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Penn Forest Township prevails against Atlantic Wind (Iberdrola)

Atlantic Wind (aka Iberdrola) filed a complaint on September 26, 2016 (amended on November 7, 2016) before the Pennsylvania Carbon County Court of Common Pleas arguing that the venue to hear its Bethlehem Watershed wind turbine proposal was unsafe and that the location  should be changed and an independent hearing officer appointed. Atlantic Wind alleged that threats of violence by the public impacted the company's ability to receive a fair hearing before the Township zoning board. Atlantic Wind also requested an injunction barring the zoning board from holding further hearings until the court could rule. In this ruling the Court of Common Pleas ruled against Atlantic Wind. The full order can be accessed by clicking the links on this page. A portion of the order is provided below.  

Excerpt of Ruling

Defendant [the Township] argues that this Court lacks equity jurisdiction because Plaintiff has failed to utilize and exhaust an exclusive statutory remedy set forth in the Pennsylvania Municipalities Planning Code. 53 P.S. §10101-11202 (hereinafter "MPC" ) . Plaintiff counters that the ZHB's inability or unwillingness to provide a safe hearing venue conducive to securing its rights to procedural due process requires this Court to exercise equity jurisdiction in order to ensure compliance with Plaintiff's constitutional rights.

We begin our analysis of this issue with a recognition that section 909.1(a) (6) of the MPC provides that the zoning hearing board shall have exclusive jurisdiction to hear and render final adjudications in matters involving special exceptions under the zoning ordinance. 53 P. S. §10909 .1 (a) (6). Moreover, the procedures for a land use appeal set forth in Article X-A of the MPC constitute "the exclusive mode for securing review of any decision rendered pursuant to Article IX (Zoning Hearing Board and other Administrative Proceedings) or deemed to have been made under this act." 53 P.S. §11001-A. This would include all decisions made in the course of special exception hearings. 

It is to be noted that since May 12, 2016, a total of five (5) public hearings on Plaintiff's special exception application have been held before the ZHB1  While counsel informed the Court at oral argument that each of the public hearings has lasted several hours and that the record is nearly complete, to date, the record remains open and no decision has been rendered by the ZHB.

The Commonwealth Court of Pennsylvania has long recognized that interference with the actions of a municipal body is to be undertaken only in extremely limited circumstances.

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In this matter, the exclusive mode of review for a special exception application is before the ZHB. Section 908(2) of the MPC provides that the "hearings shall be conducted by the board or the board may appoint any member or an independent attorney as a hearing officer." 53 P.S. §10908(2), emphasis added. While Atlantic Wind filed its special exception application with the ZHB, it has failed to exhaust this exclusive statutory remedy claiming that the remedy is not adequate. 

In its amended complaint, Plaintiff asserts that the hearing venue and threats of violence have tainted the proceedings and the ZHB itself. With regard to the fire hall, Plaintiff argues that it " ... should not be forced to continue to put forth its "[a] pplication through witnesses and engage in cross-examination of the opposition in an unsafe setting." Plaintiff maintains that "[t]he risk of harm would be greatly reduced by holding these hearings at a secure location with a police presence and metal detectors, such as the Carbon County Court of Common Pleas." As to its request for the appointment of an independent hearing officer, Plaintiff claims that "[i]t is simply not possible for the current ZHB to render a fair, impartial, detached decision in the face of threats of violence ... " 

ORDER OF COURT

AND NOW, to wit, this 17th day of February, 2017, upon consideration of Defendant, Penn Forest Township Zoning Hearing Board's Preliminary Objections to Plaintiff's Amended Complaint, Plaintiff's Answer thereto, review of the briefs of counsel, and after oral argument thereon, it is hereby

ORDERED and DECREED that the aforesaid Preliminary Objections are SUSTAINED and that Plaintiff's Amended Complaint is DISMISSED with prejudice.

IT IS FURTHBR ORDERED and DECREED that the stay on further proceedings before the Penn Forest Township Zoning Hearing Board imposed by this Court, pursuant to the parties' stipulation and our Order dated October 18, 2016, is hereby LIFTED'. 

Atlanticwindvspennforesttwp-opinion_thumb
Atlantic Windvs Penn Forest Twp Opinion

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Source: http://www.carboncourts.com...

FEB 17 2017
http://www.windaction.org/posts/46547-penn-forest-township-prevails-against-atlantic-wind-iberdrola
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