate Division held that the MLUL amendment in N.J.S.A. 40:55D-66.12(c) barred Union Beach from enforcing its post-permit wind-energy ordinance to stop BRSA’s CAFRA-permitted wind turbine, and it affirmed the injunction against municipal enforcement as applied to that project.


Bayshore Reg’l Sewerage Auth. v. Borough of Union Beach, 2014 WL 2971460 (N.J. Super. Ct. App. Div. 2014)