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Atlantic Wind appeals zoning denial

Attorneys for Atlantic Wind claim the Penn Forest Zoning Hearing Board “abused its discretion” when it denied Atlantic Wind’s second special exception permit application in December, according to an appeal to the Carbon County Court of Common Pleas filed Thursday.

Atlantic Wind’s second application included the construction of 28 nearly 600-foot-tall wind turbines on land in Penn Forest Township owned by the Bethlehem Water Authority.

On Jan. 30, the Penn Forest Township’s Zoning Hearing Board issued its written denial of that application. The board had determined that Atlantic Wind failed to prove that its project would adhere to the Penn Forest zoning ordinance.

On Tuesday, attorneys for Atlantic Wind and the opposition also presented arguments before Carbon County Court of Common Pleas Judge Steven R. Serfass regarding Atlantic Wind’s first application, which was initially submitted in April 2016. That application was deemed approved based on a technicality, but was subsequently denied by the board.

In the appeal, Debra A. Shulski and Edward J. Greene, attorneys for Atlantic Wind, call the zoning board’s denial of its second application “arbitrary and capricious,” saying that the zoning hearing board “improperly discriminated against Atlantic Wind and held Atlantic Wind to a stricter standard than mandated or permitted by the Pennsylvania Municipalities Planning Code, the Zoning Ordinance or Pennsylvania case law.”

The appeal cites the following issues:

• In Atlantic Wind’s last hearing with the zoning board, a representative from the Palmerton Fishing and Hunting Association “appeared only to assert an alleged property dispute.”

• While Penn Forest’s solicitor said that he was neither for nor against Atlantic Wind’s project when he entered his appearance, “his adversarial cross-examination was anything but neutral,” the appeal reads.

• Atlantic Wind voluntarily amended its plan beyond what was needed to meet the conditions of the zoning ordinance requirements, according to the appeal, reducing its original plan of 28 turbines down to 24 turbines.

• “The zoning board improperly permitted (Philip C.) Malitsch, who had been admitted as a party to a prior proceeding and is an active appellant in a pending land use appeal against Atlantic Wind, to testify as an expert professional engineer notwithstanding his personal bias against the application.”

Malitsch, a professional civil engineer with Hanover Engineering, testified over three hearings for the opposition. The Penn Forest Township resident also happens to live within roughly 2,700 feet of a proposed wind turbine, and Greene at the time argued against Malitsch being allowed to testify.

At the July 23 hearing, zoning board solicitor Michael Greek allowed Malitsch to be accepted as an expert and to testify, saying that the board would take both arguments into consideration while reviewing the testimony before rendering its decision.

• The zoning hearing board asserted that Atlantic Wind did not comply with the sound provision, despite three witnesses and sound modeling that confirmed it would, according to the appeal.

The zoning board had found that Atlantic Wind testified to an average project sound level not exceeding 45 dBA at any occupied dwelling was insufficient.

“The courts have held that until a use is actually in existence all an applicant can do is agree to comply with respect to sound as there is no way to demonstrate compliance until the facility is operational,” according to the appeal.

• The board determined that the wind energy facility is a second principal use on the property, and thereby in violation with the zoning ordinance.

The zoning board determined that the property is used in the production of potable water, despite there being no structures, improvements or activity on the land. The board also narrowed the terms of the zoning ordinance, prohibiting wind energy facilities, which constitutes exclusionary zoning and an invalid ordinance, the appeal states.

According to the board’s written decision, the board concluded that wind turbines would constitute a second principal use in the project area, contrary to the ordinance. The collector substations, circuit switchers and transmission lines were identified as accessory structures which are not permitted in the proposed area.

The board noted that the application was in direct conflict with a conservation easement that the Bethlehem Water Authority entered into with the Nature Conservancy in May 2011.

The hearing board concluded that the principal use for the Bethlehem Water Authority property located in the R-1 district, to be the production of potable water.

This determination was grounded in the Bethlehem Authority’s own testimony and documents.

Judy Dolgos-Kramer contributed to this story.