New Jersey has enacted three separate laws addressing local permitting practices for solar and wind energy facilities. The first deals with solar and wind facilities located in industrial-zoned districts; the second with wind energy devices sited on piers; and the third addresses permitting standards small wind energy devices in general. All three are described below.
Solar and Wind as Permitted Uses in Industrial Zones
In March 2009 the state enacted legislation (A.B. 2550) defining facilities engaged in electricity production using solar energy technologies, photovoltaics, and wind energy systems as permitted uses in industrial-zoned parcel(s) of 20 contiguous acres or more. In order for the wind or solar facility to qualify as a permitted use, the parcel(s) must be owned by the same person or entity. This law applies universally in all municipalities in the state.
Wind as a Permitted Use on Piers
In February 2011 the state enacted legislation (S.B. 212) stating that wind dependent energy devices located on a pier within 500 feet of the mean high water line of tidal waters may not be prohibited. Facilities must meet other applicable laws and regulations and be an accessory use to other uses or purposes of the pier. The New Jersey Department of Environmental Protection has adopted amendments to the administrative rules governing energy facilities in coastal zones to effectuate this law. The current rules, which have been adopted and re-adopted as special amendments, are set to expire May 29, 2020.
Standards for Municipal Small Wind Regulations
Separately, in January 2010, New Jersey enacted legislation designed to prevent municipalities from adopting regulations that place unreasonable limits or hinder the performance of small wind energy systems. Small wind energy devices must be used primarily to produce energy for on-site consumption* and are defined to include the wind turbine, tower, and associated control devices. The law identifies a series of possible restrictions that would be considered unreasonable, as follows:
- Outright prohibition of small wind energy systems in all districts of a municipality
- Generic height restrictions that do not specifically address the allowable tower height or system height (tower plus the affixed wind generator) of small wind energy systems
- Property boundary setback requirements greater than 150% of the system height. Smaller setback requirements are permitted by the adoption of a regulation or through a zoning variance, but the standard setback is set at 150% of the system height if a municipality declines to adopt a specific setback requirement.
- Setting maximum noise limits lower than 55 decibels at the property line or not allowing the limit to be exceeded during short-term events such as power outages or wind storms.
- Setting structural or design standards that exceed the State Uniform Construction or technical bulletin(s) to be developed by the Division of Codes and Standards within the New Jersey Department of Community Affairs.
The law requires that wind energy systems comply with all Federal Aviation Administration (FAA) regulations and applicable airport zoning regulations. It also includes rules and processes for the removal of out of service or abandoned wind turbines, to be accomplished at the owner's expense.
As noted above, the Division of Codes and Standards, in consultation with the DEP, is tasked with developing a technical bulletin within 10 months that includes model municipal ordinances for small wind energy systems. The development of the bulletin must include public hearings and comments from interested parties and the final document must be posted on the Department of Community Affairs web site. Notwithstanding this requirement, as of this writing it does not appear that a technical bulletin has been completed.
*While the state law does not include any specific size limitations on individual systems, it does allow for the possibility of system size restrictions as part of State Uniform Construction Code or the technical bulletin to be developed by the Division of Codes and Standards.