Carbon County wind farm fight has gotten too ugly, developer tells court

Vitriol over the wind turbine farm near Bethlehem's water supply goes before a judge.

JIM THORPE — An anonymous letter mailed to the elderly parents of a wind farm executive. A zoning hearing board member's email declaring, "This madness has to stop." A reference to the fatal Ross Township shooting on Facebook.

Atlantic Wind alleges it all unfolded this year behind the scenes of a raucous public hearing over whether it can build a wind turbine farm near Bethlehem's water supply in Carbon County.

Now, Atlantic Wind wants a judge to decide whether the vitriol has reached a point where the Penn Forest Township Zoning Hearing Board can impartially decide whether the 37-turbine wind farm meets the legal benchmarks of a special exception.

Carbon County Judge Steven R. Serfass on Tuesday began wading through the legal issues of the company's request that an independent zoning hearing officer be appointed. The company also wants the hearing moved to the courthouse in Jim Thorpe, a more secure location than the fire hall where it had been held.

The case pits the rights of Atlantic Wind, a subsidiary of Avangrid Renewables, to have a fair and safe hearing against the township's authority over local land-use matters.

Suspended between those interests are hundreds of residents, property owners and activists who have packed five zoning hearings since May, provided more than a dozen hours of testimony and hired professionals to lay out their cases.

At stake for the Bethlehem Authority, the financial arm of the city's water operations, is about $100,000 a year in revenue from Avangrid should the project be built on about 260 acres of its land north and south of Hatchery Road.

The zoners' solicitor, Matthew Rapa, said the township has no problem with moving the hearing to the courthouse, but he asked the judge to leave the decision on the special exception to the Zoning Hearing Board. He argued that Pennsylvania's Municipal Planning Code gives the zoners "exclusive jurisdiction" to "render final adjudication" in matters of special exceptions.

He argued the planning code gives the board — not the applicant — the power to request an independent hearing officer, but the board has not indicated its impartiality has been compromised. He said the issue of perceived threats compromising the zoners' impartiality has never been raised at a zoning hearing before the complaint was filed in county court.

"They simply allege they have Facebook posts that the [zoning] board has nothing to do with," Rapa said, adding that's "not enough" to appoint an independent hearing officer.

He asked the judge to let the zoning board decide and then, if Atlantic Wind has issues, it can appeal.

But Atlantic Wind argues that even if it appealed, the best it could hope for is that a judge sends it back to the Zoning Hearing Board, where Atlantic Wind officials will be further subjected to unsafe and unfair conditions. In addition, that appeal won't contain a record of the intimidation that Atlantic Wind alleges happened behind the scenes, argued attorney Jonathan Bradbard, representing Atlantic Wind.

The township meetings have "devolved into a forum of intimidation" and the zoners have been "tainted" by the threats, Bradbard said. He argued no one could be neutral, impartial and detached, given the circumstances.

In court papers, Atlantic Wind accuses several of its critics in May of using Facebook to discuss driving to an Atlantic Wind executive's home to harass him and his neighbors. Bradbard said "a not so veiled threat" was sent to a company executive's parents and brother, all of whom live out of state.

Atlantic Wind provided one of the letters in a court filing:

"...We have ex-military and many avid hunters in our area who will have their lives and property affected if this project goes through. I for one will not forget who is attempting to do this to my family and my neighbors. Take care for now. A concerned citizen from Jim Thorpe, PA. PUT THEM WHERE THEY ARE NOT SO NEAR TO DEVELOPMENTS!!!"

Bradbard said the company had to provide its own security for the meetings. Some have observed guns at the meetings. Atlantic Wind's videographer refused to attend the meetings without security, Bradbard said.

Bradbard alluded to a July 18 Facebook post in which someone wrote: "You want Truth. Bring your security detail next meeting. Your gonna to need him." That prompted Audrey Wargo, the zoning chairwoman, to send an email entitled "perceived threat" and suggested state police be called, according to Atlantic Wind's court filing.

"This madness has to stop," she said in the email that Atlantic Wind attached in court filings.

Bradbard said some of Atlantic Wind's supporters are staying away from the hearings out of fear, subverting Atlantic Wind's right to due process.

Then on Sept. 15, a Facebook post referenced the 2013 Ross Township mass shooting, which left three people dead and several others wounded during a supervisors meeting. Rockne Newell, the shooter, had feuded with the township for years about his property.

One commenter, according to Atlantic Wind's court filing, said, "Well, when you push someone till they have no where to go and then take what they own ... well ... not defending him but look what they did to him over a period of time," according to the posting included with Atlantic Wind's court complaint.

About 30 people filled Serfass' courtroom to capacity and quietly listened to the legal arguments. Among them was Joe McCormick, a Towamensing Township resident who said he lives a mile from the proposed project.

After the hearing, McCormick said he objected to the image Atlantic Wind was painting of the residents, saying the residents are "vocal but not dangerous."

"They're not a threat. They're elderly people. ... I took my kids to these meetings," McCormick said. "The bottom line is that these windmills are going to ruin our way of life here. We live in an area supported by tourism, not big industry."

The turbine project, he said, will jeopardize that, and that's why people get emotional.

Serfass said he will take the lawyers' arguments under advisement before ruling on the township's preliminary objections to Atlantic Wind's request. The turbine hearing has been paused until the judge makes a decision.