Wind turbines dotting the hills above Penn Forest Township are still a real possibility.
Last week Carbon County Judge Steven Serfass issued an order on the Penn Forest Zoning Hearing Board to respond to a request by Atlantic Wind to enter additional testimony on the record.
Atlantic Wind LLC filed an application on April 1, 2016, seeking to build up to 37 wind turbines ranging in height from 400 to 525 feet on property belonging to the Bethlehem Water Authority. The watershed is situated in areas zoned R-1 and R-2 and surrounded by residential development. The property is located northeast of the Pennsylvania Turnpike.
The application has caused much agitation among residents. Phillip Malitsch and Christopher Mangold, both having property adjoining the watershed, filed action in the matter before the board.
After seven hearings and testimony, Atlantic Wind notified the zoning board in September 2016 that it would no longer participate in hearings held at the Penn Forest fire hall, due to what was described by its attorney as “contentious and emotionally charged” and that the hearings had “become more and more unruly with each passing hearing with frequent interruptions from the attending public.”
Petition for change of venue
Atlantic Wind filed a complaint in the Carbon County Court of Common Pleas requesting a change of venue to a safer location and the appointment of an independent hearing office to replace the zoning board.
At a hearing before Judge Steven Serfass on Atlantic Wind’s complaint, Atlantic Wind argued that it did not believe that the zoning board could reach a fair decision if the members felt threatened.
Attorney Matthew Rapa, representing the zoning board, made the argument that there was no legal precedent which would allow Judge Serfass to take the matter out of the hands of the zoning board.
Serfass agreed with Rapa and ruled in favor of the board. Serfass left it up to the parties to determine where future hearings would be held.
On May 5 Atlantic Wind published a public notice stating that the application had been deemed approved due to the board not scheduling further public hearings within 45 days of Serfass’ order.
On May 22 Malitsch and Mangold filed a notice of appeal against the zoning board and asking the court to find that the “Deemed Decision” did not take place due to the conduct of Atlantic Wind. In addition the appeal included 12 reasons why Atlantic Wind was not entitled to an approved application, including that the “deemed decision” published by Atlantic Wind provides greater relief than was originally advertised by the zoning board in its original notice of hearings.
The appeal also noted that the application was in violation of the ordinance in terms of principal use and that it included two special exceptions at the same time, which is not allowed by the ordinance.
Further the appeal says that Atlantic Wind failed to provide “credible evidence that its application complies with the requirements of the Zoning Ordinance by the submission of sufficient plans, studies or data, to demonstrate compliance, contrary to requirements of the ordinance.”
The appeal also noted that during the hearings it became evident that Atlantic Wind would require “numerous variances from the ordinance and the notice of the hearing did not include the relief that was being sought for any variances but only two special exception use.”
Township enters argument
On June 7, Penn Forest Township filed to intervene in the appeal in support of Malitsch and Mangold. During the June board of supervisors meeting Solicitor Thomas Nanovic, said that although up to this point the supervisors had remained silent on the matter preferring to leave it in the hands of the zoning hearing board, that the board felt that Atlantic Wind was at this point trying to take the matter away from the zoning board.
The zoning board on May 25 also filed a Motion to Strike Notice of Deemed Approval with the court.
In his pleading Rapa noted that the delays in scheduling additional hearings were related to Atlantic Winds attempts to locate a new venue, preferably Carbon County Court Room No. 1.
Rapa’s motion listed a number of emails between the parties upon which the board relied regarding the scheduling of further hearings, including statements by counsel for Atlantic Wind stating that it “would not attend future hearings at the fire hall.”
Having no other option, on May 4 the zoning board scheduled a hearing for May 17 at Penn Forest Volunter Fire Company No. 1.
Atlantic Wind did not attend the hearing.
Testimony concluded and the opposition rested its case. The zoning board rendered a unanimous decision to deny Atlantic Wind’s application.
In response to the appeal filed by Malitsch and Mangold, Serfass has set a hearing at 9 a.m. Aug. 22 in Courtroom No. 3.
In addition there are two outstanding matters:
• Atlantic Wind has petitioned the court to strike down the zoning board’s motion to strike the “Notice of Deemed Decision” on the grounds that the zoning board is a “quasi-judicial” body and lacks standing to bring the action in court.
• Atlantic Wind has also filed a motion to present additional evidence in order to complete the record.
The judge has ordered the parties to file an answer with the court giving reasons why the court should not grant Atlantic Wind’s requests.
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