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Court-appointed referee: Deny Atlantic Wind application

Published November 23. 2018 12:45PM

A court-appointed referee has recommended that a Carbon County judge decide against a wind energy company seeking to build wind turbines on land owned by the Bethlehem Water Authority in Penn Forest Township.

Attorney William Schwab filed a report on Tuesday recommending that the court deny Atlantic Wind’s application for a special exception to build wind turbines on the 9,000-plus-acre watershed property.

“The application of the Atlantic Wind should be denied as filed as it does not comply with the not-to-exceed sound standard under the Penn Forest Zoning Ordinance; would establish a second principal use of the land in contravention of the (ordinance); and that no hardship was shown for a service building in the R-2 District,” Schwab wrote.

The referee’s report is part of the record in an appeal Carbon County Common Pleas Court Judge Steven Serfass is currently hearing. Serfass appointed Schwab as referee earlier this year to hear more evidence.

Two township residents filed the appeal because they argue that Atlantic Wind’s application for a special exception should not have been deemed approved.

It regards Atlantic Wind’s first application, filed back in 2016. Since then, the company has filed a second special exception application to build fewer turbines, albeit taller ones, on the same site.

Atlantic Wind argues that the first application was deemed approved on May 5, 2017, when the zoning hearing board missed a deadline to schedule a hearing. At the time, the case was delayed because Atlantic Wind’s officials were concerned about their safety during the hearings, amid rumors that residents were bringing guns to the hearings.

Neighbors Phillip Malitsch and Christopher Mangold appealed to Carbon County Common Pleas Court just a few weeks after Atlantic Wind published a public notice claiming that the application had been deemed approved.

In July 2017, Atlantic Wind asked if it could submit additional evidence that would help its appeal. Attorneys argued that they would have presented the evidence if the zoning hearing board had scheduled the hearing on time. The zoning hearing board did in fact hold its hearing after the deemed approval, but Atlantic Wind didn’t attend. The zoning board voted at this meeting to deny Atlantic Wind’s application.

Schwab was appointed as a referee to hear the additional evidence, and present it to the court.

Schwab wrote in his report that he only considered testimony which was relevant to the township zoning ordinance.

He wrote that Atlantic Wind did not do enough to show that the wind turbines wouldn’t exceed sound limits in the ordinance.

Schwab also wrote that the turbines would create a second, illegal use on the property. The ordinance states that a lot in the residential district can only have one principal use. Schwab wrote that the land is currently being used as a public water supply. Establishing a second use — wind turbines — would violate the ordinance.

“If Bethlehem Water Authority certifies that (it) ceases to use all land including the reservoir for a public water supply, the applicant should be granted provided windmills do not exceed (sound limits)” Schwab wrote.

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