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Malitsch v. Penn Forest Township Zoning Hearing Board: Decision

This court decision concerns the land use appeal initiated by Phillip Malitsch and Christopher Mangold against a Notice of Deemed Approval assumed by Atlantic Wind for a project in Bethlehem, PA. Penn Forest Township and Atlantic Wind each filed to present additional evidence against the appeal, providing testimony on project infrastructure and turbine noise. The court raised concerns regarding Atlantic Wind's inexact turbine noise predictions and the project's negative impacts on the area's potable water supply. The judge ultimately ruled in favor of the plaintiffs and vacated the Notice of Deemed Approval, and denied the special exceptions Atlantic Wind had requested. Portions of the court decision are cited below. The entire decision can be accessed by selecting the document link on this page.

Phillip C. Malitsch and Christopher Mangold (hereinafter collectively "Appellants") initiated this case on May 22, 2017, when they filed a land use appeal concerning the "Notice of Deemed Approval" published by Atlantic Wind, LLC, on May 5, 2017 in The Times News, a newspaper of general circulation in Carbon County. In response to Atlantic Wind's notice, on May 25, 2017, the Penn Forest Township Zoning Hearing Board filed a "Motion to Strike Notice of Deemed Approval Published May 5, 2017." Atlantic Wind then intervened in this action on June 5, 2017, followed, on June 7, 2017, by Penn Forest Township in support of Appellants, and by Bethlehem Authority on June 20, 2017. The "Motion of Atlantic Wind, LLC to Strike Motion of Appellee Penn Forest Township Zoning Hearing Board to Strike Notice of Deemed Approval Published on May 5, 2017 for Lack of Standing" was filed on July 5, 2017. Following briefing and oral argument, this Court issued a memorandum opinion dated December 29, 2017 holding that Atlantic Wind's zoning application was deemed approved and that the Penn Forest Township Zoning Hearing Board lacked standing to strike the notice of deemed approval. Atlantic Wind and Penn Forest Township filed separate motions to "Present Additional Evidence Pursuant to MPC § 1005-A". 

Discussion

Moreover, the Pennsylvania Commonwealth Court has held that "a deemed zoning board approval no more cuts off the right to an appeal on the merits than would a timely board decision approving an application." Gryshuk v. Kolb, 685 A.2d 269, 631 (Pa. Cmwlth. 1996), aff'd after remand, 724 A.2d 1010 (Pa. Cmwlth. 1998). 

A. ATLANTIC WIND HAS FAILED TO PRESENT SUFFICIENT EVIDENCE AND FAILED TO SUSTAIN ITS BURDEN TO DEMONSTRATE THAT THE PROPOSED WIND TURBINE PROJECT WOULD COMPLY WITH SECTION 402.A.54.p OF THE PENN FOREST TOWNSHIP ZONING ORDINANCE.

Section 402.A.54.p. of the Zoning Ordinance provides that "[T]he audible sound from the wind turbine shall not exceed forty-five (45) A-weighted decibels, as measured at the exterior of an occupied dwelling on another lot, unless a written waiver is provided by the owner of the buildings." In order to prove compliance with this requirement of the Zoning Ordinance, Atlantic Wind called Mark Bastasch as a professional acoustical engineer. In modeling the sound level, Mr. Bastasch used the "LEQ method" which averages sound over a period of time. Mr. Bastasch testified that "the expected long- term average project sound level is not anticipated to exceed forty-five (45) DBA." According to his report, "The expected long- term average project sound level is not anticipated to exceed forty-five (45) DBA at any identified occupied dwelling." Therefore, the evidence produced by Atlantic Wind (a long-term average sound level) to show compliance with section 402.A.54.p. of the Zoning Ordinance was not responsive to the express requirement of that section which mandates a "shall not exceed" standard. On its face, the Zoning Ordinance specifies that a certain noise level shall not be exceeded but does not provide that noise emissions shall be averaged.

B. UNLESS THE BETHLEHEM AUTHORITY CEASES TO USE THE PROJECT AREA FOR THE PRODUCTION OF POTABLE WATER, THE PROPOSED WIND TURBINE PROJECT WOULD CONSTITUTE A SECOND PRINCIPAL USE WITHIN A RESIDENTIAL ZONING DISTRICT IN VIOLATION OF SECTION 801.B.2 OF THE PENN FOREST TOWNSHIP ZONING ORDINANCE.

The majority of the Project Area is located in the Penn Forest Reservoir watershed which contains eight thousand seven hundred eight-three (8,783) acres, of which seven thousand two hundred twenty-two (7,222) acres are owned by the Bethlehem Authority. The Penn Forest Reservoir watershed is kept in an undeveloped state for the purpose of maintaining the quality of water flowing into the Penn Forest Reservoir which drains into the Wild Creek Reservoir, both of which are sources of water for the City of Bethlehem, the Borough of Fountain Hill, the Borough of Freemansburg, and portions of eight (8) surrounding municipalities in Northampton and Lehigh Counties with a total population of over one hundred fifteen thousand (115,000) persons consuming approximately twelve million (12,000,000) gallons of water per day.

[W]e find that the production of potable water is the current "Principal Use" in the Project Area and that the Wind Turbine Project would constitute a second "Principal Use" within a residential zoning district in violation of section 802.B.2 of the Zoning Ordinance.

Decision

ORDER OF COURT AND NOW, to wit, this 21st day of April, 2020, upon consideration of Appellants' land use appeal and the oral argument of counsel thereon, our review of the record created before the Penn Forest Township Zoning Hearing Board and the Referee appointed by this Court, the briefs of the parties, and the report of the Referee, and in accordance with our Memorandum Opinion bearing even date herewith, it is hereby ORDERED and DECREED as follows:

1. The land use appeal of Phillip C. Malitsch and Christopher Mangold is GRANTED;

2. The deemed approval of the application of Atlantic Wind, LLC, for a special exception under the Penn Forest Township zoning Ordinance is VACATED; and

3. The application of Atlantic Wind, LLC for special exceptions under the Penn Forest Township Zoning Ordinance is DENIED.

Malitschvspennforesttwp2-decision_thumb
Malitschvs Penn Forest Twp2 Decision

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Source: https://www.carboncourts.co...

APR 21 2020
http://www.windaction.org/posts/51194-malitsch-v-penn-forest-township-zoning-hearing-board-decision
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