Carbon County Judge Steven R. Serfass has upheld the legal technicality that led to a deemed approval of Atlantic Wind’s application for a special exception permit to construct and operate a wind turbine farm in Penn Forest Township.
Atlantic Wind hopes to construct and operate up to 37 wind turbines on land it has leased from the Bethlehem Water Authority in Penn Forest Township. The plan has met with a good deal of opposition from township residents.
In his opinion, issued on Dec. 29, Serfass dismisses the request of the Penn Forest Township Zoning Hearing Board to join in a case filed by township residents Phillip C. Malitsch and Christopher Mangold appealing the deemed approval.
A deemed approval is an approval of the permit application which came about by operation of law. In other words, based on a series of events, the permit was automatically approved.
In this case the judge found that it was the hearing board’s failure to schedule a hearing within a 45-day time period that allowed Atlantic Wind to take advantage of the lapse and consider its application approved.
The ruling does not end the appeal of Malitsch and Mangold, but puts an end to the hearing board’s involvement in the matter at this point.
The approval resulted from Atlantic Wind’s initial refusal to continue hearings before the zoning hearing board due to safety concerns related to the venue.
The meetings were being held at the Penn Forest Volunteer Fire Company No. 1 fire hall in order to accommodate the large number of people interested in attending.
During the course of the five hearings that took place, the attorney for Atlantic Wind and its employees said they became concerned for their safety.
Atlantic Wind sent a letter in September 2016 to the hearing board citing its concerns and noting that the company would no longer attend the hearings.
The company followed up its letter by filing a complaint in Carbon County Court of Common Pleas demanding the court appoint an independent hearing officer to replace the hearing board and set a safer venue.
In February 2017, after oral arguments, Serfass ruled in favor of the Zoning Hearing Board and denied Atlantic Wind’s request to replace the board.
In addition, while Serfass noted that the hearing board did not oppose the change to a safer venue, he left it up to the parties to make the arrangements.
It was during the course of the search for a different place to hold the hearings that the deemed approval was taken.
In his opinion Serfass rejected the board’s argument that Atlantic Wind waived all time requirements under the Municipal Planning Code, instead stating that the “onus was on defendant (hearing board) to schedule and convene a hearing within the statutory time allotment regardless of either the outcome of those attempts or Atlantic Wind’s continued objections after those failed attempts.”
“Having failed to do so and having also failed to obtain Atlantic Wind’s consent to an extension of the 45-day hearing requirement, defendant must now face the harsh consequences of a deemed approval,” Serfass concluded.
Attempt to appeal
The opinion also addresses the zoning hearing board’s attempt to appeal the approval.
In his ruling, Serfass notes that by attempting to intervene in Mangold and Malitsch’s appeal, the hearing board is “attempting to act as a party opposing Atlantic Wind’s zoning application, when they are in fact a quasi-judicial body tasked with objectively deciding the outcome of zoning applications.”
“The deemed approval is the board’s decision by operation of law that resulted from its own delay,” Serfass found.
In essence that board would be successfully appealing itself if it were permitted to continue to be a part of the case at hand.
Matthew Rapa, attorney for the zoning board, responded to Serfass’ ruling.
“Obviously we are disappointed with the ruling,” said Rapa. “I will be meeting with the board this week to discuss our options and to decide if we will be filing an appeal to the decision.”
Rapa added that regardless of the hearing board’s plans, nothing in the judge’s ruling will affect Mangold and Malitsch’s appeal.
Craig Poff, director of business development for Avangrid Renewables, Atlantic Wind’s parent company, expressed his pleasure at the ruling.
“We are pleased the court ruled in favor of the significant number of stakeholder and community groups who still hope to bring this tremendous economic development opportunity to the area,” Poff said.
The Penn Forest Township supervisors have remained silent with regard to the Atlantic Wind application and project. Township solicitor Thomas Nanovic advised the board publicly not to discuss the matter since at some point the project may come before them for approval and it would be best if they withheld any comment until they had “all of the facts.”
In June the township filed a motion to intervene in the appeal.
“We intervened for the sole purpose of keeping up to speed on what was happening and keeping the board in the loop,” Nanovic said.
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