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Winds of change in commonwealth court  

When it became apparent that the fight regarding the fate of Luzerne County’s Crystal Lake parcel was headed to court, numerous people savvy in the ways of the local judiciary warned us of what we were up against.

We were advised that we needed the funds to pursue the matter at least to the Commonwealth Court level because the local courts would probably be heavily swayed by politics. We at Defend Our Watershed refused to believe, given our case’s merits, that we could lose. This turned out to be naïve.

There were warning signs. The first was when the case was reassigned from Judge Anne Lokuta, who normally hears land-use cases, to Judge Michael Conahan. This was particularly odd because at the time Judge Conahan presided over orphan’s court, which handles family law issues.

Arguably, he should have been the last person in line to hear such cases.

Even more interesting is that Judge Conahan sits on the board of First National Community Bank, which is owned by Louis DeNaples. Mr. DeNaples has been widely reported as an owner of the shadowy Theta Land Corp., the former owner of Crystal Lake.

Theta not only profited richly by the land’s sale to the county but also will make a percentage of the profits if the proposed wind park is built. Given this, we believe that rather than go along with this convoluted judicial selection, Judge Conahan should have recused himself to avoid the appearance of impropriety.

At least he’s consistent. In August, he ruled to overturn the Bear Creek Township Supervisors’ decision to deny a construction permit for 26 turbines upwind of the Crystal Lake reservoir.

The township’s rejection of the application was based on Energy Unlimited’s failure to address several project modifications demanded by the township’s planning commission. Bereft of the cozy relationship they had with a previous board of supervisors, Energy Unlimited attempted to bully the current board, essentially telling the township what site modifications it was willing to make.

The board rejected this nonsense. But the judge sided with Energy Unlimited.

More recently, the judge ruled against an appeal of a Bear Creek Township Zoning Board decision to allow a variance for the construction of nine turbines on the opposite side of the lake. As an intervener, Defend Our Watershed believes that the township ordinance for conservation land (the category covering Crystal Lake) in Bear Creek Township prohibits industrialization and that Energy Unlimited has failed to meet the requirements for a variance under the township’s ordinances. The judge disagreed, ruling again to allow the wind facility to proceed.

Maybe this seems like sour grapes on our part. Note, however, that both of the judge’s rulings so far have the effect of facilitating construction of the wind facility while denying county residents access to public land bought at great expense for “conservation and recreation.”

The township and Defend Our Watershed were confident enough that we appealed both decisions to Commonwealth Court. We posted both sides’ legal briefs for the zoning case on www.savecrystallake.org so that you may read them yourself.

On Feb. 16, Commonwealth Court issued a unanimous ruling that reversed Judge Conahan on the township’s decision to reject plans for the bulk of the project. This will significantly delay wind park construction and ensure that new submissions will have to conform to a wind park ordinance recently enacted by Bear Creek Township.

This decision also makes us optimistic about the zoning appeal’s outcome.

It remains a mystery why county officials would spend $4 million of taxpayer funds on a valuable property only to step aside and allow it to be appropriated by others. We hope that Judge Conahan will have the decency to recuse himself from further rulings on this issue.

We also hope that county commissioners will wake up and begin to protect this valuable land resource. In the meantime, we will continue to defend our watershed.

Dr. Henry F. Smith Jr. is a physician who lives in Wright Township.


28 February 2007

This article is the work of the source indicated. Any opinions expressed in it are not necessarily those of National Wind Watch.

The copyright of this article resides with the author or publisher indicated. As part of its noncommercial effort to present the environmental, social, scientific, and economic issues of large-scale wind power development to a global audience seeking such information, National Wind Watch endeavors to observe “fair use” as provided for in section 107 of U.S. Copyright Law and similar “fair dealing” provisions of the copyright laws of other nations. Send requests to excerpt, general inquiries, and comments to query/wind-watch.org.

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