By DAVID THOMPSON – firstname.lastname@example.org
Vermont-based Laurel Hill Wind Energy Co. has appealed the county Zoning Hearing Board’s decision to deny the company a special exception to build a wind farm in northern Lycoming County.
On July 14, the board voted three to two to deny the exception after a hearing that spanned nearly a year-and-a-half and included the testimony of dozens of people.
The appeal, which was filed on Thursday by attorney Thomas C. Marshall of the law firm McNerney, Page, Vanderlin and Hall, claims the board committed legal errors and based its decision on findings supported by little or no evidence.
“Furthermore, the board based its decision on factors it was not permitted to consider,and based some of its findings on evidence that was never introduced,” Marshall wrote in the appeal.
The company filed an application for the special exception to build 47 388-foot-tall wind turbines on a mountain ridge in Jackson and McIntyre townships zoned either for agriculture or resource protection.
Laurel Hill later reduced the project scope to 35 larger turbines and relocated some of the turbines in an effort to reduce its impact on the area.
It also agreed to a list of mitigation measures approved by the county Planning Commission that commission executive director Jerry S. Walls said would lessen the project’s impact and make it conform more to the county zoning ordinance and Comprehensive Plan.
The board initially determined – and a Court of Common Pleas judge later agreed – that the project qualified as a public service, which is allowable “by right” in an agriculture zone and by special exception in a resource protection zone.
The board’s decision on whether to grant the special exception permit had to be based on county zoning-ordinance guidelines for evaluating special exceptions, according to the appeal.
The project must be consistent with the county Comprehensive Plan and county zoning ordinance regarding resource-protection zones, according to those guidelines. It also cannot adversely affect neighboring property or the environment, or burden public utilities, facilities or services.
According to the board’s written decision, the project was inconsistent with the county Comprehensive Plan and zoning ordinance, and would adversely affect neighboring property and the environment.
The board also determined that measures set forth by the Planning Commission and the company were insufficient to adequately lessen those effects.
The appeal argues that the board’s assertion that the project would adversely affect wildlife was not based on substantial evidence, and was, in fact, overwhelmingly contradicted by evidence presented at the hearing.
Those objecting to the project did not present “competent” testimony regarding visibility and noise affects, even though the board cited those factors in its decision, according to the appeal.
The appeal also called the board’s ruling that the project could adversely affect public water supplies and fisheries “speculative” and “not supported by any evidence whatsoever.”
“The board made numerous other findings of fact that are not supported by substantial evidence, and, in some cases that are not supported by any evidence whatsoever,” it said.
“Not only did we submit experts, no one refuted our facts,” said Robert Charlebois, managing director of Catamount Energy Corp., parent company of Laurel Hill.
Charlebois agreed that factual and legal errors were made when the board handed down its decision.
“We look forward to proving our case in court,” Charlebois said.
Zoning Hearing Board solicitor Karl K. Baldys did not return a call seeking comment.
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