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Carbon judge rules against Atlantic Wind turbines

A Carbon County judge has granted the appeal of two Penn Forest Township property owners who sought to stop the construction of 37 wind turbines in the township.

Property owners Phillip C. Malitsch and Christopher Mangold filed the action in May 2017 against the township zoning board, Atlantic Wind LLC and the Bethlehem Authority. The authority owns the land where the proposed wind turbines were to be constructed. The two plaintiffs’ properties abut the Bethlehem property.

In a 61-page opinion Judge Steven R. Serfass wrote, “Atlantic Wind has failed to demonstrate that the sound produced by the proposed wind turbines will not exceed 45 A-weighted decibels and that there will be only one principal use on the proposed project area. Atlantic Wind has failed to meet its burden of persuasion that the proposed wind turbine project will comply with all the objective requirements for special exception to the granted under the Penn Forest Township Zoning Ordinance.”

The two plaintiffs filed their appeal on May 22 challenging the “notice of deemed approval” published by Atlantic Wind in the Times News.

In response to Atlantic Wind’s notice, on May 25, 2017, the township zoning hearing board filed a “motion to strike notice of deemed approval published May 5, 2017.

Atlantic Wind then intervened that action on June 5, 2017, followed on June 7, 2017, by the township in support of the plaintiffs. Bethlehem Authority then joined the action with its own filing on June 20, 2017.

Following legal briefs and oral arguments held before Serfass, Atlantic Wind’s zoning application was deemed approved and that the township zoning hearing board lacked standing to strike the notice of deemed approval.

After that the legal battle continued as both sides filed numerous motions in support of their position. Serfass then appointed Attorney William G. Schwab to sit as referee in the matter and instructed him to receive additional evidence in the matter. He conducted two hearings and submitted his conclusions of law to the court. After that Serfass heard oral argument on the merits of the zoning appeal.

Serfass’s order states: “1) The land use appeal of Phillip C. Malitsch and Christopher Mangold is granted; 2) The deemed approval of the application of Atlantic Wind, LLC, for a special exception under the Penn Forest Township Zoning Ordinance is vacated; and 3) The application of Atlantic Wind, LLC for special exceptions under the Penn Forest Township Zoning Ordinance is denied.”

During the various motions and hearings held by the court, the plaintiffs’ chief argument was that the noise produced by the turbines would be such it would make living near them almost impossible and ruin their property value.

Both sides called acoustical engineers concerning the noise the turbines would produce at court hearings.

Atlantic Wind has since filed a new application to construct the wind turbines. That action is also being challenged in the courts by the township and township residents, specifically about 42 property owners in the area where the construction is proposed.

The action is pending and working its way through the courts. The last filing in that pending matter was on July 26, 2019, when legal briefs were filed by the various parties involved.

Atlantic Wind has the right to appeal Serfass’ opinion asking him to reconsider or filing an appeal directly with the state Commonwealth Court.