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Township challenges wind ruling

Penn Forest Township is challenging a recent appeals court decision which revived a wind farm proposal on Bethlehem Authority land in the township.

On Wednesday, the township filed a petition saying the Commonwealth Court should hear additional arguments in the case of Atlantic Wind v. Zoning Hearing Board of Penn Forest Township.

A group of 42 residents who live near the Bethlehem Authority watershed also filed a similar petition.

“We believe the (county court) judge and the zoning hearing board got it right,” said Bruce Anders, the attorney representing the 42 residents.

Earlier this month, a Commonwealth Court judge reversed parts of the zoning hearing board’s 2019 decision on the wind farm, and sent part of the case back to them for reconsideration.

The decision was on Atlantic Wind’s second proposal, filed in 2018 and including 28 nearly 600-foot turbines. Another application, filed in 2016, included 37 smaller turbines and was withdrawn last year.

The zoners held hearings on the second application in 2018 and ultimately voted to deny Atlantic Wind a special exception, which was required to build wind turbines in the residential district where the watershed is located.

A county court judge upheld the zoning hearing board’s decision in 2020. Atlantic Wind and Bethlehem Authority appealed to the Commonwealth Court 30 days after that decision. Earlier this month, the Commonwealth Court ruled that parts of the zoning hearing board decision were incorrect.

The court ruled that the zoning hearing board must reconsider the case using a different method for predicting whether the sound from the turbines will exceed the township’s noise limits for wind turbines. But neither the township nor the residents discussed the sound issue in their petitions.

Rather, they argued that the Commonwealth Court ruled on aspects of the case that were not up for appeal, overstepping its authority.

The township says that wind turbines would be a second principal use of the property, which is not allowed in a residential district. They say the current use is the production of drinking water, because of the reservoirs on the site which serve the Bethlehem Authority’s customers.

The court’s ruling said that a “government use” like drinking water production requires a special exception - which the township says was not an issue that was up for appeal.

The township argued that drinking water production is a pre-existing, nonconforming use. It said there is no special exception because the reservoirs were created in 1958, before the township had a zoning ordinance.

The lawyer representing the 42 neighbors of the project also argued that the court incorrectly ruled that drinking water production was not a principal use of the property.

In addition, the neighbors argued that transmission lines associated with the project are proposed for a zoning district which does not allow wind turbines.

The new zoning hearing ordered by the court is put on hold until the judge rules on the petition for reargument. The 30-day period for the township and residents to appeal to the Pennsylvania Supreme Court is also on hold until then.

Atlantic Wind and Bethlehem Authority have 14 days to respond to the petitions in court.