International Municipal Lawyers Association - Local Government Blog

Be the First to Feel the Breeze…

May 4, 2009
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Posted By: Dwight Merriam, Partner, Robinson & Cole, LLP

One objective of this weekly land use blog is to provide the most current information and report on matters you might otherwise miss through normal channels.  Yes, the big cases and developments are covered, but this week I went behind the news, wrote to a company official named in a story, and just this morning acquired a decision worth reading which is not yet officially reported.

The case comes out of Fayette County, Pennsylvania. CLICK HERE for the story reported in the paper on Saturday and updated yesterday.

This is about a special permit/conditional use.  If the standards are met, it should be approved providing there is unrebutted substantial evidence of compliance.  It has the twist of involving a substantial wind farm project.

PPM Atlantic Renewables proposed to erect 24 wind turbines along 3.5 miles of Chestnut Ridge to generate enough electricity, 50.4 megawatts to be exact, to service 17,000 homes.  It submitted 20 – count ‘em – 20 special exception applications.  Two townships with a single Zoning Hearing Board (ZHB) – the third has its own ZHB which granted the requested special exception – voted to deny, largely on the grounds that the towers were too tall and would kill bats.

Judge Ralph C. Waxman, in a 33-page decision, held that the ZHB had abused its discretion in denying the applications.  CLICK HERE for the decision, available exclusively from IMLA.

People complained of the appearance and implied it would hurt tourism.

Judge Waxman said: “The Objectors seem to assume that just because the turbines would be added to the Chestnut Ridge viewshed that this would cause a negative impact. The Objectors presented no expert testimony to support their position and they admit that there is no way to predict if people will stop coming to the area due to the turbines.  While the concept of the general welfare of a community in zoning matters includes a consideration of aesthetics, aesthetics alone cannot support a determination that the health, safety and general welfare of a community would be adversely affected by the grant of a special exception.”

The court found that PPM had met its initial burden and that the burden had shifted to the objectors to rebut the presumption.

“Since the ZHB has exclusive jurisdiction to hear and render final adjudications in applications for variances, and upon consideration that the ZHB has failed to do so in this case, we remand this action back to the ZHB for further proceedings consistent with this opinion.  The ZHB shall consider and grant each special exception as required by law, and may impose whatever conditions they deem fit to protect the health, safety and general welfare of the community.”

The County apparently supported the project.  Two of its commissioners voted to intervene in the appeal on the side of the wind power developer.  One commissioner, after the court decision was issued, is reported in the Herald-Standard article as saying:  “There [is] some optimism that Fayette County will participate in something that is not only good for the county and our commonwealth, but also our nation. I hope the project comes to fruition.”

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This blog is made possible by the International Municipal Lawyers Association (IMLA), but may include guest bloggers (who are attorneys with experience in local government matters) who might or might not work for IMLA. Their views (and those expressed on this site) do not necessarily express the views of IMLA.