Penn Forest Township supervisors will not appeal a judge’s ruling against its zoning hearing board that will allow a hotly contested wind turbine permit to move forward.

Carbon County Judge Steven R. Serfass ruled the zoning board didn’t act in a timely manner, which deemed the permit approved.

As a result, the intention of Atlantic Wind to build up to 37 wind turbines will advance.

The project has caused dismay among residents, and the township has received more than 160 emails and a petition with 469 signatures requesting it take action and file an appeal of the ruling. According to solicitor Thomas Nanovic, that isn’t possible.

Background

Atlantic Wind had filed for a special exception permit to build up the wind turbines in the township. After Serfass denied Atlantic Wind’s request for the court to appoint an independent hearing officer and a change of venue for the public hearings on the permit, the township zoning hearing board failed to schedule additional hearings within the 45 days allowed by the Municipal Planning Code.

The board’s failure to schedule the hearing within that time frame allowed Atlantic Wind to claim that the permit has been deemed approved. The judge’s ruling lifted the stay and Atlantic Wind notified the Penn Forest Township Zoning Hearing Board that it considered the permit approved.

Residents want action, answers

Township residents Phillip C. Malitsch and Christopher Mangold, who were objectors to the permit application recognized by the hearing board, immediately filed an appeal of the deemed approval in the Carbon County Court of Common Pleas. The zoning hearing board joined in the appeal.

Last month, Serfass ruled that the Penn Forest Township Zoning Hearing Board cannot appeal the deemed approval, thus removing the hearing board from any further action regarding the permit.

“The deemed approval is the board’s decision by operation of law that resulted from its own delay,” Serfass found.

The judge determined that the board could not appeal its own decision, even if that decision came about by a technicality.

At Monday evening’s supervisors meeting, a number of township residents requested that the supervisors file an appeal of Serfass’ decision.

Township resident Marcus Laurence asked the board what its intentions are.

To date, supervisors have not spoken publicly about the Atlantic Wind application.

“I know that many residents are frustrated that the supervisors have not been outspoken about this project,” said Nanovic. “As most of you know that was on my advice. And they chose to listen to their lawyer.”

Nanovic has said that he did not want the supervisors to express their opinions, because at some point if the project should progress, a land development plan would come before the board for review.

“Should this matter come before the board, there will be no reason for them to be asked to recuse themselves, thereby taking the matter out of their hands,” Nanovic said. “It will be their job to make sure that the ordinance is adhered to.”

Laurence agreed that the residents want the supervisors to “advocate for the ordinance.”

Advised not to appeal

The appeal period has passed, but Nanovic told residents why he advised the board not to appeal the ruling.

“First of all, I have carefully read the opinion of Judge Serfass, and it is a well thought-out opinion,” Nanovic said. “I don’t think it would be overturned on appeal, mainly because there aren’t many facts in dispute. The law is not cloudy in this area.”

The second reason Nanovic cited was that objectors Malitsch and Mangold had rightly filed an appeal of the deemed approval, to which the township has joined as an interested party. So the township is involved and in the position to argue in support of the ordinance.

Nanovic said that the township has considered hiring an engineer to advise them on the matter.

“We would not be advocating for or against Atlantic Wind,” Nanovic added.

Nanovic said that the last reason for not filing an appeal was the same reason he had been using all along.

“If approved, Atlantic Wind will have to come before the board and the board will have to review the land development plan,” he said.

Laurence went on to ask the board who they were going to hold accountable for the deemed approval ultimately coming about.

“Mr. Rapa should have moved forward and not waited,” Laurence said. “How are we going to hold the zoning hearing board or the person advising them, who is being held accountable?”

Nanovic said the board has not had any such discussions.

Attorney Matthew Rapa was the solicitor at the time that the deemed approval was made. During its reorganization meeting in January the zoning hearing board appointed attorney Michael S. Greek as its solicitor moving forward.

Attempts to reach Greek were unsuccessful as of presstime.