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The Zoning Hearing Board revoked a zoning permit after it had been issued to a developer who wished to create a wind turbine project.  Specifically, the project was to entail 20-28 wind turbines spread out over an 11 acre area.  It was noted early in the application process, however, that the turbines would exceed the maximum height allowance in the zoning district where they would be installed.  One year after the permit had been issued, 47 neighboring landowners appealed. Thirty-four of the homeowners were dismissed from the proceeding for failure to show up at the hearings.  The hearings were conducted and the Board decided to revoke the previously issued zoning permit.  When revoking the permit, the Board stated that the permit had been improperly issued because the wind turbines were not a permitted use.  The developer appealed.

The trial court determined that the Board had properly revoked the zoning permit because the Zoning Officer did not have the authority to issue a permit for wind turbines in the proposed district.  The developer alleged in his appeal that he enjoyed a legally protected vested right in the zoning permit and that the lower court improperly granted nine landowners standing in this case.  The Court disagreed with developer and determined that the nine landowners had standing because they had a substantial interest in the issuance of the permit. Moreover, the neighbors filed timely appeals because they did not learn about the permit being issued until May 2009.  As to the vested right in the zoning permit, the Court weighed five factors, including 1) due diligence in attempting to comply with the law; 2) good faith throughout the proceedings; 3) the expenditure of substantial unrecoverable funds; 4) the expiration without appeal of the period during which an appeal could have been taken; and 5) the insufficiency of evidence to prove that individual property rights would be adversely affected by the use of the permit.  The Court held that a claim of vested rights to a permit fails when a timely appeal has been taken. In this instance, the appeals had been timely made and as such, the trial court’s decision was affirmed.

In re Broad Mountain Development, LLC ,2011 WL 768655 (Pa.Cmwlth. 3/7/2011)

The opinion can be accessed at: http://www.aopc.org/OpPosting/Cwealth/out/1254CD10_3-7-11.pdf