ASSEMBLY COMMITTEE SUBSTITUTE FOR

ASSEMBLY, No. 3992

STATE OF NEW JERSEY

214th LEGISLATURE

  ADOPTED NOVEMBER 21, 2011

 


 

Sponsored by:

Assemblyman  UPENDRA J. CHIVUKULA

District 17 (Middlesex and Somerset)

 

Co-Sponsored by:

Assemblymen Mainor, Prieto, Senators B.Smith and Kyrillos

 

 

 

 

SYNOPSIS

     Provides for streamlined review of certain wind energy generation facility installments on farmland.

 

CURRENT VERSION OF TEXT

     Substitute as adopted by the Assembly Housing and Local Government Committee.

  

 

 

 


An Act concerning wind energy generation facilities on farms, supplementing P.L.1983, c.32 (C.4:1C-11 et seq.) and P.L.1975, c.291 (C.40:55D-1 et seq.), and amending P.L.2009, c.213.

 

     Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

     1.  (New section)  The Legislature finds and declares that wind energy is a renewable resource that generates no air or water pollutants or greenhouse gases and consumes no water; and that wind energy is important to the State's energy and environmental goals.

     The Legislature further finds and declares that wind energy will contribute to the preservation of the agriculture industry in the State by providing a reliable income stream to farmers without disrupting the use of the land for agricultural purposes.

     The Legislature therefore determines that it is in the best interests of the citizens of the State to encourage the construction of renewable energy facilities in certain areas of the State and to provide assistance to farmers by providing a streamlined procedure for the responsible siting of wind energy facilities on farms.

 

     2.    (New section) a. Notwithstanding any law, rule or regulation adopted pursuant thereto, or county or municipal ordinance or regulation, to the contrary and subject to the requirements enumerated in subsection b. of this section, a person who owns a preserved farm as defined in section 1 of P.L.2009, c.213 (C.4:1C-32.4), comprising 75 contiguous acres or more, located in a county of the third class that is not contiguous to a county with a population density in excess of 1,000 persons per square mile according to the latest federal decennial census, may construct, install, and operate wind energy generation facilities, structures, and equipment on the farm, whether on the preserved portion of the farm or on any portion excluded from preservation, without limitation and without review, approval or application therefor from or to any State, county or municipal regulatory body, except as may apply pursuant to section 3 of P.L.    , c.     (C.        ) (pending before the Legislature as this bill).

     b.    To be exempt from limitation, review, approval, or application pursuant to subsection a. of this section, wind energy generation facilities, structures, and equipment shall meet the following requirements:

     (1) no more than one turbine shall be installed on a 75-contiguous-acre area of land;

     (2)  no wind turbine, turbine facility, or structure shall be placed within 750 feet of an occupied residential building or the property boundary line of an adjoining property;

     (3) the wind generation facilities, structures, or equipment shall be installed to provide energy or revenue by lease or contract directly to the landowner and shall be installed pursuant to contracts, leases or other agreements that permit or require continued use of the property for agricultural or horticultural production;

     (4) noise from the wind energy generation facilities, structures, and equipment shall not exceed 65 decibels between 7:00 a.m. and 10:00 p.m. and 42 decibels between 10:00 p.m. and 7:00 a.m. at the property boundary line;

     (5) the wind energy generation facilities, structures, and equipment shall satisfy electrical and structural design criteria of applicable provisions of the State Uniform Construction Code promulgated pursuant to the “State Uniform Construction Code Act,” P.L.1975, c.217 (C.52:27D-119 et seq.);

     (6) the wind energy generation facilities, structures, and equipment shall satisfy electrical interconnection standards established by the Board of Public Utilities;

     (7)  the height of the wind energy generation facilities, structures, and equipment shall not exceed 500 feet;

     (8)  the wind energy generation facilities, structures, and equipment are not operated during times that would result in flicker at any occupied residential dwelling; and

     (9) the wind energy generation facilities, structures, and equipment have been issued any required permits pursuant to the “Freshwater Wetlands Protection Act,” P.L.1987, c.156 (C.13:9B-1 et seq.), and the “Flood Hazard Control Act,” P.L.1962, c.19 (C.58:16A-50 et seq.).

     c.  This section shall not apply to any preserved farm as defined in section 1 of P.L.2009, c.213 (C.4:1C-32.4) that is located in the coastal area designated pursuant to section 4 of P.L.1973, c.185  (C.13:19-4), the pinelands area designated pursuant to section 10 of P.L.1979, c.111 (C.13:18A-11), or the Highlands Region as defined in section 3 of P.L.2004, c.120 (C.13:20-3).

