By Dan Packel
Law360, Philadelphia (November 22, 2016, 3:41 PM EST) — A Pennsylvania appeals court on Tuesday upheld a Luzerne County township’s decision to deny a zoning exemption for a wind farm developer, agreeing that the developer failed to provide a proper site plan.
The Commonwealth Court rejected the appeal of EDF Renewable Energy, which sought a permit to build 25 wind turbines in Foster Township.
In December 2014, the township’s Zoning Hearing Board determined the company’s proposal lacked the details specified in a local ordinance governing exceptions to the zoning code.
“Our review of the record confirms the ZHB’s conclusion that EDF did not satisfy the objective requirements of the ordinance,” Judge Michael Wojcik said in the opinion.
EDF applied for the permit to build the 25 turbines, approximately 525 feet high, along with roads, collection cables and a substation in July 2014. But a zoning officer denied the request, according to the opinion.
The company, which is headquartered in San Diego, then applied for a special exception from the township’s ZHB. Under the township’s ordinance, the board can make exceptions for uses that are neither specifically permitted nor denied in a zoning district.
The ZHB then held a multiday hearing on the permit application, at which EDF presented testimony and evidence about the plan for the turbines, including a copy of the 36-by-24-inch map it provided with its application.
Several residents testified in opposition, citing light pollution and detrimental impacts on their property values, among other concerns.
When the ZHB sent a letter to EDF in January 2015, it explained that the map provided by the company did not show the location of the roadways or the location of the 25 wind turbines, proposed collection cables and substation. It also said that the township’s planning commission, which had been asked to weigh in, determined that the wind farm was not compatible to permitted uses in the district and did not fall under the township’s comprehensive plan.
EDF next appealed the case to the Luzerne County Court of Common Pleas, which found that the company did not provide a site plan and it fell short of the requirement to show the project was compatible with the comprehensive plan.
The Commonwealth Court proved to be of similar mind. While EDF argued that witnesses used the map to point out the specific location of features on the farm, the court said this was not enough to meet the information requirements of the township ordinance.
“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 5 feet of change of elevation; and the location of any residential structure within 200 feet of any property boundary line of the subject site,” Judge Wojcik said.
Attorneys for EDF and the township did not immediately respond to requests for comment.
EDF is represented by John Dean and Meghan Carey of Elliott Greenleaf & Dean.
The township is represented by Donald Karpowich, Sean Logdson and Kevin Walsh of Donald G. Karpowich, Attorney at Law PC.
The ZHB is represented by George Hludzik.
The case is EDF Renewable Energy v. Foster Township Zoning Hearing Board et al., case number 2601 CD 2015, in the Commonwealth Court of Pennsylvania.
–Editing by Aaron Pelc