Court decision denying Iberdrola permit upheld

This important ruling by a panel of three Commonwealth of Pennsylvania Court judges reverses a county judge's order that allowed PPM Atlantic Renewable (now Iberdrola Renewables) to construct the South Chestnut Windpower Project in southern Fayette County, PA. The project consists of 24 turbines, each standing 425 feet tall. Ths week, the Pennsylvania Supreme Court affirmed the reversal. The decision, issued on May 20, 2014, upheld minimum setbacks from all property lines, not just participating landowners involved in the project (eliminating participating vs non-participating property owners), due to safety issues.  It also upheld that sound studies and bat studies must be completed to allow the project to be built. Despite the appeal process continuing, Iberdrola went ahead and erected the turbines but the project was built without the proper permits and approximately 14-15 of the turbines are out of compliance with the setback restrictions. The facts in this case as affirmed by the Supreme Court are provided below. The three court decisions issued by the lower courts and the Supreme Court can be accessed by clicking the links on this page. 

This case returns to us following our Supreme Court’s remand in PPM Atlantic Renewable v. Fayette County Zoning Hearing Board, 81 A.3d 896 (Pa. 2013) (PPM Atlantic Renewable II). Thomas J. Bozek (Objector) asks whether the Court of Common Pleas of Fayette County (trial court) erred in reversing a decision of the Fayette County Zoning Hearing Board (ZHB). After an initial remand to the ZHB, the trial court granted PPM Atlantic Renewable’s (Applicant) requests for numerous special exceptions and dimensional variances from setback requirements, subject to certain modified conditions, so as to allow Applicant to construct its proposed wind energy project, comprised of 24 wind turbines. Objector appealed both the trial court’s remand decision and its subsequent decision granting Applicant’s requests for relief. Upon review, we reverse the trial court’s order and reinstate the ZHB’s decision after remand.

I. Factual and Procedural Background

In September 2007, Applicant filed numerous applications with the ZHB requesting special exceptions and dimensional variances to permit construction of a wind power facility known as the South Chestnut Windpower Project in southern Fayette County. The proposed project spans approximately three-and-a-half miles of the Chestnut Ridge in Wharton, Georges, and Springhill Townships. 

In total, 22 of the 24 currently proposed wind turbines are located in Georges and Springhill Townships. Because neither of those townships have their own zoning ordinances, the proposed turbines that lie within those townships are subject to the Fayette County Zoning Ordinance (zoning ordinance).

The zoning ordinance in existence when Applicant submitted its requests permitted wind turbines by special exception in the County’s A-1 Agricultural-Rural Zoning Districts. See Section 1000-203(B) of the zoning ordinance, Table 1 (Non-residential).

In addition, Section 1000-876 of the ordinance contains 13 criteria that an applicant must satisfy in order to obtain a special exception for a windmill/wind turbine. Relevant here, one criterion requires a minimum setback from any lot line of 100% of the turbine’s height. Section 1000-876(D) of the zoning ordinance. Also, Section 1000-876(N) of the zoning ordinance grants the ZHB authority to attach conditions on the grant of a special exception for a windmill/wind turbine in order to protect the public health, safety and welfare, including the right to impose increased setbacks. 

The ZHB held four hearings on Applicant’s requests, during which it heard testimony as to Applicant’s reasons for choosing the Chestnut Ridge locations, evidence regarding the various advantages and disadvantages of wind power, and public comment both in favor of and in opposition to Applicant’s proposed facility. Objector, who owns land adjacent to the proposed facility, appeared at the ZHB hearings in opposition to Applicant’s proposal. 

Thereafter, the ZHB issued a decision in which it denied Applicant’s requests in their entirety.

Applicant appealed to the trial court. Applicant’s appeal was assigned to Judge Ralph C. Warman (first trial judge), who ultimately remanded to the ZHB. The first trial judge ordered the ZHB, based on the existing record, to consider and grant each special exception as required by law and to impose any condition it deemed fit to protect the health, safety and welfare of the community. The first trial judge also directed the ZHB to properly consider Applicant’s requests for dimensional variances from the zoning ordinance’s height and setback requirements.

Thereafter, the ZHB issued a second decision in which it: (1) granted (as de minimis) Applicant’s request for variances from the height restrictions for all 22 turbines; (2) denied Applicant’s requests for variances from the setback requirements for eight of the 22 towers; (3) denied Applicant’s special exception requests for these eight towers based on the denial of the requested setback variances; and, (4) granted Applicant’s special exception requests for the remaining turbines, subject to seven conditions. Of import here, one attached condition requires Applicant to increase the minimum setbacks for its turbines to 500 feet from roadways and 425 from all property lines. 

