A company denied approvals for special exceptions and variances by the Fayette County Zoning Hearing Board that would have allowed construction of 18 wind-powered turbines in Georges and Springhill townships has appealed the ruling, urging the Fayette County Court of Common Pleas to assume jurisdiction of any additional proceedings.
In the appeal filed Wednesday in the office of Prothonotary Lance Winterhalter, attorneys for PPM Atlantic Renewable Energy Corp. based in Portland, Ore., allege the company has not and “cannot receive a fair and impartial hearing before the zoning hearing board.”
In asking the court to assume jurisdiction, the appeal states the zoning board and its solicitor, “through the statements, questions and actions of their solicitor and the ultimate decision of the board acted in the capacity of a party opposed to appellant’s applications thereby depriving appellant of its constitutional rights to a fair hearing and impartial tribunal.”
The zoning board unanimously ruled in March to deny the special exception for a wind-powered, electricity-generating facility and a variance from height and setback requirements. The denial affects a significant portion of a project called the South Chestnut Windpower Project. The plan included construction of a total of 24 wind-powered turbines in Georges, Springhill and Wharton townships.
The six windmills in Wharton Township were not part of the county zoning board decision because Wharton Township has its own zoning. The Wharton Township zoning board previously gave approval for those windmills.
In the ruling, the zoning board concluded that placement of the turbines “would produce too great of a negative impact upon Fayette County’s scenic Chestnut Ridge and would generally have a detrimental effect upon the health, safety and general welfare of not only the adjacent communities, but all of Fayette County, and therefore, the request of the petitioner for special exception for a wind-powered electricity-generating facility containing 24 wind towers and variance from height and setback requirements is denied.”
In the appeal, PPM Atlantic alleges the zoning board did not follow the zoning ordinance and by denying the special exceptions and variances, the zoning board “acted arbitrarily and capriciously and not in compliance with the powers grated them pursuant to the ordinance.”
The zoning board conducted an initial hearing on Oct. 17 and then held subsequent continued hearings on Oct. 31, Dec. 19, and Jan. 30.
Throughout testimony, neighboring property owners expressed concerns about noise and flickering from the turbines. A few people also spoke out in favor of the zoning board granting the request.
The owner of Laurel Caverns, David Cale, also testified that if constructed, the windmills could result in the site of the most killings of bats in the United States.
Cale said the site holds that potential, although he acknowledged under questioning that it is unknown if that actually would occur. The largest measured annual bat kill was in 2003 when 2,000 bats were killed at a windmill site in West Virginia.
All the windmills were to be located on land zoned A-1, agricultural/rural.
Samuel Enfield, development director of PPM’s mid-Atlantic region, said Wednesday that because requests for essentially three-quarters of the windmills in the project were denied, the company couldn’t proceed with the project. He further stated that the reasons for the denial were inconsistent with the zoning ordinance.
“Our feeling is since the zoning board ignored the ordinance, it indicates we may not get a real fair hearing,” Enfield said.
Additionally, Enfield said because solicitor Gretchen Mun-dorff actively participated in the discussion throughout the hearings, although she did not vote, the climate was not conducive for the zoning board to objectively rule on the ordinance.
Enfield testified during the hearings that the project included 3 1/2 miles along Chestnut Ridge on elevations between 2,400 and 2,760 feet on private property. He said the elevations in the area are the highest in the state, which makes the site a good fit for windmills. The towers are similar to ones built in Mill Run in 2001, but at 262 feet, are 12 feet higher. The blades are 145 feet long, for a total height of 406 feet.
The zoning ordinance only allows 250-foot towers, which necessitates the special exception for the size. PPM also was requesting several variance requests for setbacks to be less than 262 feet.
After issuing the ruling, zoning board chairman Jim Killinger called it the hardest the board has ever had to make.
By Amy Zalar, Herald-Standard
10 April 2008
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