Malitsch and Mangold v. Penn Forest Township Zoning Hearing Board 

28. Atlantic Wind has failed to produce sufficient evidence and failed to sustain its burden to show that the proposed Wind Turbine project will comply with section 402.A.54.p of the Zoning Ordinance.

29. As Atlantic Wind has failed to meet its burden of proof and persuasion regarding the specific requirements of the Zoning Ordinance for wind turbines, no presumption has arisen that Atlantic Wind’s proposed use is consistent with the health, safety and general welfare of the community.

30. Although we find that no burden has shifted to the Objectors to present evidence and persuade this Court that the proposed use will generate adverse impacts not normally generated by such use and that these impacts would pose a substantial threat to the health and safety of the community, the Objectors presented credible expert testimony and scientific evidence that the proposed use will have a detrimental effect on the health, safety and welfare of the community. …

38. The current principal use of the proposed Project Area is for the production of potable water.

39. The proposed wind turbine project would be an additional principal use in the Project Area. ( Zoning Ordinance, section 306.B.1).

40. Unless Bethlehem Authority ceases to use the Project Area for the production of potable water, the Wind Turbine Project would constitute a second principal use within a residential district in violation of section 801.B.2 of the Zoning Ordinance.

41. As Atlantic Wind does not meet the requirements of the Zoning Ordinance relative to the proposed use and does not challenge the validity of the Zoning Ordinance nor seek to have the property re-zoned, the application for a special exception to permit wind turbines in an R-1 zoning district must be denied.

42. Having failed to meet its burden of production and persuasion concerning its request for a special exception to permit wind turbines in an R-1 zoning district, Atlantic Wind’s second request for a special exception to permit an operations and safety building as a use not specifically provided for (and not prohibited) in any of the zoning districts is rendered moot and denied.

43. Having failed to meet its burden of production and persuasion concerning its request for a special exception to permit wind turbines in an R-1 zoning district, Atlantic Wind’s request for an interpretation of the Zoning Ordinance relative to the proposed permanent meteorological towers being permitted as either integral parts of the wind turbine use or as accessory uses or structures which are customary and incidental to the wind turbine use is rendered moot and denied.

44. Having failed to meet its burden of production and persuasion concerning its request for a special exception to permit wind turbines in an R-1 zoning district, Atlantic wind’s request for a special exception to permit the permanent meteorological towers as a use not specifically provided for (and not prohibited) in any of the zoning districts is rendered moot and denied. …

IV. CONCLUSION

As Atlantic Wind has failed to demonstrate that the sound produced by the proposed wind turbines will not exceed forty-five (45) A-weighted decibels and that there will be only one (1) 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 a special exception to be granted under the Penn Forest Township Zoning Ordinance. Therefore, the deemed approval of Atlantic Wind’s application for a special exception must be vacated and we will enter the following

ORDER OF COURT

AND NOW, to wit, this 21st day of April, 2020, upon consideration of Appellants’ land use appeal and the oral argument of counsel thereon, our review of the record created before the Penn Forest Township Zoning Hearing Board and the Referee appointed by this Court, the briefs of the parties, and the report of the Referee, and in accordance with our Memorandum Opinion bearing even date herewith, it is hereby ORDERED and DECREED as follows:

1. The land use appeal of Phillip C. Malit sch 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.

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