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Commonwealth Court upholds revocation of Butler windmill permit
Credit: By Peter E. Bortner, Staff Writer, Republican & Herald, republicanherald.com 9 March 2011 ~~
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Butler Township had the right to revoke a zoning permit issued to the developer of a wind turbine project along Ashland Mountain, a three-judge Commonwealth Court panel has ruled.
In an 18-page opinion and order filed Tuesday in Pottsville, the panel upheld county Judge Charles M. Miller’s ruling that Broad Mountain Development Co. LLC did not have the right to the permit because wind turbines, more commonly called windmills, are not allowed in a Woodland-Conservation zoning district in the township.
Citizens who opposed the building of the windmills filed a timely appeal of Broad Mountain’s original permit, and the company did not acquire a vested right to the permit, according to the opinion written by Judge P. Kevin Brobson.
Brobson’s opinion effectively ends the proposed construction in Butler Township of the windmills, which have sprouted on many mountains in northern Schuylkill County.
Broad Mountain had sought to build 27 windmills along the mountain.
Township Zoning Officer Thomas Squires issued the permit to the company Feb. 4, 2008, at the request of John D. Rampolla, Broad Mountain’s secretary-treasurer. The township Zoning Hearing Board revoked the permit July 29, 2009, ruling Squires did not have the authority to issue it because a wind farm is not a permitted use in a Woodland Conservation (W-C) zoning district.
Broad Mountain appealed that ruling on Aug. 25, 2009, but Miller upheld it on May 28.
Brobson wrote that Miller’s determination that the citizens had the right to intervene in the case, and did so in a timely manner, was legally correct.
The citizens who intervened in the case testified their lives would be immediately and substantially affected by the windmills and the board accepted that testimony, Brobson wrote.
In contrast, the company’s argument that the citizens’ interests were only remote, indirect and aesthetic are not supported by the evidence, according to Brobson.
“Intervenors testified to more than aesthetic concerns surrounding the Project,” including noise, ice, fires, potential health problems and lower property values, he wrote. “The credible evidence demonstrates that Intervenors share a substantial, direct and immediate interest in the potentially negative effects of the Project.”
Furthermore, the citizens intervened within 30 days of when they had the opportunity to learn of the permit, which is the proper legal standard, he wrote.
Broad Mountain’s earlier construction of a meteorological tower near the site of the proposed project did not open the door for the construction of windmills, Brobson wrote.
“A meteorological tower is not a wind turbine and not a component of a string of wind turbines that collectively generate electricity,” he wrote.
Finally, Broad Mountain did not gain any right to the permit, since the citizens filed a timely appeal of it to the board, Brobson wrote.
Judge Bernard L. McGinley and Senior Judge Keith B. Quigley, the other panel members, joined Brobson’s opinion.
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