Opinion
DOCKET NO. A-2086-12T1
07-03-2014
BAYSHORE REGIONAL SEWERAGE AUTHORITY, a Body Politic and Corporate, Plaintiff-Respondent, v. THE BOROUGH OF UNION BEACH, Defendant-Appellant.
Stuart J. Lieberman argued the cause for appellant (Lieberman & Blecher, P.C., attorneys; Mr. Lieberman of counsel and on the brief; Michael G. Sinkevich, on the brief). Louis E. Granata argued the cause for respondent (Granata & Zaccardi, attorneys; Mr. Granata, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz, Maven and Hoffman.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2361-10.
Stuart J. Lieberman argued the cause for appellant (Lieberman & Blecher, P.C., attorneys; Mr. Lieberman of counsel and on the brief; Michael G. Sinkevich, on the brief).
Louis E. Granata argued the cause for respondent (Granata & Zaccardi, attorneys; Mr. Granata, of counsel and on the brief). PER CURIAM
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, N.J.S.A. 40:55D-1 to -163 (MLUL). Union Beach argues the judge erred in interpreting the statute as preempting BRSA's project. We disagree and affirm.
We recite the factual background as taken from a prior unpublished opinion in a related action (MON-L-32-11) involving the project:
BRSA is a regional sewerage authority created by the Townships of Hazlet and Holmdel and . . . Union Beach. . . . The treatment plant . . . is capable of treating 16,000,000 gallons of wastewater each day. BRSA uses electricity for fuel to operate onsite pumps and large pumping stations throughout the eight communities BRSA serves at a cost of $1,000,000 annually.
To reduce its electricity costs, BRSA decided to install a wind turbine. It applied for and obtained a permit from the New Jersey Department of Environmental Protection (NJDEP) to construct the wind turbine on its property, which is located in the Coastal Management Zone controlled by the Coastal Area Facility Review Act (CAFRA), N.J.S.A. 13:19-1 to -45. BRSA also applied for and received a low interest loan to fund the project from the New Jersey
Environmental Infrastructure Trust and a grant from the federal American Recovery and Reinvestment Act of 2009.
Throughout the permit process, BRSA kept the local community apprised of the project. In addition to the public notice and hearings required for the CAFRA permit, BRSA appeared before the Union Beach Planning Board (the Planning Board) and the municipal governing body to inform local officials of its plan to construct two wind turbines on its property. On November 13, 2009, the municipal governing body notified BRSA that a subcommittee had been appointed to meet with the Executive Director of BRSA [and] to negotiate a Community Benefit to "reasonably compensate [Union Beach] and the Community as host to the renewable energy project[.]" BRSA also obtained all building[] permits, including a zoning permit, from [Union Beach] to construct the wind turbine. On October 16, 2009, NJDEP authorized BRSA to advertise for bids for the project.
The CAFRA permit issued on October 1, 2009, and modified on October 28, 2009, authorized construction of a wind turbine. The permit provides that BRSA may erect a 1.5 megawatt, 262-foot high wind turbine (380 feet from the base to rotor tip) on a 1700 square foot pile cap foundation and all associated electrical infrastructure. The modified permit imposes certain conditions to protect migratory birds. These conditions include the prohibition of guide wires to anchor the turbine and a limitation on the lights installed on the tower to no more than the lights required by the Federal Aviation Administration. The permit is conditioned on compliance with certain conditions, including application for and receipt of federal or other state or local government approvals when such permits or approvals are necessary. No work may
commence until all other required permits or approvals are in place.
The permit also required BRSA to obtain written approval from Jersey Central Power and Light Company (JCP&L), the neighboring property owner, to allow the turbine blades to rotate over its property. On November 23, 2009, approximately one month following issuance of the permit by NJDEP, an ordinance restricting the height of wind turbines in [Union Beach] to 120 feet was introduced and eventually adopted on [January 2, 2010].
. . . .
BRSA applied for subdivision of a .502 acre semi-circular lot to accommodate the rotation of the turbine blades. In the course of the subdivision hearing before the Planning Board, Borough counsel contended BRSA required a variance because the BRSA and JCP&L properties were located in different zones. The Planning Board agreed, found BRSA required a use variance, and denied the subdivision application.
[Bayshore Reg'l Sewerage Auth. v. Planning Bd. of the Borough of Union Beach, No. A-3998-10 (App. Div. Aug. 10, 2012) (slip op. at 2-5).]
