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Carbon County Judge Steven Serfass on Tuesday heard oral arguments regarding whether or not Atlantic Wind had properly asserted a deemed approval of an application for a special exception that was pending before the Penn Forest Township zoning hearing board.
In April, Atlantic Wind LLC claimed that the Penn Forest Township Zoning Hearing Board had failed to schedule a hearing in a timely manner, allowing the company to assert that its application for a special exception to build up to 37 wind turbines in the township had been deemed approved under a provision of the Municipal Planning Code.
A group of residents quickly filed an appeal. The objectors were joined in their appeal by Penn Forest Township and its zoning hearing board.
Atlantic Wind was joined by the Bethlehem Water Authority, owners of the property on which the turbines would be built.
The hearing began with attorney Bruce Anders quickly laying out the history, stating that Atlantic Wind had filed an application before the township’s zoning hearing board for a special exception to build the wind turbines and that five public hearings had been held, at which the board heard testimony from both Atlantic Wind and from witnesses called by the objectors in the case.
Anders and attorney Theodore Lewis represent objectors A. Christopher Mangold and Philip Malitsch, residents who both have property adjacent to the water authority.
Anders argued that on Sept. 16, 2016, Atlantic Wind sent a letter to the board stating that they would no longer agree to meet at the Penn Forest Volunteer Fire Company No. 1 fire hall because they believed it was dangerous due to threats of violence against its employees and representatives.
In its letter, Atlantic Wind waived the time required under the municipal code.
After the letter
Atlantic Wind followed up its letter by filing a complaint in the Carbon County Court of Common Pleas requesting that the court appoint an independent hearing officer to replace the board and that the hearings be moved to the courthouse.
After a hearing on the matter, Serfass dismissed the complaint, denying Atlantic Wind’s request to appoint a hearing officer but acknowledging that the board did not object to Atlantic Wind’s request to find a safer venue at which to hold the balance of the hearings.
Board solicitor Matthew Rapa notified the applicant that the board was ready to resume the hearings, and as recently as April 3 there is correspondence in which Atlantic Wind indicated that it was still attempting to find alternate meeting space.
On April 26, Atlantic Wind sent a letter to the board notifying it that a deemed approval of its application had taken place due to the board’s failure to hold a hearing within 45 days of Serfass’ ruling.
On May 5, Atlantic Wind published the first of two notices that the application was deemed approved.
“We were prepared to resume the hearing but for the actions of Atlantic Wind,” Anders told Serfass. “All Atlantic Wind had to do was write a letter to the zoning hearing board and say they were ready to resume the hearing.”
Anders stated that instead of notifying the board, Atlantic Wind continued to send emails indicating its desire to find an alternate meeting space and then filed a “gotcha” deemed approval.
Penn Forest Township solicitor Thomas Nanovic did not address the court other than to indicate that the township supported the argument made by Anders and Lewis.
Attorney Jonathan Bradford spoke on behalf of Atlantic Wind.
Bradford argued that Atlantic Wind was relying on an email from Rapa which stated as follows:
“Pursuant to Rule 908(1.2) of the MPC, I believe the next meeting should be held within 45 days of Judge Serfass’s order.”
Both Anders and Rapa had argued that they had relied on the Sept. 16 letter in which Atlantic Wind waived the time requirements for future hearings, claiming that Atlantic Wind would notify the parties when it was prepared to resume hearings.
Rapa said that his letter was just a reminder for Atlantic Wind to “move it along.”
“The case law calls for a zoning hearing board to get clear, written agreements on time extensions,” Bradford said. “The question then becomes, ‘Is there a clear agreement to extend the time period?’
“It is not the job of the applicant to remind the board that they need to schedule a hearing,” Bradford said.
Lewis rebutted Bradford’s argument by pointing out the purpose of the rule setting forth the days in which the hearing must be scheduled.
“What is the purpose of this rule?” Lewis asked. “The rule says that the applicant should not be subjected to delays. The rule is to protect the applicant, in this case Atlantic Wind, from dilatory behavior on the part of the board.
“In this case let’s remember that the applicant was the one who instituted all of the delays.”
Serfass asked Lewis in the case of ambiguity in regard to timing, who the ambiguity should be used against.
“The ambiguity should be used against the applicant,” Lewis said. “They were the cause of the delay. They should not profit from it.”
Lewis argued that permitting the deemed approval to stand would be a hardship on the objectors.
Bradford argued instead that striking the deemed approval would violate the rights of the applicant and would not be a hardship on the objectors because they still have a right to appeal the deemed approval.
Serfass said that he would take the arguments under advisement and would issue his ruling on whether or not to strike the deemed approval.
Other appeals filed
In anticipation that Serfass might strike the deemed approval, Atlantic Wind has already filed a motion with the court requesting that the record be reopened and that they have the opportunity to question any witnesses who testified at the final hearing and also to present rebuttal witnesses.
Atlantic Wind has also filed an appeal of the board’s denial of its application. Both actions have been filed in the Carbon County Court of Common Pleas.
Atlantic Wind has also filed an appeal of Serfass’ February ruling denying the appointment of an independent hearing officer to the Commonwealth Court.
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