A group of Penn Forest Township residents recently told a judge he shouldn’t allow 28 proposed turbines on the Bethlehem Watershed property because they will exceed the township’s noise regulations, and the property is already used as a government facility.

The residents are intervening in a lawsuit filed by Atlantic Wind, the developer of the proposed wind farm, seeking to overturn a December 2018 decision by the township’s zoning hearing board. Atlantic Wind has appealed the zoners’ decision to deny it permission to build the turbines, which would be located on the north and south sides of Hatchery Road.

Judge Steven R. Serfass recently accepted written and oral arguments from the developer of the proposed turbines, the township and residents who are opposed to the project.

The zoning appeal involves the second application by Atlantic Wind, which was filed last year, for 28 turbines, some of which would reach nearly 600 feet. A separate, previous zoning appeal before Serfass, involving a 2016 application from Atlantic Wind for 37 nearly 525-foot turbines on the same site, is still pending.

The proposed turbines are located in the township’s R-1 rural residential agricultural district, where they require a special exception under the township zoning ordinance. The zoning hearing board denied the special exception in December. A written decision in January explained that the turbines would exceed the sound requirements and create a second use on the property, which the zoners said is already used as a government facility for drinking water production.

For the sound issue, the zoning hearing board said the residents’ preferred method, which measures instantaneous sound, is better than the one preferred by Atlantic Wind, which averages the sound over a period of time.

Atlantic Wind says the zoning hearing board should have accepted its method. An expert who Atlantic Wind called to testify at the zoning hearing said the developer’s method is the one preferred by the wind energy industry.

The neighbors say that under their preferred method, the sound would exceed 45 decibels at the nearest property.

Before the zoners denied the plan, Atlantic Wind said if the project was approved, it would agree to reduce the number of turbines to 24. It said it would have met the township’s sound requirement, but the zoners didn’t let it present testimony supporting the idea.

Atlantic Wind also said that the zoners incorrectly found that the property is a government facility for producing drinking water. It said there is no structures or improvements on the property dedicated to that use.

The residents and the township say that the zoning hearing board read the law correctly when they denied Atlantic Wind’s application for a special exception.

Under the township zoning ordinance, properties may only have one principal use. Anders said the zoners were correct in finding that property is already being used as a government facility, because the authority maintains most of the land as forest in order to maintain the water quality of the Penn Forest and Wild Creek reservoirs. The reservoirs provide drinking water for the City of Bethlehem. He cited multiple documents in which the authority states that it protects the property for the production of potable water. One of the documents was the authority’s lease with Atlantic Wind to build the turbines on the property.

Anders raised several other issues in the residents’ brief in support of the zoning hearing board decision.

He wrote that the turbines aren’t certified by Underwriters Laboratories or a similar organization, there was no testimony about lighting or radio interference, and that an electrical substation included in the project isn’t permitted in the R-2 residential district, where part of the project is located.

William Fontaine II, a resident representing himself, raised separate issues of his own, also in support of the zoners.

On the day when Serfass was scheduled to hear oral arguments in the case, Atlantic Wind submitted a brief in support of its appeal. It stated that the judge should not consider the other issues which Anders and Fontaine put forth. It cited court cases which say that in a zoning appeal, a judge must limit his review to the issues raised by the appellant, in this case Atlantic Wind.

At the urging of the attorneys for the township and residents, Serfass agreed to give them until July 26 to respond to Atlantic Wind’s latest brief.

Both sides will then await Serfass’ decision in this case as well as the 2016 case.