Approximately two weeks after Union Beach adopted the ordinance amending its land use and development ordinances to regulate construction of small wind energy systems in the municipality, the Legislature enacted N.J.S.A. 40:55D-66.12, which established limitations on municipal regulation of the installation and operation of small wind energy systems. BRSA filed this complaint for declaratory judgment, (Docket No. MON-L-2361-10), asserting the ordinance conflicted with the statute. BRSA maintained N.J.S.A. 40:55D-66.12(c) preempted the ordinance and sought an order enjoining the Borough from enforcing the ordinance against BRSA's construction of its wind turbine project. When Union Beach defaulted, judgment was entered making the temporary restraint on enforcement of the ordinance permanent. Union Beach moved to set aside the judgment, which was granted. However, the judge denied the additional request to vacate the restraint, pending conclusion of the litigation.
N.J.S.A. 40:55D-66.12(d) defines a "small wind energy system" as:
a wind energy conversion system consisting of a wind turbine, a tower, and associated control or conversion electronics, which has a rated capacity consistent with applicable provisions of the State Uniform Construction Code promulgated pursuant to the "State Uniform Construction Code Act," P.L. 1975, C. 217, ([N.J.S.A. 52:27D-119 to -141 (SUCCA)]) and technical bulletins issued pursuant to section 2 of N.J.S.A. 40:55D-66.13 [(technical bulletins)], and which will be used primarily for onsite consumption.
The two Law Division cases were consolidated. The restraint on enforcement of the ordinance remained in place. We also granted leave to appeal and Union Beach's motion to stay "[t]ransportation and erection of the wind turbine . . . pending disposition of the appeal" of an interlocutory order in the prerogative writ action (MON-L-32-11).
Following the release of our opinion in the prerogative writ action, Union Beach again moved to vacate the restraints on implementation of its ordinance regarding BRSA's project. BRSA filed a cross-motion for summary judgment, maintaining application of the ordinance to its project was preempted by state statute. BRSA did not contest the ordinance's validity, only its application to installation of BRSA's wind turbine. Following a hearing, the Law Division agreed, concluding N.J.S.A. 40:55D-66.12(c) preempted the ordinance. The judge denied Union Beach's motion to dissolve the restraints and granted BRSA's motion for summary judgment. These conclusions were memorialized in the November 28, 2012 order from which Union Beach appeals.
On appeal, Union Beach seeks reversal, arguing the judge erred in finding the ordinance was preempted. Prior to our analysis of the issues presented, we recite the pertinent provisions of the local ordinance and state statute involved. We also examine the principles governing preemption and statutory construction.
Union Beach's ordinance, ultimately codified in §§ 13-2.5 and 13-10.15 of Section XIII of the Union Beach "Land Use and Development Regulations," seeks to regulate the construction of certain wind energy systems located within the municipality. Relevant here, the ordinance provides: (1) no system shall exceed 120 feet in height; (2) the setback of any system from a property line must equal its total height and must be measured from the tips of its blades to the property line; (3) the minimum required lot areas for small systems is 20,000 feet; and (4) noise produced by a system shall not exceed fifty decibels, which "may be exceeded during short term events such as utility outages and/or severe storms." As applied the ordinance would prohibit construction of BRSA's proposed project because it exceeds the ordinance's height restriction and cannot meet the setback requirement because the turbine would abut its property line with the turbine blades extending and rotating over the adjoining JCP&L property.
The MLUL was amended to add N.J.S.A. 40:55D-66.12, which specifically established limits on municipal regulation of the installation and operation of small wind energy systems. Further, the Office on Clean Energy in the New Jersey Board of Public Utilities drafted model ordinance provisions, addressing small wind energy systems, in accordance with proposals from the statewide Wind Working Group for New Jersey, and the NJDEP proposed amendments to and new rules for Chapter 7 of the Administrative Code regulating coastal permit programs.
See New Jersey Clean Energy Protection http://www.state.nj.us/dep/opsc/docs/SmallWindModelOrdinance.pdf (November 19, 2007).
See 41 N.J.R. 3168(a) (September 8, 2004); see also http://www.state.nj.us/dep/rules/adoptions/adopt_100907a.pdf (September 8, 2009).
