The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
EDF Renewable Energy, :
: No. 2601 C.D. 2015
Appellant : Argued: September 13, 2016
:
v. :
:
Foster Township Zoning :
Hearing Board and Foster :
Township :
EDF Renewable Energy :
: No. 2645 C.D. 2015
v. : Argued: September 13, 2016
:
Foster Township Zoning :
Hearing Board :
:
v. :
:
Foster Township :
:
Appeal of: Foster Township :
Zoning Hearing Board :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION
BY JUDGE WOJCIK FILED: November 22, 2016
EDF Renewable Energy (EDF) appeals from the November 18,
2015 order of the Court of Common Pleas of Luzerne County (trial court), which
affirmed the decision of the Foster Township (Township) Zoning Hearing Board
(ZHB) to deny EDF’s application for a special exception to construct wind farms
in three different zoning districts in the Township. The ZHB cross-appeals and
argues that the appeal should be quashed as premature. We affirm.
In July 2014, EDF applied for a permit to construct approximately 25
wind turbines, approximately 525’ 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.1
Township Ordinance Section 255-36 states that whenever a use is
neither specifically permitted nor denied in a district, the zoning hearing officer
shall refer an application for such use to the ZHB to hear and decide as a special
exception. Pursuant to that provision, EDF submitted an application for a special
exception to the ZHB. R.R. at 21a. The application was accompanied by a letter,
R.R. at 22a-23a, which briefly outlined the project, the parcels likely to be included
for the project, and the proposed uses for each parcel, as well as a map, R.R. at
24a, which had circled areas indicating the approximate location of the wind
turbines, and agreements with landowners, R.R. at 26a-41a.
Under Section 255-36 of the Ordinance, the ZHB may permit a
proposed use
only if it is determined to be similar to and compatible
with permitted uses in the district and in no way is in
conflict with the general purposes and intent of this
chapter. The burden of proof shall be upon the applicant
to demonstrate that the proposed use would meet the
1
The transcript reflects that EDF had met with the township solicitor about an
amendment to the Ordinance. Reproduced Record (R.R.) at 111a-14a. Ordinance Section
255.132 sets forth procedures and criteria for adoption of curative amendments but is not
referenced in this appeal.
2
standards and criteria for a special exception as contained
in [Ordinance Section] 255-142B of this chapter and
would not be detrimental to the public health, safety and
welfare and/or environmental features and characteristics
of the site and/or surrounding areas.
R.R. at 483a. Section 255-51 of the Ordinance specifically authorizes the ZHB to
approve or deny applications for uses permitted by special exception “pursuant to
the standards and criteria set forth in §255-142B,[2] the respective zoning district in
2
Section 255-142B states:
(1) The Board shall hear and decide requests for uses and/or
development which are permitted as special exception uses.
Special exception uses may be referred to the Planning
Commission for its review, comments and recommendations prior
to final action by the Board. The Board shall grant approval only
upon determination that the proposed use and/or development
conforms with all applicable standards and provisions within this
chapter and the following express standards and criteria:
(a) The proposed use shall not jeopardize community
development objectives as [set forth in] the Foster Township
Comprehensive Plan, including any updates, revisions and/or
amendments thereto.
(b) Public services and facilities such as streets . . . shall be
adequate for the proposed use and/or development.
(c) Existing streets and proposed access to the site shall be
adequate . . . for emergency vehicles.
(d) Existing streets and proposed access to the site shall be
adequate to accommodate anticipated traffic volumes . . . .
(e) The proposed use shall be compatible with adjoining
development and the character of the zoning district and
neighborhood in which it is proposed to be located. The nature
and intensity of the operation of the proposed use shall be
considered regarding its compatibility or lack thereof.
(Footnote continued on next page…)
3
which the use is located, [and] all other applicable regulations of this chapter . . . .”
R.R. at 503a.
Additionally, Ordinance Section 255-52 states that an applicant for a
special exception must file a site plan:
A. Uses classified as a special exception shall file, in
addition to a zoning permit, a site plan at a scale of: (1)
One inch equals 50 feet for uses/developments located
upon properties in excess of two acres; or (2) One inch
equals 20 feet for uses/developments located upon
properties two acres or less.
