October 19, 2016
Pennsylvania

Penn Forest responds to Atlantic Wind suit

By Judy Dolgos-Kramer | Times News | October 19, 2016 | www.tnonline.com

The Penn Forest Township zoning board has filed preliminary objections to a suit filed by the company hoping to construct more than 30 wind turbines in the township.

Atlantic Wind filed the suit last month in the Carbon County Court of Common Pleas regarding its application for a special exception before the township’s zoning hearing board. The suit alleges that the company is being denied its constitutional right to due process.

In September, Atlantic Wind notified the zoning board that it would not be attending any additional public hearings related to its application to construct a wind turbine farm in the township due to its concerns about safety.

Attorney Debra Shulski wrote in a letter, “As you are aware … there have been ongoing security concerns. With each hearing, the issue has escalated to a point where we do not believe that the current venue is safe for any participant (including the parties, board members and general public).”

Shulski asked the board to voluntarily step down and support Atlantic Winds’ request for an independent hearing officer to hear the matter. The members of the zoning hearing board refused to step down.

Shulski argues in the complaint that Atlantic Wind will not receive a fair hearing under the circumstances because the zoning hearing board can’t remain “neutral, impartial and detached” because of “threats of violence and public intimidation against the zoning hearing board.”

The complaint seeks a court order appointing a neutral, impartial, detached and experienced zoning hearing officer and that the hearings be conducted at the courthouse in Jim Thorpe.

The township has requested that Judge Steven R. Serfass dismiss Atlantic Wind’s complaint citing three objections.

One of the objections is that the Court of Common Pleas has no jurisdiction over such matters. The pleading points out that the Municipal Planning Code grants “exclusive jurisdiction” to the zoning hearing board in matters related to special exceptions and there is no authority which permits the court to usurp the power granted to the zoning hearing board.

The second objection points out that Atlantic Wind has failed to “exhaust statutory remedy” in that the Municipal Planning Code requires that a final decision be issued before the court can become involved in matters relating to a special exception.

And lastly, the board objects to Atlantic Winds’ failure to join all of the necessary parties in the case.

Atlantic Wind filed the suit naming only the board as the defendant. However, during the course of the hearings, residents Christopher Mangold and Phillip Malitsch have intervened, as well as the Bethlehem Authority. None of the three additional parties were named in the Atlantic Winds suit as defendants.

Based on the objections, the board requested that Serfass deny the request of Atlantic Wind and permit the board to proceed with the hearings on the application.