The statute reflects a clear legislative preference to thwart "unreasonable limits or hindrances" imposed by local efforts to impede development of small wind energy projects. N.J.S.A. 40:55D-66.12(a) provides:
Ordinances adopted by municipalities to regulate the installation and operation of small wind energy systems shall not unreasonably limit such installations or unreasonably hinder the performance of such installations. An application for development or appeal involving a small wind energy system shall comply with the appropriate notice and hearing provisions otherwise required for the application or appeal pursuant to the "[MLUL.]"Subsection (b) of the statute identifies proscribed "[u]nreasonable limits or hindrances to performance of . . . small wind energy system[s]" and includes provisions guiding a municipality as to acceptable regulatory provisions. Finally, subsection (c), which triggers the preemption controversy at hand, provides:
[i]f the Commissioner of Environmental Protection has issued a permit for the development of a small wind energy system
under [CAFRA], prior to the effective date [Jan. 16, 2010] of [this statute], provisions of subsection b. of this section shall not apply to an application for development for that small wind energy system if the provisions of that subsection would otherwise prohibit approval of the application or require the approval to impose restrictions or limitations on the small wind energy system, including but not limited to restrictions or limitations on tower height or system height, the setback of the system from property boundaries, and noise levels.
[N.J.S.A. 40:55D-66.12(c).]
"Unreasonable limits or hindrances" identified in N.J.S.A. 40:55D-66.12(b) include:
(1) Prohibiting small wind energy systems in all districts within the municipality;
(2) 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;
(3) 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 setback requirement may be reduced by the zoning board of adjustment or, if otherwise appropriate, by the planning board upon application in an individual case if the applicant establishes the conditions for a variance under the [MLUL] to the Board's satisfaction;
(4) Setting a noise 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; and
(5) Setting electric or structural design criteria that exceed applicable provisions of [SUCCA] and [technical bulletins].
[N.J.S.A. 40:55D-66.12(b).]
The conflict is whether the trial judge correctly discerned the import of subsection (c), when she found it preempts application of Union Beach's ordinance to BRSA's project, because it was already approved by NJDEP and CAFRA as evinced by permits issued prior to the ordinance's adoption. Union Beach argues the adoption of the statute cannot affect the valid preexisting local ordinance.
"Preemption is a judicially created principle based on the proposition that a municipality, which is an agent of the State, cannot act contrary to the State." Overlook Terrace Mgmt. Corp. v. Rent Control Bd. of W. New York, 71 N.J. 451, 461 (1976). An ordinance would be invalid "if it permits what a statute expressly forbids or forbids what a statute expressly authorizes." Summer v. Teaneck, 53 N.J. 548, 554 (1969).
Application of the doctrine "in any given circumstance 'turns upon the intention of the Legislature.'" C.I.C. Corp. v. Twp. of E. Brunswick, 266 N.J. Super. 1, 7 (App. Div. 1993) (quoting Mack Paramus Co. v. Borough of Paramus, 103 N.J. 564, 573 (1986)), aff'd, 135 N.J. 121 (1994). The Supreme Court has identified these factors to consider the applicability of preemption:
1. Does the ordinance conflict with state law, either because of conflicting policies or operational effect (that is, does the ordinance forbid what the Legislature has permitted or does the ordinance permit what the Legislature has forbidden)?
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?
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.]
In this matter, we consider this narrow question: whether N.J.S.A. 40:55D-66.12(c) preempts application of Union Beach's ordinance to BRSA's small wind energy system because the project had been previously approved by the NJDEP. The applicability of the doctrine of preemption is a legal issue, as is the interpretation of N.J.S.A. 40:55D-66.12(c). Resolution of these legal questions is subject to our plenary review. McGovern v. Rutgers, 211 N.J. 94, 108 (2012) (stating statutory interpretation is a legal issue); Hous. Auth. of City of Bayonne v. Mims, 396 N.J. Super. 195, 202 (App. Div. 2007) (stating preemption is a legal issue).
To interpret the legislative mandate, we consider the principles guiding statutory construction. Our "overriding objective in determining the meaning of a statute is to 'effectuate the legislative intent in light of the language used and the objects sought to be achieved.'" McCann v. Clerk of Jersey City, 167 N.J. 311, 320 (2001) (quoting State v. Hoffman, 149 N.J. 564, 578 (1997)). "To determine that intent, we look first to the plain language of the statute, seeking further guidance only to the extent that the Legislature's intent cannot be derived from the words that it has chosen." McGovern, supra, 211 N.J. at 108 (internal quotation marks and citations omitted). Certainly, the express statutory language "'is the surest indicator of the Legislature's intent.'" Lipkowitz v. Hamilton Surgery Ctr., LLC, 415 N.J. Super. 29, 35 (App. Div. 2010) (quoting Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 231 (1998)). We give the language its ordinary meaning, McGovern, supra, 211 N.J. at 108, and "enforce the statute in accordance with those terms.'" Lipkowitz, supra, 415 N.J. Super. at 35 (quoting N.J. Dep't of Law & Pub. Safety v. Bigham, 119 N.J. 646, 651 (1990)).
