EDF Renewable Energy on Nov. 22 lost a decision out of the Pennsylvania Commonwealth Court, which is an appeals level, over permitting for a 25-turbine wind farm project.
EDF appealed from a November 2015 order of the Court of Common Pleas of Luzerne County (the trial court), which affirmed the decision of the Foster Township Zoning Hearing Board (ZHB) to deny EDF’s application for a special exception to construct wind farms. The Commonwealth Court on Nov. 22 upheld that lower court’s ruling.
In July 2014, EDF applied for a permit to construct approximately 25 wind turbines, approximately 525 feet high, as well as roads, collection cables, and a substation on properties located in the Township’s C-1 (Conservation), A-1 (Agricultural), and I-1 (General Industrial) zoning districts. The zoning officer denied the application because the proposed use was not a permitted use in the districts. EDF submitted an application for a special exception.
During the course of the hearing process, the ZHB referred the matter to the township planning commission, which held two hearings and twice recommended that the proposed use be denied as not similar to or compatible with permitted uses in the districts. In December 2014, the ZHB voted to deny EDF’s application, and the ZHB confirmed its oral decision in a Jan. 2, 2015, letter to EDF. In its written decision, the ZHB found that EDF wanted to construct approximately 25 wind turbines, each approximately 525-feet high, and would construct approximately four miles of roadways, utilizing approximately two miles of existing roads. However, the ZHB observed that the company’s map did not show the roadways or the location of the 25 wind turbines, proposed collection cables and substation. The ZHB also found that the matter was referred to the township’s planning commission, which issued a written decision finding that the proposed use of wind turbines as part of a wind farm is not similar to or compatible with permitted uses in the district and does not fall within the Comprehensive Plan for Foster Township, and the ZHB stated that it adopted the planning commission’s recommendation and decision.
The ZHB determined that as a result of its non-compliance with the applicable statute, EDF did not supply the information necessary to demonstrate compliance with standards and criteria. The ZHB further found that EDF failed to produce sufficient evidence to establish that the proposed use would not adversely affect the community or impact property values. Additionally, the ZHB found that EDF failed to meet its burden of production and burden of proof on the standards necessary for a special exception, in that EDF did not demonstrate that the proposed use as a wind farm is similar to or compatible with permitted uses in the district and falls within the Comprehensive Plan for Foster Township, and EDF’s documents did not provide the information required.
The trial court denied EDF’s appeal on the grounds that EDF failed to comply with the objective criteria of the ordinance, and failed to carry its burden of persuasion to demonstrate that the proposed use of wind turbines was similar to or compatible with the comprehensive plan for the township. EDF then appeals to the Commonwealth Court, arguing that the ZHB capriciously disregarded evidence and thus erred in denying the special exception application. The ZHB cross-appealed, arguing that the trial court erred in failing to grant the ZHB’s motion to quash EDF’s appeal as premature.
Said the Nov. 22 court decision: “Our review of the record confirms the ZHB’s conclusion that EDF did not satisfy the objective requirements of the Ordinance. In particular, EDF’s failure to submit a site plan as required by Ordinance Section 255-52(B), (or request a waiver of that requirement, or an extension of time to do so), is sufficient grounds on its own to deny the special exception application. Contrary to EDF’s assertions, the evidence offered at the hearing did not provide all of the information required by Section 255-52(B).”
The court added: “While EDF referred to a map during the hearing, neither the map nor the testimony of EDF’s witnesses satisfies the Ordinance’s requirement for a site plan that reflects the location of all structures, existing and proposed; all open space areas; means of traffic access and all streets; contours of the site for each five feet of change of elevation; and the location of any residential structure within 200 feet of any property boundary line of the subject site.”