The Tioga Preservation Group's land use appeal of the Tioga County Planning Commission's decision to grant conditional approval for a wind farm project has been denied, opening the door for the construction of 124 wind turbines in Tioga and Bradford counties.

On Aug. 8, Tioga County Court of Common Pleas President Judge Robert E. Dalton Jr. issued an order denying the appeal of the group, and upheld the planning commission's preliminary conditional approval of the land-use application made by AES Armenia Mountain Wind LLC, according to court documents.

AES, based in Arlington, Va., plans to construct 73 wind turbines in Sullivan and Ward townships in Tioga County and 52 turbines in Armenia Township, Bradford County.

When complete, it will be the largest wind-energy facility in Pennsylvania, producing about 150-megawatts of electricity, or enough to service 47,000 homes, according to AES officials.

"We are glad that the court has issued the decision in our favor and we look forward to moving forward and starting construction," said Robert J. White, the vice president of AES Armenia Mountain Wind.

The company hopes to begin construction this fall and begin commercial operation in the fall of 2009, he said.

White said the company now has fulfilled all of its needed permits and approvals, except one condition made by the planning commission to provide survey drawings of the project area.

"The drawings will show the company's compliance with property setbacks that we agreed to," he said, adding the county expects "to clear that condition by the end of September."

The setbacks are 1.1 times the turbine heights from roads and non-participating property boundaries and five times the hub height from non-participating residents.

"There were some residents concerned about it and in Tioga County there is no ordinance requiring a setback, but we had agreed with the county's guidelines to build in those type of setbacks," he said.

On Jan. 17, Tioga Preservation Group filed a land-use appeal asking the court to reverse the granting of preliminary approval by the planning commission to the preliminary land development plan of AES.

The court had to decide whether the planning commission made an error of law or abused its discretion, or whether its conclusions were supported by arbitrary and capricious factual findings, the court opinion notes.

The appellants' first argument that because AES does not own any of the properties and because AES intends to lease them, AES doesn't qualify as an applicant under the Municipalities Planning Code (MPC) was found to be without merit, the court found.

The court found that AES does meet the definition of landowner as the company holds options to lease the properties and has the authority under the leases to exercise the rights of the landowners.

The group also argued that the planning commission erred in failing to require AES to submit a subdivision application as required by Section 507 of the municipal planning code.

The court, however, also found this argument without merit. The order reads that "AES has repeatedly advised the Planning Commission that it intends to lease parcels in their entirety; therefore, no subdivision application is required under the code."

In addition, the court found that a waiver request by AES was properly applied for, justified and considered and approved by the planning commission.

An ordinance requirement had called for each of the turbines to be screened and/or fenced to their full height of 200 feet.

However, AES successfully argued to the planning commission that this requirement was not feasible nor reasonable due to their height.

The company argued that the turbines are securely locked and pose no danger to the public, and it wasn't necessary to fence the entire height of the turbines.

AES has agreed to fence the substation building structure.