Last month, the Governor finally signed legislation that decrees that wind turbines and solar panels are inherently beneficial under New Jersey’s land use laws. This is a step forward for wind energy in New Jersey.
Up to now, in most cases if a person or business wanted to install a wind turbine in New Jersey they would have to seek a variance. A variance is usually necessary because the wind turbine does not meet the height restrictions in most towns. Some towns also consider the wind turbine as non-permitted structure. In either event in many instances an applicant for a wind turbine must file for a D variance. D variances are the toughest type to get.
In order to obtain a D variance an applicant must get the approval of 5 of the 7 board members i.e. more than a majority. Also the applicant must prove that the wind turbine is has benefits to society that outweigh the negatives. It also must meet other positive requirements. One would think that proving wind turbines have a positive effect to society and that positive effect outweighs any negative effect. The one thing that can be sure is that when a hearing for a wind turbine is scheduled anybody and everybody will be there to protest with complaints that are in large part invalid (in my humble opinion).
This is where P.L. 2009 C. 146 comes in. This new law defines inherently beneficial under our land use laws. Before this bill what was inherently beneficial was left up to the individual land use boards and ultimately to the courts to decide on a case by case basis. This law defines inherently beneficial as, ‘a use which is universally considered of value to the community because it fundamentally serves the public good and promotes the general welfare. Such uses includes, but is not limited to, a hospital, school, child care center, group home, or a wind, solar or photovoltaic energy facility or structure.” The law in essence removes one small hurdle to the installation of wind energy to NJ. Once a project is considered inherently beneficial it now longer has to prove that the benefits to the public outweigh the negatives. It is assume that the benefits outweigh the negatives.
There was opposition to this bill before it was passed and the League of Municipalities issued a statement on the law arguing that this is taking the power from the municipalities and the courts. In particular the League noted that by including wind and solar energy as inherently beneficial that further legal challenges will be forthcoming.
I agree with the League on this issue, merely declaring wind and solar energy as inherently beneficial does not mean that litigation over the systems will end. I am aware of at least two lawsuits in NJ involving the installation of a wind turbine. I suspect as the green economy grows and the need for clean reliable renewable energy grows more and more businesses and individuals will like to install wind turbines. Those applications will continue to be denied by land use boards for real reasons as well as NIMBY reasons. This will lead to a multitude of lawsuits whose costs will far outstrip the energy benefits to the owner.
While P.L. 2009 C. 146 is a good start, what NJ needs is a laws that prevents townships from prohibiting (either directly or indirectly) the installation of wind turbines in their borders. California has a similar law:
any ordinances regulating small wind energy systems adopted by local agencies have the effect of providing for the installation and use of small wind energy systems and that provisions in these ordinances relating to matters including, but not limited to, parcel size, tower height, noise, notice, and setback requirements do not unreasonably restrict the ability of homeowners, farms, and small businesses to install small wind systems in zones in which they are authorized by local ordinance. It is the policy of the state to promote and encourage the use of small wind energy systems and to limit obstacles to their use.” The statute goes further to provide that, “[t]he implementation of consistent standards to achieve the timely and cost-effective installation of small wind energy systems is not a municipal affair . . . but is instead a matter of statewide concern.” Ca. Gov’t Code §65892.13(a)(5).
If New Jersey is going to meet its terrestrial goals of 200 megawatts of energy from terrestrial wind turbines in the state by 2020 it needs to do more than talk about supporting wind and P.L. 2009 c. 146. We need to do more.