Pennsylvania trial court rules for wind developer

PPM Atlantic Renewable v. Fayette County Zoning Hearings Board, Court of Common Pleas of Fayette County (Civil Division). Trial court decision of April 30, 2009.

PPM Atlantic Renewable was (is?) intending to install a 24-turbine 50 megawatt nameplate generation wind farm in Fayette County, Pennsylvania (our good neighbors to the south), along an approximately 3.5 mile section of Chestnut Ridge across multiple townships. To install the facility the developer required the equivalent of what in New York would be considered special or conditional use permits, along with height and setback variances.

The ZHB’s central conclusion was that the project would create too great of a negative impact upon the scenic views of Chestnut Ridge. It found compelling project opponents’ arguments that the wind farm would generally have a detrimental effect upon the health, safety, and general welfare of Fayette county and neighboring communities, and also that it would negatively affect the ability of local residents to use adjacent lands.

The court found the ZHB’s decision making lacking (to put it mildly). Relying on the project opponents’ scant evidence regarding impact on viewshed and tourism was improper as what opponents had offered up was “nothing more than mere speculation.” The court also found fault with the ZHB’s review of the variances PPM sought, noting that PPM had provided evidence that it needed to cite its facilities in particular locations and at specific heights to maximize its ability to extract energy from the wind resource.

Because the ZHB committed multiple errors of law, the Court concluded that the ZHB had abused its discretion and ordered the project back to the ZHB for further proceedings consistent with the court’s opinion. The ZHB is required to consider and grant each special exception as required by law and may impose conditions it deems fit to protect the health, safety and general welfare of the community.

This blogger was struck by how favorable to wind developers -by New York local zoning standards anyway- Fayette County zoning rules and procedure are. The process by which the ZHB denied the project was quick. Application was made in September 2007 and a decision (albeit denial) was reached in February 2008. By that point in New York, you’re just getting warmed up! Likewise, setback requirements (in the low hundreds of feet) are quite minimal when compared to typical New York local zoning standards.

Thanks to attorney Dwight Merriam of Robinson & Cole LLP (Hartford, CT) for bringing the case to our attention. A copy of it, and Dwight’s write up, may be found at the IMLA blog.

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