The Penn Forest Zoning Hearing Board has issued its written denial of the second Special Exception Permit application for Atlantic Wind.
According to the decision filed Jan. 30, the board found that overall, Atlantic Wind failed to produce sufficient evidence and did not show that the project would comply with the Penn Forest Zoning Ordinance.
The application sought to construct 28 nearly 600-foot-tall industrial wind turbines in the township.
The zoning board denied the application at the Dec. 17 meeting and had 45 days to issue a written opinion.
The board concluded that wind turbines would constitute a second principal use in the project area, contrary to the ordinance. The collector substations, circuit switchers and transmission lines were identified as accessory structures which are not permitted in the proposed area.
The hearing board concluded that the permanent meteorological tower was not an accessory structure and required a separate conditional use approval.
The board noted that the application was in direct conflict with a conservation easement that the Bethlehem Water Authority entered into with the Nature Conservancy in May of 2011.
As part of its findings the board had to determine which of the interested parties were in fact legitimate and relevant parties to the matter before the board could determine if specific testimony, exhibits or witnesses could be considered.
The board determined that “all of the objectors are persons aggrieved since they will be able to hear and see the wind turbines from their property …”
It was also found that the Palmerton Hunting and Fishing Club, an adjoining property owner, had standing. The hearing board determined that J. William Fontaine II did not have standing since he did not own property in the township.
According to the application the wind turbine area was located in a residential district. The ordinance permits only one principal use on land located within that district, unless there is a secondary use permitted by the ordinance.
The hearing board concluded that the principal use for the Bethlehem Water Authority property located in the R-1 district, to be the production of potable water.
This determination was grounded in the Bethlehem Authority’s own testimony and documents.
The hearing board found that the authority entered into a Wind License and Wind Energy Lease Agreement with Atlantic Wind in March of 2013 in which the authority references the primary or principal use of the property as for the “production of potable water.”
Further, in a letter to the Federal Regulatory Commission related to the authorities concerns with the PennEast pipeline project, the authority notes that in its efforts to protect the reservoirs, “it owns the headwaters and feeder streams and has placed a significant portion of the property into a conservation agreement.”
The agreement was signed in May 2011 for a term of 60 years. The easement provides for the land to be “utilized for the production of potable water” and that the land would be maintained in an undeveloped state for that purpose.
The stated purpose of the easement was found to be to “ensure that the protected property, which includes the project area, will be retained predominantly in its natural scenic, forested, and open space condition, free of forest fragmentation or additional development.”
The hearing board concluded that the wind project would constitute a second principal use on the authority’s land and therefore was not allowed.
Another area in which the applicant failed to meet the requirements of the zoning ordinance was in noise level. The board found that Atlantic Wind testified to an average project sound level not exceeding 45 dBA at any occupied dwelling was insufficient.
Now that the zoning hearing board has submitted its written findings either party may appeal the decision to the Carbon County Court of Common Pleas.
A previous application for a wind turbine permit by Atlantic Wind is currently before Carbon County Judge Steven Serfass and scheduled for a hearing later on Feb. 26.
That application was deemed approved when the previous hearing board attorney failed to schedule a hearing within the proscribed time limit. That approval has been appealed by the objectors.
Atlantic Wind had requested that an independent referee be appointed to hear additional testimony with regard to the first application. Serfass approved the applicant’s request and appointed attorney William G. Schwab to hear the testimony. Following the testimony Schwab submitted his recommendation to the court that Atlantic Wind’s first application be denied as well.
Shortly after the decision was announced on Dec. 17 Paul Coppelman, spokesman for Atlantic Wind said that the company would need to review the findings before determining what Atlantic Wind’s next action would be.
The Dec. 13 meeting minutes from the Bethlehem Authority includes a statement from the authority’s Executive Director Stephan Repasch in which Repasch states that he expected the project to be turned down by the Penn Forest Zoning Hearing Board. The authority’s solicitor, James Broughal added “that if this does occur, Atlantic Wind will file appeals to eventually get a favorable decision.”
The paragraph also stated that the discussion would be continued in an executive session immediately following the public meeting to discuss “more potentially recent developments.”
The two applications filed by Atlantic Wind are subject to the Penn Forest zoning ordinance that had been in place at the time that the applications for special exceptions were filed. The township has since revised the standards for wind turbines in the township and just Monday evening the new ordinance was adopted.
The new ordinance, consistent with other wind ordinances found in other townships, has much more stringent height and sound requirements than the previous ordinance.
Any new application for a special exception permit would have to comply with the new ordinance.