The acrimonious debate over whether turbines should rise from the ridges surrounding Bethlehem’s water supply has generated broad questions about clean energy, wildlife and property rights.
But whether the project moves forward may depend on how Carbon County Judge Steven R. Serfass answers a more narrow question: whether the Penn Forest Zoning Hearing Board blew a legal deadline to decide the case.
The applicant, Atlantic Wind, argues its zoning request for a special exception has “deemed approval” because the township failed to resume the hearing within 45 days of a court decision.
But attorneys for two residents challenging the approval called the argument “gamesmanship” that does meet the intent or letter of the law.
At issue is the hearing that began in May 2016 over whether Atlantic Wind, a subsidiary of Avangrid Renewables, can build 37 turbines on 250 acres north and south of Hatchery Road in Penn Forest. Atlantic Wind has an agreement with the landowners, the Bethlehem Authority.
The hearings, which packed fire hall to capacity over several months, got so heated that Atlantic Wind sought to get the hearing moved to a safer location at the courthouse and asked that the an independent examiner be appointed to hear the case.
Atlantic Wind and the township agreed to put the hearing on hold until the legal matter was decided by Serfass. Serfass on Feb. 17 denied the independent examiner appointment, included a footnote that the meeting could be moved if arrangements could be made and lifted a stay on the zoning hearing.
Atlantic Wind attorney Jonathan Bradbard argued that decision started the clock ticking to resume. The Municipal Planning Code requires hearings be resumed within previous hearing unless the applicant agrees to a delays.
When the township failed to resume the hearing within 45 days of the stay being lifted, Atlantic Wind indicated it had deemed approval and provided written notice in a local newspaper.
The Zoning Hearing Board then resumed the hearing May 17. The application was denied at the meeting. Atlantic Wind did not attend the meaning because the company argued the project had been deemed approved because of the missed deadline.
But that approval isn’t so clear to attorneys Bruce Anders and Theodore Lewis. They represent home owners Philip C. Malitsch and Christopher Mangold who are challenging the deemed approval.
Anders argued the delays were due to the conduct of Atlantic Wind not the Zoning Hearing Board. Atlantic Wind indicated in writing it would not attend hearings held at the fire hall for fear of their safety and were the cause of the delay.
Atlantic Wind also emailed the township it had been trying to secure a location at the courthouse in the weeks leading up to its declaration of having deemed approval.
At no time, the attorneys argued, did Atlantic Wind reference the looming deadline or request a the hearing resume by a certain date until it was too late.
He said the situation was analogous to a “remand situation” where an applicant just had to send a letter to continue with the hearing after the Feb. 17 court decision.
Lewis asked the judge for “justice” and not allow Atlantic Wind wrest the decision from the zoners, which held marathon meetings over several months to take testimony from Atlantic Wind, professionals and concerned residents.
Bradbard rejected the suggestion there was any “scheme or underhanded play” on his client’s part.
He said it was up to the the Zoning Hearing Board to schedule the hearing, and the board failed. He said case law indicates that the 45-day deadline must be met unless there is a clear record that the applicant waives it and for how long. Without a clear extension, the rights of property owners chip away.
“At no time did we state we are extending the 45-day period,” he told the judge.
He said the only agreement for a delay occurred in the fall before and that was limited to the time it took Serfass to decide the matter on venue and an independent examiner.
Atlantic Wind’s case was supported at the hearing by attorney James Preston, who represents the Bethlehem Authority. The authority, the financial arm of the city’s water business, could make $100,000 a year, if the project is approved.
The residents’ arguments were supported by township Solicitor Thomas Nanovic and zoning solicitor Matthew Rapa.
Rapa also filed a separate motion to strike the deemed approval. Bradbard argued the Zoning Hearing Board doesn’t have standing to file that motion.
Serfass said he would take the arguments under advisement.
It is just one of several related matters before the court. Malitsch and Mangold have also filed another court appeal, arguing that the approval is not supported by the facts presented at the Zoning Hearing Board.
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