December 27, 2019
Pennsylvania

Energy firm awaits decision on civil suit

Vicki Terwilliger | Republican Herald | December 27, 2019 | www.republicanherald.com

The energy firm proposing a wind turbine farm in Schuylkill County is awaiting a decision on its civil suit filed against the county planning and zoning commission.

Clean Air Generation LLC, of Abington Township, along with Anthracite Ridge LLC, of Wilmington, Delaware, filed the complaint in Schuylkill County Court in October.

CAG owns 12,672 acres in Tremont, Frailey, Porter and Hegins townships under a lease agreement with Rausch Creek Land LP and Rausch Creek Industrial Park LP. The company wants to construct up to 80 wind turbines on those parcels.

The commission administers the county zoning ordinance in Tremont, Frailey and Porter townships, while Hegins has its own zoning hearing board. CAG and Anthracite Ridge, through its consultant, EarthRes, submitted a zoning permit application to the county commission.

“The commission has a legal obligation to review the zoning permit application subject to the provisions of the Schuylkill County Zoning Ordinance, which were in effect on Sept. 11, 2019, the date the zoning permit application was filed.

“The commission’s refusal to accept and act on the zoning permit application leaves plaintiffs without adequate legal remedy,” the complaint states. It was submitted by Charles B. Haws, of the Barley Snyder law firm, Reading.

The complaint argues, in part, that the county zoning ordinance presently allows wind turbines as a permitted use in the I-C (industrial/commercial) and C-M (conservation/mining) districts. As such, the county commissioners “cannot declare the zoning ordinance substantively invalid regarding wind turbines,” because their use is provided for in the county zoning ordinance, according to the complaint.

“My client is willing to work with the county commissioners, the planning commission, the municipalities in which the project is proposed and with other interested parties in order to develop a project that will be mutually beneficial,” Haws wrote in a Sept. 12 correspondence with Glenn T. Roth Jr., first assistant solicitor for the county.

In response, Roth said in a letter dated Sept. 17, “As you are aware, the Schuylkill County Board of Commissioners, at its work session on Sept. 4, 2019, exercised their right to declare portions of the Schuylkill County Zoning Ordinance substantively invalid pursuant to Section 609.2 of the Pennsylvania Municipalities Planning Code, Act 247, as amended (the MPC).”

In his letter, Roth explained that he was returning to Haws the unfiled correspondence dated Sept. 11, the application and a check for $7,350 that was delivered to the attention of Kyle Kehoe, zoning officer with the county planning and zoning office.

“We are returning this to you as the filing may not be accepted in accordance with the resolution adopted by the Schuylkill County Board of Commissioners,” Roth’s letter stated.

The complaint, meanwhile, asks the court to enter judgment against the commission and direct it to review the zoning permit application, as required by the Pennsylvania Municipalities Code, applying the zoning ordinance in effect as of Sept. 11, 2019.

The county is working on a curative amendment to its zoning ordinance that addresses not only wind turbines, but also natural gas compressor stations, and dispensing medical marijuana. The ordinance would have no effect on existing wind turbines, or affect any wind turbine allowed on a property as an accessory use.

Meanwhile, the Hegins Township Zoning Hearing board on Dec. 16 unanimously denied a use variance for CAG’s proposed project. Hegins Township supervisors will meet at 6 p.m. Thursday, Jan. 23, to consider a curative amendment to the township zoning ordinance that will address where wind energy projects are permitted, their installation and construction of facilities in the township.