Zoning Issues for Renewable Energy Technology

Zoning Issues for Renewable Energy Technology
From the May 2009 Riker Danzig <i>Energy UPDATE</i>

New Jersey municipalities vary in their approach to the zoning of renewable energy technology like solar panels and wind turbines. While some municipalities promote such technology, others, plagued by a "Not in my Backyard Mentality," heavily regulate or prohibit it completely. Today, zoning for renewable energy technology continues to be the subject of much debate, but recent proposed legislation promises to streamline the process and promote such technology throughout the state.

Zoning for Renewable Energy Technologies: In some municipalities, renewable energy technology is not included in local zoning ordinances and thus is considered a prohibited use. This means that a use variance is required to implement such technology. In addition to being costly and time-consuming, this subjects such technology to rigorous review on aesthetic, safety and siting considerations.

Other municipalities, however, categorize renewable energy technology as an accessory use or structure, meaning that it is considered incidental to any principal use or structure on the property. Accordingly, it is governed under the accessory use standard of the zoning ordinance, which typically regulates the size, location and proximity of the accessory structure to neighboring properties.

Additionally, renewable energy technology is also subject to bulk requirements for height, setback and lot size. With respect to wind turbines, for example, these requirements regulate the height of the turbine and size of the turbine blades in an effort to protect surrounding properties in the event the turbine falls. If renewable energy technology does not meet a municipality's bulk requirements, it may qualify for C-1 or C-2 variance relief under the Municipal Land Use Law (MLUL). Relief under C-1 may be granted where the strict application of the zoning ordinance would result in undue hardship to the property owner due to the unique characteristics of the subject property. Alternatively, relief under C-2 may be granted if a deviation from the zoning ordinance would advance one of the purposes of the MLUL.

Recent Enacted and Proposed Legislation: A package of bills recently signed into law or being considered by the New Jersey Legislature is intended to help streamline zoning for renewable energy technology and promote the use of such technology throughout the state. A description of these bills is also included in our complete Energy "Legislative Update" on page 8.

On March 31st, two bills were signed into law by Governor Corzine. The first, S1299/A2550, preempts local zoning ordinances and permits the siting of certain wind and solar energy facilities on lots of at least 20 contiguous acres in areas zoned for industrial use.

The next, S2265/A1558, requires new residential development of 25 dwelling units or more to offer a prospective owner the option of a solar energy system installation.

S1303/A3062 proposes to codify the definition of "inherently beneficial use" as "a developed property which is universally considered of value to the community because it serves a fundamental need, such as hospitals, schools, child care centers, group homes, or in the case of renewable energy, wind, solar or photovoltaic energy facilities." Put simply, this would make renewable energy technology an inherently beneficial use, which would make it easier to get a use variance for such technology and ensure that same could not be blocked by existing local zoning ordinances. This bill is still pending.

Conclusion: In light of the legislation recently enacted and the bills now being considered by the Legislature, zoning for renewable energy technology presents several interesting and emergent issues. Recognizing that environmental sustainability and renewable energy is of concern to our clients, the Energy Group at Riker Danzig is at the forefront of such issues and will help the firm to better serve the green needs of our clients.