B. Such plan shall provide all applicable information
required for the Zoning Hearing Board to render a
decision, including, but not limited to the following:
(1) The applicant shall submit a narrative outline that
fully describes all proposed uses or development of the
site, and all pertinent operational aspects, features, and/or
(continued…)
(f) The proposed use shall not substantially impair the value of
other property in the neighborhood where it is proposed to be
located.
(g) The proposed use and/or development shall not be more
objectionable in its operations in terms of noise, fumes, odors,
vibration, or lights than would be the operations of any permitted
use in the subject zoning district.
(h) The submission of any reports and/or studies, required by the
Board, within the context of the definition “impact analysis,” . . . .
(i) The proposed use and/or development shall not be injurious to
the public interest.
R.R. at 581a-82a.
4
activities related to the proposed uses or development of
the site.
(2) The applicant shall provide upon the site plan the
location and size of all buildings and structures, existing
and proposed, including both principal and accessory
buildings and structures.
(3) The applicant shall provide upon the site plan the
location of all off-street parking areas and/or loading
areas.
(4) The applicant shall provide upon the site plan the
location of all open space areas, including buffer areas
and fencing, if applicable.
(5) The applicant shall provide upon the site plan the
means of traffic access to the site and internal traffic
circulation within the site including the width and
pavement of traffic lanes, and aisle widths.
(6) The applicant shall provide upon the site plan all
streets, both public and private, within 200 feet of the
site, including the right-of-way and cartway widths.
(7) The applicant shall provide upon the site plan the
contours of the site for each five feet of change in
elevation, based upon a field survey of the site, with the
name of the person or firm who conducted the survey and
the date of the survey when the proposed use includes
new construction and/or grading of the site. If
applicable, the applicant shall be required to submit a
Soil Erosion and Sedimentation Plan for review and
approval by the Luzerne County Conservation District.
(8) The applicant shall provide upon the site plan the
location, nature and terms of any existing or proposed
easements on the site and any easements both on-site and
off-site which are used or intended to be used for access
to the site, including the name and address of the owner
or owners granting such easements.
5
(9) The applicant shall provide upon the site plan the
location of all streams, ponds, watercourses, wetlands or
any other bodies of water, including natural or man-made
drainage swales, located on the site or within 200 feet of
the site.
(10) The applicant shall provide upon the site plan the
location of any residential structure within 200 feet of
any property boundary line of the subject site, when the
proposed use is nonresidential.
(11) The applicant shall supply upon the site plan the
County Map, block and lot number of the subject parcel
as contained in the records in the office of the Luzerne
County Recorder of Deeds and a copy of the deed to the
subject property.
(12) The applicant shall provide upon the site plan a
location map at a scale of not greater than one inch
equals 2,000 feet, indicating the relationship of the site to
its geographic proximity within the Township.
(13) The applicant shall supply any other information
required by the Foster Township Zoning Hearing Board
for determining the conformance of the special exception
use with the applicable regulations for that particular use.
R.R. at 503a-504a (emphasis added).
The ZHB held a hearing on EDF’s application on September 24,
2014, which was continued to November 6, 2014, and concluded on December 3,
2014. EDF presented testimony and other evidence and provided a 36” x 24” copy
of the map submitted with its application for reference.
Doug Copeland, EDF’s regional development manager, testified that
EDF had obtained several leases and had secured rights with other property
owners. He stated that the noise generated by the proposed use would be only
about 55 decibels, the equivalent of a running refrigerator, at the property line of
6
adjacent land. Copeland provided additional testimony about each of the three
areas in which wind turbines would be situated.
As to the C-1 district, he stated that roads would be constructed using
existing haul roads to minimize land clearing. He estimated that there would be 8
or 9 wind turbines in this area, with the closest turbine situated 1700 feet from the
nearest home. Coleman explained that the final location of the wind turbines
would be determined based upon soil conditions and added that trees would block
the view from most homes. R.R. at 101a-40a.
Copeland testified that the area zoned A-1 was situated between 2
coal seams and said that there were no homes within a mile of that location.