In adopting N.J.S.A. 40:55D-66.12, the Legislature desired to stave off parochial aversion to small wind energy systems using zoning ordinances to limit or preclude their construction or operation. N.J.S.A. 40:55D-66.12(a). By prohibiting attempts to unreasonably limit the installation or hinder the operation of small wind energy systems, the Legislature signaled its preference for the development of such projects. Subsection (b) imposes conditions on local limitations, listing acceptable and unacceptable standards. On close review of subsection (c), we note it applies only to projects approved by NJDEP that were subject to CAFRA, with approvals issued prior to the enactment of the statute. It is undisputed BRSA's project qualifies under this provision because the NJDEP granted permits for the project on October 1, 2009.
The second part of section (c) states as to these approved projects, the standards in subsection (b) do not apply if the restrictions, which otherwise would be permissible, restrict or limit the installation of a wind energy system previously subject to conditions set forth in NJDEP-CAFRA permits. N.J.S.A. 40:55D-66.12(c).
In arguing the ordinance is not preempted, Union Beach raises several points. First, it maintains N.J.S.A. 40:55D-66.12 is not retroactive so application of the ordinance, which predates the statute, remains unaffected. Second, Union Beach suggests subsection (c)'s reference to subsection (b), produces "the confusing result . . . [of] undercut[ting] the few limited restrictions that the Legislature sought to impose on municipalities when regulating small wind energy systems" and concludes the local ordinance regulations need only be reasonable.
We are not persuaded and reject the notion that subsection (c) was intended to obviate the limitations discussed in subsection (b). Rather, we conclude subsection (c) places specific projects beyond the scope of municipal regulation because they had been vetted and approved by NJDEP under CAFRA and were issued permits to proceed.
Construing the statute as a whole, see Fiore v. Consol. Freightways, 140 N.J. 452, 466 (1995) ("A statute should be read as a whole and not in separate sections."), subsections (a) and (b) provide an affirmative grant of limited municipal power to reasonably regulate the installation of small wind energy systems. See Assembly Hous. and Local Gov't Comm., Statement to A. 3740 (January 4, 2010) (providing the Legislature's view that N.J.S.A. 40:55D-66.12 delegated only the authority to reasonably regulate within the enumerated limits of the statute). The scope of this authority is delineated in subsection (b), which additionally includes acceptable limits in some instances. See, e.g., N.J.S.A. 40:55D-66.12(c)(2) and (4) (identifying acceptable limitations of height and noise level). We have no difficulty determining the Legislature expressed a desire for state control in this area, allowing limited municipal regulatory autonomy.
An added restriction is imposed by subsection (c). By its very language, subsection (c) applies to pre-existing projects, which in a sense, provides temporal application to previously approved projects. This inclusion of a condition precedent should not be confused as somehow suggestive of retroactivity. It merely designates the class of projects unaffected. To the extent the motion judge's remarks are construed as concluding subsection (c) contains an element of retroactivity, we conclude she misspoke. Nevertheless, her conclusions are not affected.
Our interpretation of the statute — that is, municipal regulations, even if within the range of reasonableness as identified in subsection (b), cannot be used to thwart construction of an already existing CAFRA-permitted small wind system — harmonizes the language and overall intent of N.J.S.A. 40:55D-66.12. Fiore, supra, 140 N.J. at 466. Further, the scant legislative history accompanying N.J.S.A. 40:55D-66.12(c) supports this view, stating: "The amended bill exempts from its provisions an applicant for the development of a small wind energy system from the restrictions set forth in the bill, such as those concerning height, setbacks and noise, if the applicant has already been issued a permit under [CAFRA]." Assembly Hous. and Local Gov't Comm., Statement to A. 3740 (January 4, 2010). This description of intent eliminates all doubt subsection (c) was designed to curb the exercise of municipal authority, which cannot be imposed on an already state permitted project.
