A Uniontown attorney has warned Fayette County it may have to pay to tear down as many as 18 wind turbines as a result of a decision in Commonwealth Court that raises concerns they are too close to neighboring properties in Springhill and Georges townships.
But a county solicitor said it’s not been determined if the wind turbines, commonly called windmills, fail to meet a 425-foot setback requirement, or if bonds to cover their removal were posted.
Gary Altman, who represents Thomas J. Bozek of Springhill Township, advised solicitors Sheryl Heid and John Cupp of the county’s potential liability in a July 24 letter.
Altman said it appears a “decommissioning bond” was not posted when the windmills were built, putting costs for any potential removal on the county.
“I am writing both of you because this is a potentially extremely serious problem for the county that the county commissioners, not just the planning office, will want to address,” Altman wrote in the letter. “The possibility exists that Fayette County may have to take these 18 wind turbines down.”
In a May 20 memorandum opinion, a panel of three Commonwealth Court judges reversed a county judge’s order that allowed PPM Atlantic Renewable, which has since been acquired by Iberdrola Renewables, to install the wind turbines under various requirements imposed by the county’s zoning hearing board.
The requirements included 425-foot setbacks from neighboring properties and 500-foot setbacks from roads “based on the risk of ice throws,” according to the opinion.
Altman said the wind farm has “a whole bunch of towers” that fail to meet the setback requirement, but Heid said that’s still unclear.
She plans to meet with Iberdrola’s attorney, Dan Rullo of Somerset County, to explore the issue.
“We want to look, with the current position of the windmills, with how far back they are, because we don’t know the answer to that,” Heid said. “I want them to submit the construction maps so we can tell distances.”
Heid said Iberdrola may challenge the ruling before the state Supreme Court, which would delay any action. Rullo could not be reached for comment.
Paul Copleman, Iberdrola spokesman, said the wind turbines will remain in operation.
“The wind farm complies with local zoning, so we do not anticipate that we will have to make any changes,” he said in an emailed statement.
Heid said decommissioning bonds are required and were likely filed with the townships.
But supervisors in both townships said no bonds were posted with them.
“That all went through the county,” said Mark Migyanko of Georges. “The main thing we had was the roads.”
Springhill Supervisor Henry McClain said he handles “just about everything” that passes through the township office, and he had no knowledge of any bonds posted there for the turbines.
County Commissioner Angela Zimmerlink said she has not yet heard from Cupp or Heid, but she is scheduled to meet with Cupp next week.
Commissioner Vincent Zapotosky said he was unaware of Altman’s letter. He questioned the county’s alleged liability, noting the wind turbines had the proper approvals when they were built.
He said the county’s zoning ordinance regarding wind turbines has since been amended.
“The county didn’t build them and the county isn’t responsible for them,” Zapotosky said. “They filed the appropriate petitions, ordinance changes were made to make sure they were placed in proper distances, and there was even a stipulation with some property owners.”
Sara Rosiek, director of the county office of Planning, Zoning and Community Development, said permits for the wind turbines’ construction were issued after the ordinance changes were made.
Those changes allow turbines as permitted uses in agricultural zones, she said, and do not require additional approvals through the zoning board.
In a footnote to its memorandum opinion, the Commonwealth Court judges noted those same ordinance changes could render their reversal “moot.”
“Those past and future revisions dramatically illustrate the point made above that there are still many unanswered questions about the best way to implement wind energy technology,” the footnote said. “The laws governing wind energy are in an understandable state of flux. However, neither party has requested that the appeal be withdrawn.”
Altman said he has three other appeals involving wind turbines pending at the county level, including one that challenges them as permitted uses in agricultural zones.
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