Carbon County Court of Common Pleas Judge Steven R. Serfass has denied a land use appeal filed by Atlantic Wind LLC and the Bethlehem Authority, seeking to erect a wind turbine project in Penn Forest Township.

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A Carbon County judge has sided with two property owners who appealed the construction of 37 wind turbines on Bethlehem Authority-owned property, arguing the structures would be too loud and ruin their property values. The judge also ruled that a special exception the turbine company, Atlantic Wind LLC, was seeking should be vacated because Atlantic Wind failed to show the project will comply with Penn Forest Township zoning codes.

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In a 61-page opinion Judge Steven R. Serfass wrote, “Atlantic Wind has failed to demonstrate that the sound produced by the proposed wind turbines will not exceed 45 A-weighted decibels and that there will be only one principal use on the proposed project area. Atlantic Wind has failed to meet its burden of persuasion that the proposed wind turbine project will comply with all the objective requirements for special exception to the granted under the Penn Forest Township Zoning Ordinance.”

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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.

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The complaint argues, in part, that the county zoning ordinance presently allows wind turbines as a permitted use in the I-C (industrial/commercial) and C-M (conservation/mining) districts. As such, the county commissioners “cannot declare the zoning ordinance substantively invalid regarding wind turbines,” because their use is provided for in the county zoning ordinance, according to the complaint.

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In the appeal, Debra A. Shulski and Edward J. Greene, attorneys for Atlantic Wind, call the zoning board’s denial of its second application “arbitrary and capricious,” saying that the zoning hearing board “improperly discriminated against Atlantic Wind and held Atlantic Wind to a stricter standard than mandated or permitted by the Pennsylvania Municipalities Planning Code, the Zoning Ordinance or Pennsylvania case law.”

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According to the decision filed Jan. 30, the board found that overall, Atlantic Wind failed to produce sufficient evidence and did not show that the project would comply with the Penn Forest Zoning Ordinance. The application sought to construct 28 nearly 600-foot-tall industrial wind turbines in the township.

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Testimony concluded Tuesday night in the battle for Atlantic Wind to gain a permit to erect 28 wind turbines on land owned by Bethlehem Water Authority in Penn Forest Township Written briefs are due to the zoning board by Dec. 7. The zoning hearing board will meet on Dec. 17 to deliberate and announce its decision in the matter.

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“The application of the Atlantic Wind should be denied as filed as it does not comply with the not-to-exceed sound standard under the Penn Forest Zoning Ordinance; would establish a second principal use of the land in contravention of the (ordinance); and that no hardship was shown for a service building in the R-2 District." ...Schwab also wrote that the turbines would create a second, illegal use on the property. The ordinance states that a lot in the residential district can only have one principal use.

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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.  

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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.

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Atlantic Wind filed an amended complaint on Tuesday in the Carbon County Court of Common Pleas in response to the preliminary objections of the Penn Forest Zoning Hearing Board. The amended complaint makes the same assertions as the previous complaint, originally filed in late September and amended in early November, calling for a change of hearing location to the Carbon County Courthouse over safety concerns and requesting an independent hearing officer.

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In his ruling, issued Nov. 18, Judge William H. Amesbury wrote that the court “finds neither an abuse of discretion nor error of law” by the zoning hearing board in its denial of the special exception permit. EDF applied for the special exception in January 2014 to allow a wind farm with turbines, associated roads, cables and a substation.

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In a letter delivered late Monday to the county's Office of Planning, Zoning and Community Development, Gary Altman asked the county to order Iberdrola Renewables of Portland to stop operating approximately 22 wind turbines in its South Chestnut Wind Project near Farmington. Altman contends the turbines don't comply with a number of conditions set by the county's zoning hearing board in 2009, including setbacks, decommissioning bonds, noise levels and measures to protect bats.

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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. 

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Colorado-based RES Americas claims BP Wind Energy and a related firm, Mehoopany Wind Energy LLC, owes them almost $56.2 million that the contractor says it is owed for work done to ensure that the $250 million wind farm went on line by Dec. 31.

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This 18-page opinion and order issued by a three-judge Commonwealth Court panel upheld county Judge Charles M. Miller's ruling that the zoning permit issued to  Broad Mountain Development Co. LLC was correctly revoked by Butler Township. Broad Mountain sought permission to construct 20-28 wind turbines in the township. The panel found the developer did not have the right to the permit because wind turbines were not allowed in a Woodland-Conservation zoning district in the township. In addition, the panel ruled that the citizens who opposed the building of the windmills filed a timely appeal of Broad Mountain's original permit, and the company did not acquire a vested right to the permit, according to the opinion written by Judge P. Kevin Brobson.

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