BY TOM VENESKY
A decision to allow a variance to construct nine turbines in Bear Creek Township has been appealed to Luzerne County court.
Defend Our Watershed, a local environmental watchdog group, along with township residents Matthew Hrabousky and William D. and Jeanie Haas, filed the appeal on Tuesday asking the court to reverse a decision by the township zoning hearing board to grant a “use variance” allowing the turbines to be constructed on land zoned for conservation.
The appeal also requests the court to nullify two prior use variances granted for the project in 2001 and 2003 because Energy Unlimited Inc., the firm planning the project, failed to commence with construction within one year of the approvals.
In August 2005, Energy Unlimited requested the variance to construct nine turbines near Crystal Lake on 835 acres of property that Luzerne County acquired from Theta Land Corp. The nine turbines are in addition to 25 turbines previously proposed for the site known as the Penobscot Mountain Wind Farm.
Last week, Luzerne County President Judge Michael Conahan overturned a decision by the township board of supervisors to deny the plan for 25 turbines.
Energy Unlimited originally sought a variance, which was granted, to construct 10 turbines on the property in November 2001. On Oct. 28, 2003, the zoning hearing board modified the decision to allow 26 turbines to be constructed. One of the 26 turbines has since been removed from the project. In August 2005, Energy Unlimited requested a variance for an additional nine turbines, for a total of 34 turbines. Beginning that September, the zoning hearing board conducted 12 hearings on the variance before issuing approval in May 2006.
According to the appeal, wind turbines are not a permitted use on property zoned C-1 (conservation), nor are conditional uses or special exceptions permissible. A variance can be granted if the zoning results in a unnecessary hardship and several conditions are met, including: unique physical characteristics of the property lead to the hardship; the hardship has not been created by the variance applicant; and the variance will not alter the character of the area.
The appeal also alleges the variance should not have been granted because the conditions for hardship were not met and the request should have been considered a new application separate from the two prior variances because construction had not commenced within one year of approval, as required by township ordinance.
Attorney William Higgs, representing Defend Our Watershed, Hrabousky and the Haases, could not be reached for comment.
Defend Our Watershed board member Dr. Henry Smith Jr. said the zoning board was overanxious when it approved the variance.
“Looking at the law and the township ordinances, it’s apparent the zoning board was eager to give this approval despite the township ordinances,” he said.
Attorney Ernie Preate, representing Energy Unlimited, said eight months of testimony from expert witnesses during the zoning hearing process is evidence that the zoning board was correct in granting the variance.
The variance is now before the township planning commission.
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