May 11, 2017

Atlantic Wind battle goes on; Hearing set for May 17, but company claims approval now

By Judy Dolgos-Kramer | Times News | Thursday, May 11, 2017 |

After months of delays the Penn Forest Township zoning hearing board is prepared to proceed with its public hearings on the application by Atlantic Wind to build up to 37 wind turbines on property owned by the Bethlehem Water Authority within the township.

Last week, the zoning hearing board published a legal notice announcing a hearing at 6 p.m. May 17 at the Penn Forest Volunteer Fire Company No. 1.

Two days later Atlantic Wind published a much different notice, claiming instead that since the zoning hearing board failed to hold additional hearings within 45 days, under the Municipalities Planning Code, the application is “deemed approved.”

The notice said “the zoning hearing board failed to hold subsequent hearings on the application within the 45 days of prior hearings,” in accordance with the municipalities planning code.

“The application is deemed to be rendered in favor of Atlantic Wind LLC. Nothing herein shall prejudice the right of any party opposing the application to appeal the decision to a court of competent jurisdiction,” Atlantic Wind said in a public notice.

“We’re simply exercising our legal right to due process, as required by state law,” said Paul Copleman, communications manager for Avangrid Renewables, Atlantic Wind’s parent company.

When reached for comment, zoning board Chairwoman Audrey Wargo said that the board has been in limbo during the last eight months.

“The County Commissioners denied Atlantic Wind’s request (to use the county courthouse to hold meetings) on March 30,” Wargo said. “Anticipating the number of attorneys, witnesses and the general public, we know that there is not enough room at the municipal building at accommodate the number of people that have been attending.

“The fire company has been a good location so we booked the first available date they had.”

Zoning board attorney Matthew Rapa was more direct in his response to Atlantic Wind’s claims.

“Atlantic’s application has been delayed due to their refusal to attend hearing at the Penn Forest Fire Hall, the filing of frivolous complaints with the Carbon County Courthouse, their attempts to negotiate with the County Commissioners, and their filing of an appeal to the Commonwealth Court of Pennsylvania,” Rapa said. “Any delays that have resulted in this matter are the direct result of the actions of Atlantic Wind. The Zoning Hearing Board has conscientiously attempted to move this matter forward.”

Rapa said he is unaware of any legal authority to back Atlantic Winds claims.

“The law under which Atlantic now claims relief was enacted to eliminate deliberate or negligent inaction by public officials to delay zoning matters, of which there is no record in this case,” Rapa said. “I am aware of no legal authority that would support Atlantic’s current claims given the procedural history of this matter.”

The wording in the notice of “deemed approval” by Atlantic Wind does not specify the date Atlantic uses as the start of the countdown to 45 days.

According to Copleman, Atlantic Wind is using the date that Carbon County Judge Steven Serfass provided notice of his decision, which sent the matter back to the zoning hearing board to decide.

“Judge Serfass issued his order on Feb. 17, and provided notice of his order on Feb. 21,” Copleman said. “Forty-five days from the notice date required the hearing to be held no later than April 7.”

After Serfass’ order, Atlantic Wind petitioned the Carbon County Commissioners for permission to move the hearings to the courthouse. The commissioners denied the request on March 30.

“Following the commissioner’s denial, Atlantic Wind reached out to me to inquire whether the zoning heard board would consider petitioning the commissioners to allow the hearings at the courthouse,” Rapa said. “Atlantic also forwarded its request to the township supervisors.”

“Although, the board had no opposition to a change in venue, the board would not agree to exert any additional time or resources of the township to find a new hearing location, when they believe the fire hall was an appropriate and safe venue that allowed members of the Penn Forest community to be present during the hearings. The board was also opposed to further delaying the future hearings.”

Rapa said the zoning hearing board will move to strike Atlantic Wind’s deemed approval.

“The zoning hearing board will meet at 6 p.m. on May 17, to continue the proceedings on Atlantic Wind’s application,” Wargo said. “All parties on the record are encouraged to attend.”

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