Posted by: Patricia Salkin | December 6, 2016

PA Appeals Court Affirms Denial of Application for a Special Exception to Construct Wind Farm

EDF Renewable Energy (“EDF”) applied for a permit to construct approximately 25 wind turbines, 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 appealed from the order of the Court of Common Pleas of Luzerne County, which affirmed the decision of the Foster Township Zoning Hearing Board to deny EDF’s application for a special exception to construct wind farms in the three different zoning districts in the Township.

The ZHB first claimed that for purposes of appeal, the date of entry of the ZHB’s order was the mail date of ZHB’s written decision: January 5, 2015. The ZHB further argued that EDF’s January 2, 2015 appeal, which referenced the ZHB’s December 3, 2014 decision, was taken from the ZHB’s oral decision and should be quashed as premature. EDF responded that the ZHB’s decision was in fact dated January 2, 2015, and expressly stated that an appeal must be filed “within thirty (30) days of the date of this letter.” Based on the date and language of the ZHB’s decision, the court concluded that the trial court did not err in denying the motion to quash the appeal as premature.

The court also found that, as the applicant for a special exception, EDF had the burden of proving that the proposed use met the objective standards set forth in the zoning ordinance. Specifically, EDF’s failure to submit a site plan as required by Ordinance Section 255–52(B) was sufficient grounds to deny the special exception application. Additionally, even though EDF referred to a map during the hearing, neither the map nor the testimony of EDF’s witnesses satisfied the Ordinance’s requirement for a site plan that reflected 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. Accordingly, the judgment of the trial court was affirmed.

EDF Renewable Energy, Appellant v. Foster Township Zoning Hearing Board, 2016 WL 6873015 (PA Commwlth 11/22/2016)

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