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Judge hears arguments on first turbine application

Carbon County Court of Common Pleas Judge Steven R. Serfass heard arguments Tuesday to determine if Atlantic Wind should be allowed to build 37 wind turbines in Penn Forest Township.

The application for 525-foot turbines, approved on a technicality, was originally submitted April 2016.

Atlantic Wind has filed two applications for a special exception to the Penn Forest zoning ordinance requesting approval to build a turbine facility on property in the township belonging to the Bethlehem Water Authority.

The second application, for up to 28 nearly 600-foot turbines, was recently denied by the zoning hearing board. The clock is running on the time to appeal that denial. Atlantic Wind only has a few days to file that appeal.

The first application, the one that was the subject on Tuesday’s oral arguments, was approved through a legal loophole.

During the course of the first series of hearings before the Penn Forest Zoning Hearing Board, Atlantic Wind demanded a halt of the proceeding, citing “dangerous and hostile” conditions.

Atlantic Wind took its concerns to Judge Serfass and requested a change to a safer venue. Serfass ruled against Atlantic Wind and left it to the hearing board and Atlantic Wind to determine how and when to proceed with the hearing.

The hearing board’s former attorney, Matthew Rapa, was communicating with Atlantic Wind regarding the scheduling of future meetings when a crucial date for resuming the hearings was missed. As a result, Atlantic Wind’s application was deemed approved by operation of law.

Shortly after the deemed approval, the zoning board denied Atlantic Wind’s application.

Atlantic Wind petitioned the court to appoint an independent counsel to hear rebuttal testimony, which it had not been able to get on the record earlier.

Serfass appointed attorney William G. Schwab to hear the balance of the testimony in support of the first application.

Schwab issued a memorandum to the court recommending that the application be denied. Serfass scheduled the Tuesday hearing to hear arguments on Schwab’s recommendations.

Rebuttal testimony

Opposition attorney Bruce Anders was the first to address the court on Tuesday. Anders’ argument centered around three signification points.

He argued that the bulk of the project is in a residentially zoned district and the ordinance only permits one principal use on property within the district. Documents provided by the water authority and Atlantic Wind, show the current use as “government facility not township owned,” and the use is referenced in three documents, a lease agreement, a conservation easement and a letter to the Federal Energy Regulatory Commission as being “for the production of potable water.”

Anders also argued that Atlantic Wind did not demonstrate that it would comply with the ordinance with regard to a number of technical issues, the most significant of which was noise.

The sound argument is technical, and a number of engineers testified on both sides of the issue during the hearing, but the argument on Tuesday came down to method of measurement, and an average versus a maximum level.

The ordinance clearly states maximum sound level; the application states average.

The last of Anders’ arguments was that according to the application, the operations and safety building would be located in the R2 district. The operations and safety buildings are an integral part of the plan, and as such would not be permitted in the R2 zone. Under the ordinance, if the project is not permitted in the R2 zone – and wind turbines are not – then any accessory to the wind turbines would not be permitted in the R2 zone.

Atlantic Wind response

Attorney Edward Greene responded on behalf of Atlantic Wind. Greene addressed the sound issue first.

“It is undisputed in this case that Atlantic Wind will comply with the sound requirement,” Greene said. “You control the turbine, you control the sound.”

Greene said each turbine is monitored 24 hours per day and that the operators have total control of the operation of the turbine. Atlantic Wind has agreed that it would comply with the technical requirements of the ordinance and that Pennsylvania case law only requires that it “show a willingness to comply at this level of approval.”

As for the principal use argument, Greene’s position was that other than the reservoir itself and the underground pipes taking the water from the watershed, the land is raw, undeveloped land.

He argued that you had to look at the activity that was occurring on the land to determine its use.

Serfass questioned Greene at this point, stating that the land was in such a state because they are in the watershed for the City of Bethlehem.

“Just because you derive a benefit from something it does not mean the property has any activity occurring on it,” Greene responded. “To the whole world it appears it is vacant land. The benefit doesn’t raise to the level of use when there is no activity occurring on the land.”

Greene dismissed the lease, easement and FERC letters as being “private agreements,” having nothing to do with zoning compliance.

“Making sure that the water does not become imperiled does not raise to the level of a use.”

Greene also dismissed the operations and safety building argument, stating that Atlantic Wind had already agreed to move that to a different location.

Bethlehem Authority attorney James Preston defended the single principal use argument by pointing out that the authority’s property consists of 26 individual parcels of land, each independently acquired and deeded and that “single ownership of parcels does not create a merger of lots.”

Preston argued that something occurring on one of those lots does not make it occur on all of the lots within the authority’s control.

Preston also argued that the lease, easement and FERC letter had no bearing on the proceedings because they are “private agreements” between private parties, that the authority had objected repeatedly against the documents being admitted into evidence and that it is from those documents that the term “for the production of potable water” comes.

“These private agreements are being used essentially as an amendment to a zoning ordinance.”

He pointed out that the conservation easement specifically permits the development of wind energy on the property.

Penn Forest solicitor

Penn Forest Township solicitor Thomas Nanovic concluded arguments, addressing the issue of sound and sound management and real estate tax.

“The ordinance has a ‘shall not exceed’ provision,” Nanovic said. “Nowhere does it say average. It’s pretty darn clear that they don’t meet the ordinance.”

Nanovic pointed out that in its brief, Atlantic Wind went so far as to say it did not need to demonstrate compliance, only that they would comply.

“Instead they proved that they wouldn’t comply,” he added.

He said that while Greene was arguing that the turbines would be monitored 24 hours a day, testimony by Atlantic Wind showed that sound was not one of the operations monitored.

Nanovic also did not accept the vacant land argument of Atlantic Wind. Rather, he pointed out that the definition of dominant use or main use is the “purpose for which the land is intended or maintained.”

“The lease agreement says ‘primary use is production of potable water,’ ” Nanovic read. “The easement states ‘kept undeveloped’ for the protection of just that.”

Nanovic also pointed out a project area does not pay real estate taxes because it is held for a “public purpose use.”

“That is a use. Vacant lots in Penn Forest Township pay property taxes,” Nanovic said. “How many times can you refer to the use of the property before it becomes the use of the property?”

Serfass said he would take the information under advisement and issue his ruling.