An appeals court judge has ruled that Penn Forest Township incorrectly rejected plans for a wind farm on watershed land owned by the Bethlehem Authority.
Developer Atlantic Wind and the authority appealed a May 2020 decision in Carbon County Court of Common Pleas. The court had upheld the Penn Forest Township Zoning Hearing Board’s January 2019 decision to reject the application for 28 nearly 600-foot-tall wind turbines.
After hearing arguments in the case last month, Commonwealth Court Judge Anne E. Covey issued a decision Wednesday.
Covey said that the zoning hearing board did not show enough evidence when it ruled that the project did not meet the noise limits in the township zoning ordinance.
She said the zoning hearing board must reconsider whether the project meets the noise ordinance and gave them specific requirements.
The zoners and Atlantic Wind disagreed over how to predict the amount of noise that the turbines would create. Two experts for Atlantic Wind said that the turbines would meet the township’s 45db noise limit for nearby properties.
The zoners said that the experts used a method, known as Leq, which averaged noise levels over a period of time. They said that modeling the sound over a period of time would not prove that the turbines meet the ordinance, which says noise levels are “not to exceed 45db.”
The zoners wanted Atlantic Wind to use a different standard – known as Lmax – which measures instantaneous noise levels.
The judge agreed with Atlantic Wind that the Lmax standard is not a reliable way of predicting turbine sound levels.
She ordered that the zoners reconsider the case, using the Leq standard to decide if the project meets the noise limits.
The judge also sided with Atlantic Wind on two other issues raised in the case. The zoners had found that the wind turbines would be a second principal use of the property, in addition to drinking water production. The judge reversed that decision, and said there wasn’t enough evidence for the board to find that there was an existing use of the property.
She further noted that the authority’s land is made up of many different parcels, and the zoners incorrectly lumped them as one property being proposed for two uses.
The third issue was over a “meteorological tower” which was proposed with the wind turbine project. The zoners said that would be yet another use of the property. The judge said that the township’s own zoning officer testified that the tower was integral to the wind farm proposal.
Proposals for wind turbines on the Bethlehem Authority watershed property were first proposed in April 2016.
The initial proposal, for 37 turbines, gave way to the current proposal for 28 larger turbines, located further away from developments like Towamensing Trails.
Residents banded together against the proposal and hired an attorney to present arguments to the township zoning board.
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