    

     3.    (New section) a.  Notwithstanding any other law, or rule or regulation adopted pursuant thereto, to the contrary, wind energy generation facilities, structures, and equipment to be constructed, installed and operated on a farm management unit as defined pursuant to section 3 of P.L.1983, c.31 (C.4:1C-3), or property actually used for agricultural or horticultural purposes as described pursuant to subsection a. of section 6 of P.L.1983, c.31 (C.4:1C-9), that is not a preserved farm or a portion of a preserved farm and comprises 75 acres or more, located in a county of the third class that is not contiguous to a county with a population density in excess of 1,000 persons per square mile according to the latest federal decennial census, shall be exempt from any limitation or review, and approval or application therefor, from or to any State, county or municipal regulatory body, except as may apply pursuant to subsection b. of this section, provided that:

     (1) no more than one turbine shall be installed on a 75-contiguous-acre area of land;

     (2)  no wind turbine, turbine facility, or structure shall be placed within 750 feet of an occupied residential building or the property boundary line of an adjoining property;

     (3) the wind generation facilities, structures, or equipment shall be installed to provide energy or revenue by lease or contract directly to the landowner and shall be installed pursuant to contracts, leases or other agreements that permit or require continued use of the property for agricultural or horticultural production;

     (4) noise from the wind energy generation facilities, structures, and equipment shall not exceed noise from the wind energy generation facilities, structures, and equipment shall not exceed 65 decibels between 7:00 a.m. and 10:00 p.m. and 42 decibels between 10:00 p.m. and 7:00 a.m. at the property boundary line;

     (5) the wind energy generation facilities, structures, and equipment shall satisfy electrical and structural design criteria of applicable provisions of the State Uniform Construction Code promulgated pursuant to the “State Uniform Construction Code Act,” P.L.1975, c.217 (C.52:27D-119 et seq.);

     (6) the wind energy generation facilities, structures, and equipment shall satisfy electrical interconnection standards established by the Board of Public Utilities;

     (7) the height of the wind energy generation facilities, structures, and equipment shall not exceed 500 feet; and

     (8) the wind energy generation facilities, structures, and equipment are not operated during times that would result in flicker at any occupied residential dwelling.

     (9) the wind energy generation facilities, structures, and equipment have been issued any required permits pursuant to the “Freshwater Wetlands Protection Act,” P.L.1987, c.156 (C.13:9B-1 et seq.), and the “Flood Hazard Control Act,” P.L.1962, c.19 (C.58:16A-50 et seq.).

     b.    Wind energy generation facilities, structures, and equipment that satisfy the provisions of subsection a. of this section or section 2 of P.L.   , c.     (C.     ) (pending before the Legislature as this bill) shall be a permitted use, and an application for development therefor shall be deemed an application for site plan approval.  The scope of review applicable to an application pursuant to this subsection shall be limited to a determination that the criteria enumerated in paragraphs (1) through (9) of subsection a. of this section have been met.

     c.  This section shall not apply to any farm management unit as defined pursuant to section 3 of P.L.1983, c.31 (C.4:1C-3), or property actually used for agricultural or horticultural purposes as described pursuant to subsection a. of section 6 of P.L.1983, c.31 (C.4:1C-9), that is located in the coastal area designated pursuant to section 4 of P.L.1973, c.185 (C.13:19-4), the pinelands area designated pursuant to section 10 of P.L.1979, c.111 (C.13:18A-11), or the Highlands Region as defined in section 3 of P.L.2004, c.120 (C.13:20-3).

 

     4.  Section 1 of P.L.2009, c.213 (C.4:1C-32.4) is amended to read as follows:

     1. a. Notwithstanding any law, rule or regulation to the contrary, except as otherwise provided pursuant to section 2 of P.L.   , c.    (C.    ) (pending before the Legislature as this bill), a person who owns preserved farmland may construct, install, and operate biomass, solar, or wind energy generation facilities, structures, and equipment on the farm, whether on the preserved portion of the farm or on any portion excluded from preservation, for the purpose of generating power or heat, and may make improvements to any agricultural, horticultural, residential, or other building or structure on the land for that purpose, provided that the biomass, solar, or wind energy generation facilities, structures, and equipment:

     (1)   do not interfere significantly with the use of the land for agricultural or horticultural production, as determined by the committee;

     (2)   are owned by the landowner, or will be owned by the landowner upon the conclusion of the term of an agreement with the installer of the biomass, solar, or wind energy generation facilities, structures, or equipment by which the landowner uses the income or credits realized from the biomass, solar, or wind energy generation to purchase the facilities, structures, or equipment;

     (3)   are used to provide power or heat to the farm, either directly or indirectly, or to reduce, through net metering or similar programs and systems, energy costs on the farm; and

     (4) are limited (a) in annual energy generation capacity to the previous calendar year's energy demand plus 10 percent, in addition to what is allowed under subsection b. of this section, or alternatively at the option of the landowner (b) to occupying no more than one percent of the area of the entire farm including both the preserved portion and any portion excluded from preservation.

     The person who owns the farm and the energy generation facilities, structures, and equipment may only sell energy through net metering or as otherwise permitted under an agreement allowed pursuant to paragraph (2) of this subsection.

     b.    The limit on the annual energy generation capacity established pursuant to subparagraph (a) of paragraph (4) of subsection a. of this section shall not include energy generated from facilities, structures, or equipment existing on the roofs of buildings or other structures on the farm as of the date of enactment of P.L.2009, c.213 (C.4:1C-32.4 et al.).

     c.     [A] Except as otherwise provided in section 2 of P.L.   , c.  (C.   ) (pending in the Legislature as this bill), a landowner shall seek and obtain the approval of the committee before constructing, installing, and operating biomass, solar, or wind energy generation facilities, structures, and equipment on the farm as allowed pursuant to subsection a. of this section.  The committee shall provide the holder of any development easement on the farm with a copy of the application submitted for the purposes of subsection a. of this section, and the holder of the development easement shall have 30 days within which to provide comments to the committee on the application.  The committee shall, within 90 days of receipt, approve, disapprove, or approve with conditions an application submitted for the purposes of subsection a. of this section.  The decision of the committee on the application shall be based solely upon the criteria listed in subsection a. of this section and comments received from the holder of the development easement.

     d.    No fee shall be charged of the landowner for review of an application submitted to, or issuance of a decision by, the committee pursuant to this section.

     e.     The committee may suspend or revoke an approval issued pursuant to this section for a violation of any term or condition of the approval or any provision of this section.

     f.     The committee, in consultation with the Department of Environmental Protection and the Department of Agriculture, shall adopt, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), rules and regulations necessary for the implementation of this section, including provisions prescribing standards concerning impervious cover which may be permitted in connection with biomass, solar, or wind energy generation facilities, structures, and equipment authorized to be constructed, installed, and operated on lands pursuant to this section.  The rules and regulations adopted pursuant to this subsection shall not apply to wind energy generation facilities, structures, and equipment exempt from limitation or review, and approval or application therefor, pursuant to section 2 of P.L.   , c.    (C.    ) (pending before the Legislature as this bill).

     g.     In the case of biomass energy generation facilities, structures, or equipment, the landowner shall also seek and obtain the approval of the Department of Agriculture as required pursuant to section 5 of P.L.2009, c.213 (C.4:1C-32.5) if the land is valued, assessed and taxed pursuant to the "Farmland Assessment Act of 1964," P.L.1964, c.48 (C.54:4-23.1 et seq.).

     h.     Notwithstanding any provision of this section to the contrary, the construction, installation, or operation of any biomass, solar, or wind energy generation facility, structure, or equipment in the pinelands area, as defined and regulated by the "Pinelands Protection Act," P.L.1979, c.111 (C.13:18A-1 et seq.), shall comply with the standards of P.L.1979, c.111 and the comprehensive management plan for the pinelands area adopted pursuant to P.L.1979, c.111.

     i.      For the purposes of this section:

     "Biomass" means an agricultural crop, crop residue, or agricultural byproduct that is cultivated, harvested, or produced on the farm and which can be used to generate energy in a sustainable manner.

     "Net metering" means the same as that term is used for purposes of subsection e. of section 38 of P.L.1999, c.23 (C.48:3-87).

     "Preserved farmland" means land on which a development easement was conveyed to, or retained by, the committee, a board, or a qualifying tax exempt nonprofit organization pursuant to the provisions of section 24 of P.L.1983, c.32 (C.4:1C-31), section 5 of P.L.1988, c.4 (C.4:1C-31.1), section 1 of P.L.1989, c.28 (C.4:1C-38), section 1 of P.L.1999, c.180 (C.4:1C-43.1), sections 37 through 40 of P.L.1999, c.152 (C.13:8C-37 through C.13:8C-40), or any other State law enacted for farmland preservation purposes.

(cf:  P.L.2009, c.213, s.1)

 

     5.    Section 6 of P.L.2009, c.213 (C.4:1C-32.6) is amended to read as follows:

     6.    Every two years, the Department of Agriculture, in consultation with the State Agriculture Development Committee and the Department of the Treasury, shall prepare a report on the implementation of P.L.2009, c.213 (C.4:1C-32.4 et al.) and P.L.    , c.    (C.      ) (pending before the Legislature as this bill).  The report shall include:  a survey and inventory of all biomass, solar, or wind energy generation facilities, structures, and equipment placed on farmland in accordance with P.L.2009, c.213 (C.4:1C-32.4 et al.) and P.L.    , c.    (C.      ) (pending before the Legislature as this bill); the extent to which existing structures, such as barns, sheds, and silos, are used for those purposes, and how those structures have been modified therefor; the extent to which new structures, instead of existing structures, have been erected; and such other information as either of the departments or the committee deems useful.

     The report prepared pursuant to this section shall be transmitted to the Governor, the Legislature pursuant to section 2 of P.L.1991, c.164 (C.52:14-19.1), and the respective chairpersons of the Senate Economic Growth Committee, the Senate Environment and Energy Committee, the Assembly Agriculture and Natural Resources Committee, and the Assembly Environment and Solid Waste Committee or their designated successors.  Copies of the report shall also be made available to the public upon request and free of charge, and shall be posted on the website of the Department of Agriculture.

(cf: P.L.2009, c.213, s.6)

 

     6.  This act shall take effect immediately.