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Carbon County Court of Common Pleas Judge Steven R. Serfass has denied a land use appeal filed by Atlantic Wind LLC and the Bethlehem Authority, seeking to erect a wind turbine project in Penn Forest Township.
This was the second of two proposed wind turbine projects to be decided before the court. In April, Serfass granted the appeal of two Penn Forest Township property owners who sought to stop the construction of 37 525-foot-tall wind turbines in the township. The second project had proposed 28 nearly 600-foot-tall turbines.
In a memorandum opinion and subsequent order of court signed by the judge on May 29, he affirmed the decision rendered by the township’s zoning hearing board on Jan. 30, 2019, which denied a special exception permit for the project.
The judge’s rule followed a 15-page opinion in which he wrote that the zoning hearing board did not commit an error of law or abuse of its discretion in finding that Atlantic Wind failed to demonstrate compliance with the township’s zoning ordinance, nor did it commit an error of law nor abuse of its discretion in finding the turbine project would constitute a second principal use within a residential district of the Penn Forest Zoning Ordinance.
Sides differed on sound measurement
In the first instance, Serfass said he “would not disturb” the zoning hearing board’s determination as to the credibility of witnesses appearing before it in an argument on sound measurement determinations.
In that argument, Atlantic Wind’s testimony tried to persuade the zoning board the project would be in compliance with the township’s zoning ordinance that provides “the audible sound from the wind turbines shall not exceed 45 weighted decibels, as measured at the exterior of an occupied dwelling on another lot, unless a written waiver is provided by the owner of such building.”
Both sides had presented witnesses at the zoning hearing to defend their positions. Mark Bastasch, an acoustical engineer, told the board he modeled the sound level of the project using the LEQ standard of sound measurement, which measures the average sound level over time. He said the measurement has a variance of 3-11 decibels and may include sounds greater than the average value, testifying the project sound level would not exceed 45 A-weighted decibels at the exterior of an occupied dwelling under the method he used.
But opponents to the project called their own acoustical and noise measurement expert, Robert Rand, who disagreed with Bastasch and said the sound level would exceed the 45-decibel A-weighted level, to which Serfass wrote “the ZHB determined that the LEQ method of sound measurement was not responsive to the zoning’s ordinance’s requirement that sound shall not exceed 45 A-weighted decibels. The zoning hearing board found that the LMAX standard of sound measurement, which measures the instantaneous maximum sound at any given time, should be used because it matches the plain-language meaning of the zoning ordinance’s requirement that sound from the wind turbine shall not exceed 45 A-weighted decibels under the LEQ method at any occupied dwelling was not, in the ZHB’s view, responsive to the ordinance’s requirement that the sound shall not exceed a maximum of 45 A-weighted decibels.”
Parties disagreed on use of land
In the second instance, Serfass said he would not overturn the zoning board’s ruling that the Bethlehem Authority’s use of the land in question for the Penn Forest Reservoir watershed constitutes one principal use of the land. In this issue, the township’s ordinance provides a lot within a residential district shall not include more than one principal use, the opinion notes.
Serfass said the record shows evidence was presented to the zoning board that the authority entered a “term conservation easement” with the Nature Conservancy that provides the project area is utilized for the production of potable water and kept in an undeveloped state for that purpose.
His opinion says the zoning board’s interpretation that the authority’s use of the land was supported by substantial evidence and that the board was correct in its ruling that the wind turbine project would constitute a second principal use in violation of the zoning ordinance.
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