Penn Forest, Atlantic Wind file arguments

Penn Forest Township said in a recent court filing that Bethlehem Authority and Atlantic Wind are welcome to build wind turbines on the authority’s watershed in Carbon County — if they stop using the site for the production of drinking water.

The township and 42 property owners whose homes neighbor the proposed turbines recently filed briefs in Carbon County Court.

The township and neighbors are supporting the township zoning hearing board as they defend against an appeal from Atlantic Wind and the authority.

The wind turbine developers appealed the zoners’ December 2018 decision to deny their application for a special exception to build wind turbines on their property located in the R-1 rural residential agricultural zoning district.

The zoning hearing board said in its denial that there was an existing use on the property, and Bethlehem Authority did not meet its requirements for sound monitoring.

The case involves the developers’ second application for turbines on the site, which proposes 28 turbines reaching nearly 600 feet.

A separate appeal regarding a 2016 application for 37 smaller turbines is still pending.

Judge Steven Serfass heard arguments in the appeal of the second application in June. Atlantic Wind filed a brief in the case on the day of the hearing. Serfass gave the residents and township 30 days to respond. Serfass will now decide whether or not to grant Atlantic Wind’s appeal to overturn the zoning hearing board’s decision.

In its filing, the township defended the zoning hearing board’s decision that wind turbines would be a second principal use of the property. The township has pointed to Bethlehem Water Authority’s tax-exempt status to say that the watershed property already has a use — the production of drinking water. The township’s logic is that because a property must be used for a public purpose in order to be tax exempt, there is an existing use on the property.

The township zoning ordinance states that a property can only have one principal use. Atlantic Wind alleged that under the township’s logic, the only way the current use would cease would be if they sold the property. The township said that’s not the case.

“If Bethlehem Authority ceases the current use of the Project Area for the production of potable water, there is no reason why Bethlehem Authority cannot change the use of the Project Area, provided the new use complies with the Zoning Ordinance,” township attorney Thomas Nanovic wrote.

Attorney Bruce Anders responded on behalf of the 42 property owners. He disputed the developers’ claim that the 42 property owners could only limit their arguments to the issues which Atlantic Wind raised in its appeal. Anders has raised other points.

He has alleged that four parcels included in the project are located in a zoning district where turbines aren’t allowed, and some of the project may be located in land which isn’t owned by the authority.

Atlantic Wind has said that the 42 residents can’t raise those issues because they were not discussed in Atlantic Wind’s appeal. Atlantic Wind appealed the decision They’ve cited cases where courts agreed with that stance.

Anders responded by citing a case which he said takes precedent. He said a state appeals court ruled that an appeal isn’t just limited to the issues raised by the appellant. Parties like the 42 residents can raise any issue which concerns the criteria for granting a special exception for wind turbines in an R-1 district, Anders said.

Bethlehem Authority responded on Friday in a court filing where they said a property’s zoning use is determined by its physical use, not by its ownership status. They also said that the zoning hearing board’s preferred method for testing the sound coming from the turbine does not fit with the tests required by federal agencies.

Rep. Doyle Heffley has proposed several bills in Harrisburg in response to the authority’s plans. One bill says if a municipal authority in a third class county like Northampton tries to develop on a watershed located in a sixth class county, like Carbon, a majority of residents in the municipality where the watershed is located would have to approve the project via a ballot referendum.

Other bills in the package would revoke the tax exempt status of the watershed if it develops on its property, and let the auditor general have more oversight of the authority. The bills have been referred to the general assembly’s local government committee.