Applicant again appealed to the trial court, asserting, among other things, the ZHB erred in: denying its requests for dimensional variances from the setback requirements for the eight turbines; denying the corresponding eight special exceptions; and, imposing unreasonable conditions. The trial court, through Judge Steve P. Leskinen (second trial judge), ultimately agreed with the majority of Applicant’s contentions. 

Specifically, the trial court determined the ZHB erred in denying Applicant’s request for variances from the zoning ordinance’s setback requirements. The trial court determined the requested variances were dimensional in nature and, therefore, the unnecessary hardship criterion was relaxed. The trial court determined the location in which Applicant seeks to construct its turbines consists of exceptional topographical or other unique conditions, and Applicant would suffer economic detriment absent the grant of the variances. The trial court also determined Applicant’s proposal was consistent with the characteristics of the surrounding neighborhood, and the ZHB erred in concluding denial of the variances was proper based on the risk of “ice throw[s]” from the turbine blades. Tr. Ct., Slip Op., 6/18/10, at 15.

Based on its grant of the dimensional variances from the setback requirements, the trial court determined the ZHB erred in denying Applicant’s request for special exceptions for the remaining eight towers as Applicant satisfied all other special exception criteria. 

Finally, as to Applicant’s challenge to five of the seven conditions attached to the grant of the special exceptions, the trial court struck three of these conditions. Notably, the trial court modified the ZHB’s condition regarding increased setback requirements. Specifically, the trial court modified that condition as it relates to all 22 turbines to impose: “a setback requirement of 500 feet from the center of the turbine base to the nearest edge of the right-of-way of any public road,” and “a setback requirement of 425 feet from the center of the turbine base to the line of any property not covered by a recorded lease or other appropriate conveyance to [Applicant] that specifically references the risk of ice throws.” Tr. Ct., Slip Op., 6/18/10 at 34 (emphasis added). The trial court also imposed a requirement of “reasonable notice to other persons who might forseeably be within such increased setbacks. Such notice could be provided by posting conspicuous signage at 100’ intervals around the perimeter of the property at risk throughout the relevant winter season.” Id.

After entry of the trial court’s order sustaining Applicant’s land use appeal, but prior to Objector’s appeal to this Court, Applicant filed a motion for bond with the trial court. Objector then filed two notices of appeal with this Court. The first notice of appeal sought review of the second trial judge’s order sustaining Applicant’s land use appeal. The second notice of appeal sought review of the first trial judge’s remand order, which was made final by the second trial judge’s subsequent order.

Thereafter, the trial court held a hearing on Applicant’s motion for bond. At the conclusion of the hearing, the trial court granted Applicant’s motion, and ordered Objector to file a bond as a condition of continuing with his appeal to this Court pursuant to Section 1003-A(d) of the Pennsylvania Municipalities Planning Code (MPC).3  Reproduced Record (R.R.) at 48a.

Before this Court, Objector filed a motion to consolidate the appeals from the two trial court orders on the basis the appeals are actually the same case. Applicant subsequently filed a motion to quash the appeals, asserting Objector neither posted the bond ordered by the trial court nor appealed the bond order. Ultimately, this Court granted Applicant’s motion to quash Objector’s appeal based on Objector’s failure to comply with or appeal the trial court’s bond order. See PPM Atlantic Renewable v. Fayette Cnty. Zoning Hearing Bd., 22 A.3d 253 (Pa. Cmwlth. 2011), rev’d, PPM Atlantic Renewable II.

On further appeal, however, our Supreme Court granted Objector’s petition for allowance of appeal and, upon review, it reversed this Court’s order. See PPM Atlantic Renewable II. The Court held that, where, as here, the developer is the appellant before the common pleas court, Section 1003-A(d) of the MPC does not authorize the common pleas court to require an objector to post a bond in connection with the objector’s appeal to the Commonwealth Court of a final trial court order. Id. As a result, the Court determined the trial court’s bond order here was void ab initio, and as such, a legal nullity. Id. Accordingly, the Supreme Court remanded for this Court to resolve Objector’s appeal on the merits. Id

PPM Atlantic Renewable Appeal 2 (appeals court)

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PPM Atlantic Renewable Appeal 3 (PA Supreme Court)

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Ppm Engery Zhb Decision

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AUG 23 2015
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