Carbon County County Judge Steven Serfass heard arguments Tuesday in Atlantic Wind’s case against Penn Forest Township’s zoning hearing board.
Atlantic Wind asked the court to order a change of venue and to remove the Penn Forest Township zoning hearing board in favor of an independent hearing officer.
During Tuesday’s hearing, zoning board solicitor Matthew Rapa told Serfass that the request is “unprecedented” and that there is little to no case law supporting the applicant’s request.
“The court has no subject matter jurisdiction to appoint an independent hearing officer,” Rapa said. “The (Municipal Planning Code) only allows for the board itself to appoint a hearing officer.”
Rapa said the court may only hear the matter on appeal and that unless the zoning hearing board was permitted to continue to the conclusion of the hearings, there would be no complete record for the court to review and consider.
Rapa said there had already been “four or five hearings, lasting several hours each,” and that the record was almost complete.
Rapa said the meetings did sometimes get a “bit rowdy and unruly” but that the board members did not feel a need to remove themselves from the proceedings.
“Atlantic Wind has not had any interference with their ability to present witnesses or to cross-examine witnesses put on by the objectors,” Rapa said. “There has been no indication from the board members that they believe that they would be unable to make a fair and impartial decision in this matter.”
Attorney Jonathan Bradbard spoke on behalf of Atlantic Wind.
“This is an extraordinary case. We could find no cases of threats against the zoning hearing board,” said Bradbard when he addressed the court. “Atlantic Wind is not objecting to the procedure in this matter, but the venue and the manner in which they are being heard.”
“How does appointing a hearing officer address your safety concerns?” Serfass asked Bradbard.
“Each meeting became more unruly, more emotionally charged,” Bradbard said. “We question how that affects the mindset of the board, how does that go to their objectivity. This is the atmosphere that the applicant has to operate in.”
“I see this as a venue issue mainly,” said Serfass. “Have any of the members of the board offered to recuse themselves? Don’t you think if they felt that way they would step down?”
“We just want to make sure that the people deciding this matter are making those decisions with a clear head,” Bardbard said.
In rebuttal, Rapa added that Atlantic Wind only raised these concerns after five hearings and that it was Atlantic Wind’s own security team that was seen to be armed at the hearings.
“There simply is no case law where the court has taken the matter out of the hands of the (zoning hearing board),” Rapa said. “We believe that a change of venue would cure all of Atlantic Wind’s concerns.”
Bardbard said that once the record is complete, it goes to the court on appeal as is. There is no background in the record, so if the record is tainted by something, there is nothing there that the appeals officer would see.
“What is to stop this from affecting the hearing officer?” Serfass asked Bradbard. “What is to stop you from coming back to us with the same argument later?”
Serfass continued the stay of the proceedings to give the court time to consider the matter. Rapa was given two weeks to review additional case law and provide any additional information to the court for consideration. Bradbard was given an additional 10 days to respond to any new filings by Rapa.
The soonest the matter will be decided will be mid- to late-January.
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