If subsection (c) were read to remove the limitations on municipal regulation of small wind energy systems established in subsections (a) and (b), as Union Beach suggests, the result would be to lessen the restrictions on municipalities seeking to restrict the local use of turbines. Such a reading is inimical to the policy objective readily apparent by the statute's language. See H.K. v. Div. of Med. Assistance and Health Servs., 379 N.J. Super. 321, 328 (App. Div.) ("We will not construe a statute or regulation in a manner that produces an absurd result or that renders a part of it meaningless."), certif. denied, 185 N.J. 393 (2005).
Our interpretation also meshes with the overall purpose of the MLUL, designed to "guide the appropriate use or development of all lands in this State, in a manner which will promote the public health, safety, morals, and general welfare[,]" N.J.S.A. 40:55D-2(a), including the need to "promote utilization of renewable energy resources[,]" N.J.S.A. 40:55D-2(n).
We conclude the Legislature in adopting N.J.S.A. 40:55D-66.12(c) specifically preempted application of a municipal ordinance reasonably regulating wind energy systems, if the ordinance would prohibit installation of wind turbines because of violations of its height and setback requirements, when such systems were previously approved and granted permits by the NJDEP under CAFRA. BRSA's project meets the statutory requirements. Accordingly Union Beach's ordinance may not be applied to thwart the construction and operation of this project.
Our review has considered the five prongs identified in Overlook's analysis and found them applicable. 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; and the MLUL identifies the need for generally achieving uniformity in municipal regulation of land use and specifically defines permissible municipal regulation of installation of small wind energy systems. While the statutory scheme in this recently developing area is not deep, we determine it is found throughout provisions of the MLUL, comprehensively assuring implementation of the Legislature's policy to prevent unnecessary obstacles to the development of this renewable source of energy, such as those posed by a local attempt to regulate a project that had been approved.
Finally, Union Beach maintains the judge erred in granting summary judgment, arguing the court failed to consider its "assertion that N.J.S.A. 40:55D-66.12 constitutes impermissible special legislation." Union Beach suggests subsection (c) was directed only to BRSA's project based on the "unique situation" that includes the adopted municipal ordinance and the preexisting CAFRA permit. The assertion is unfounded.
The analysis of whether a given statute constitutes special litigation "focuses upon what an enactment excludes and the appropriateness of that exclusion, when considered in the context of the statute's legislative purpose." Horizon Blue Cross Blue Shield of N.J. v. State, 425 N.J. Super. 1, 17 (App. Div.), certif. denied, 211 N.J. 608 (2012); see also N.J. Const. art. IV., § 7, ¶ 7 ("No general law shall embrace any provision of a private, special or local character."). In order to determine whether legislation is general or special, the court must determine: "(1) the purpose and subject matter of the statute; (2) whether any persons are excluded who should be included; and (3) whether the classification is reasonable, given the purpose of the statute." Jordan v. Horsemen's Benevolent & Protective Assoc., 90 N.J. 422, 432-33 (1982). "A statute is not special legislation if the class established has characteristics sufficiently marked and important to make it a class by itself, it encompasses all of the subjects that reasonably belong within the classification, and it does not exclude any that naturally belong within that classification." Horizon Blue Cross Blue Shield of N.J., supra, 425 N.J. Super. at 17. That a single entity falls within the scope of a provision alone is insufficient to establish a given statute is special legislation. Id. at 17-18. Moreover, "[t]he Legislature has a broad range of discretion in determining classifications and distinctions, which will be presumed to rest upon a rational basis if there is any conceivable set of facts which can support them." N.J. Law Enforcement Supervisors Ass'n v. State, 414 N.J. Super. 111, 118-19 (App. Div. 2010).
The Borough argues that the matter should have proceeded into discovery, which it contends would shed light on the purposes underlying enactment of N.J.S.A. 40:55D-66.12(c). The arguments are unconvincing, as Union Beach has not identified how continued discovery would support what we conclude amounts to speculation. We have no basis to suggest subsection (c) was specifically targeted to aid BRSA's project. Rather, its apparent purpose is to recognize that projects that had travailed the State permitting process should not stumble and fall when encountering recently enacted local regulation. N.J.S.A. 40:55D-66.12(c) reasonably advances this purpose by shielding CAFRA-permitted small wind energy systems from municipal regulation ultimately designed to result in the project's disapproval.
We conclude the remaining arguments advanced by Union Beach lack sufficient merit to warrant further discussion in our opinion. R. 2:11-3(e)(1)(E). The denial of Union Beach's motion to vacate the restraints and the summary judgment will not be disturbed.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION