New Jersey-2010-A3992-Amended

An Act concerning wind energy generation facilities, structures, and equipment 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.1983, c.31 and P.L.2009, c.213.

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

1. (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 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), comprising 33 contiguous acres or more, may construct, install and operate wind energy generation facilities, structures, and equipment on the farm management unit or property, 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 any State, county or municipal regulatory body, except as may apply pursuant to section 2 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 33-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 standards of fifty-five decibels 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.); and

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

2. (New section) a. ¹Notwithstanding 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 33 acres or more, shall be exempt from any limitation or review, and approval or application therefor, from 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 33-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;

(4) noise from the wind energy generation facilities, structures, and equipment shall not exceed standards of fifty-five decibels at the property boundary line;

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

b.¹ Wind energy generation facilities, structures, and equipment that satisfy the provisions of ¹subsection a. of this section or¹ section 1 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 a minor site plan for which the requirements of notice and public hearing shall be waived. ¹[b.]¹ The scope of review applicable to an application or minor site plan pursuant to subsection a. of this section shall be limited to a determination that ¹[:

(1) the wind energy generation facilities, structures, and equipment shall not exceed one turbine 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 energy generation facilities, structures, and or equipment shall be installed pursuant to a contract, lease or other agreement that permits or requires continued use of the property for agricultural or horticultural production;

(4) noise from the wind energy generation facilities, structures, and equipment shall not exceed standards of fifty-five decibels at the property boundary line;

(6) the wind energy generation facilities, structures, and equipment shall satisfy electrical interconnection standards established by the Board of Public Utilities] the criteria enumerated in paragraphs (1) through (6) of subsection a. of this section have been met.¹

3. Section 6 of P.L.1983, c.31 (C.4:1C-9) is amended to read as follows:

6. Notwithstanding the provisions of any municipal or county ordinance, resolution, or regulation to the contrary, the owner or operator of a commercial farm, located in an area in which, as of December 31, 1997 or thereafter, agriculture is a permitted use under the municipal zoning ordinance and is consistent with the municipal master plan, or which commercial farm is in operation as of the effective date of P.L.1998, c.48 (C.4:1C-10.1 et al.), and the operation of which conforms to agricultural management practices recommended by the committee and adopted pursuant to the provisions of the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), or whose specific operation or practice has been determined by the appropriate county board, or in a county where no county board exists, the committee, to constitute a generally accepted agricultural operation or practice, and all relevant federal or State statutes or rules and regulations adopted pursuant thereto, and which does not pose a direct threat to public health and safety may:

a. Produce agricultural and horticultural crops, trees and forest products, livestock, and poultry and other commodities as described in the Standard Industrial Classification for agriculture, forestry, fishing and trapping or, after the operative date of the regulations adopted pursuant to section 5 of P.L.2003, c.157 (C.4:1C-9.1), included under the corresponding classification under the North American Industry Classification System;

b. Process and package the agricultural output of the commercial farm;

c. Provide for the operation of a farm market, including the construction of building and parking areas in conformance with municipal standards;

d. Replenish soil nutrients and improve soil tilth;

e. Control pests, predators and diseases of plants and animals;

f. Clear woodlands using open burning and other techniques, install and maintain vegetative and terrain alterations and other physical facilities for water and soil conservation and surface water control in wetland areas;

g. Conduct on-site disposal of organic agricultural wastes;

h. Conduct agriculture-related educational and farm-based recreational activities provided that the activities are related to marketing the agricultural or horticultural output of the commercial farm;

i. Engage in the generation of power or heat from biomass, solar, or wind energy, provided that the energy generation is consistent with the provisions 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), as applicable, and the rules and regulations adopted therefor and pursuant to section 3 of P.L.2009, c.213 (C.4:1C-9.2); and

j. Engage in any other agricultural activity as determined by the State Agriculture Development Committee and adopted by rule or regulation pursuant to the provisions of the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.).

(cf: P.L.2009, c.213, s.2)

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

a. Notwithstanding any law, rule or regulation to the contrary, except as otherwise provided pursuant to section 1 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) the biomass or solar energy generation facilities, structures, and equipment do not interfere significantly with the use of the land for agricultural or horticultural production, as determined by the committee;

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

(3) the biomass or solar energy generation facilities, structures, and equipment 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) the biomass or solar energy generation facilities, structures, and equipment 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 biomass or solar energy generation facilities, structures, and equipment and the farm on which they are installed and operated may only sell energy through net metering or as otherwise permitted under an agreement allowed pursuant to paragraph (2) of this subsection;

(5) the wind energy generation facilities, structures, and equipment do not interfere significantly with the use of the land for agricultural or horticultural production, as determined by the committee, and they shall not be considered to interfere in that manner if they do not reduce by more than one percent after completion of construction of the facilities, structures and equipment, the land potentially available for agricultural or horticultural production;

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

(7) the biomass, solar, and wind energy generation facilities, structures, and equipment satisfy electrical interconnection standards established by the Board of Public Utilities.

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 1 of P.L. , c. (C. ) (pending before 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. If the committee takes no action on an administratively complete application on or before 90 days have elapsed from the date the committee received it, the application shall be deemed approved and shall be subject to no further regulatory review or approvals by the committee.

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 ¹[,] or¹ review,¹and¹ approval ¹[,]¹ or application ¹therefor,¹ pursuant to section 1 of P.L. , c. (C. ) (pending before the Legislature as this bill).

Until the adoption of such rules and regulations, the committee shall review and approve or disapprove applications within 90 days after receiving an administratively complete application by applying the standards and provisions set forth in this section and P.L.2009, c.213 (C.4:1C-32.4 et al.).

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 or section 1 of P.L. , c. (C. ) (pending before the Legislature as this bill) 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).

¹5. 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 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.¹

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

¹[5.] 6.¹ This act shall take effect immediately.