Coleman estimated that there would be 4 or 5 wind turbines on the A-1 site. He
said that EDF would use existing roads in this area to the extent possible. R.R. at
147a-50a.
Copeland stated that the I-1 property was scrub land, a high point
between two active mining operations, with mining on one side and a quarry to the
north. He stated that EDF would build a new road, approximately 3 miles long and
15 feet wide, with a clearance of 50 feet. He estimated that EDF would construct
12 to 14 wind turbines at that location. R.R. at 154a-57a.
Copeland testified that a substation also would be located on the I-1
property, explaining that a substation acts like a breaker box. Coleman could not
say how the wind turbines in each area would be connected to the substation. He
testified that EDF’s preference would be underground connections, but he noted
that overhead connections would be simpler, and he stated that EDF was “in the
process of figuring that out.” R.R. at 158a-61a.
7
Copeland estimated that the wind turbines would be situated about
1000 feet apart, with each encompassing about 1 acre of land. R.R. at 307a, 373a.
He added that the wind farm would have FAA-required lighting, which would have
minimal or no impact on nearby residents. Copeland also testified regarding
preliminary studies EDF conducted concerning sound and wildlife impact, noting
that EDF signed an agreement for cooperation with the Pennsylvania Game
Commission. Copeland emphasized the economic benefit the project would bring
to the area, stating that it would likely generate half a million dollars in zoning
permit fees alone. R.R. at 185a-86a.
Bob Hazenstab, EDF operations manager for Chestnut Flats
Windfarm in Altoona, testified about the revenue generated by the Altoona project.
He described noise studies conducted there, and he noted the absence of water
runoff issues. Hazenstab also addressed potential safety concerns and explained
that the wind turbines are designed to fall in half, not their full length of 525 feet.
R.R. at 191a-208a.
Alan Rosen, a licensed real estate appraiser, testified that he is
familiar with the area and that the wind farm would have no adverse effect on
property values in the area. R.R. at 72a-99a.
Several residents testified in opposition to the proposal, including the
president of the Greater Hazleton Area Astronomical Society, who complained that
the wind turbines would block the night sky and would cause light pollution. R.R.
at 310a-15a. The general manager of the nearby Beech Mountain Lakes
development testified that the wind farm would have a detrimental impact on
property values, up to 11% according to a British study. R.R. at 319a. Other
8
residents objected based on concerns of noise and the project’s potential impact on
wildlife.
During the course of the hearing, the ZHB referred the matter to the
township planning commission, which held two hearings and twice recommended
that the proposed use be denied as not similar to or compatible with permitted uses
in the districts. On December 3, 2014, the ZHB voted to deny EDF’s application,
and the ZHB confirmed its oral decision in a January 2, 2015 letter to EDF,
detailing its findings and conclusions. R.R. at 607a-12a.
In its written decision, the ZHB found that EDF wanted to construct
approximately 25 wind turbines, each approximately 525-feet high, and would
construct approximately 4 miles of roadways, utilizing approximately 2 miles of
existing roads. The ZHB noted that EDF produced a generalized map of the entire
area, including other municipalities, with ovals indicating the approximate location
of the wind turbines. However, the ZHB observed that the map does not show the
roadways or the location of the 25 wind turbines, proposed collection cables and
substation.3 (FF Nos. 10-13).
The ZHB also found that the matter was referred to the township’s
planning commission, which issued a written decision finding that the proposed
use of wind turbines as part of a wind farm is not similar to or compatible with
permitted uses in the district and does not fall within the Comprehensive Plan for
Foster Township, and the ZHB stated that it adopted the planning commission’s
recommendation and decision. (FF Nos. 14-20).
3
The ZHB erroneously stated that no leases were entered into the record. FF No. 2. We
conclude that this error is harmless.
9
The ZHB recognized that Ordinance Section 255-52 expressly
requires an applicant for a special exception to submit a site plan, at a scale of 1
inch equals 50 feet for developments in excess of 2 acres, along with 13 specific
requirements, such as the location and size of all proposed structures. (FF Nos. 21-
29). The ZHB found that the scale of the map submitted by EDF is 1 inch equals
1.4 miles and that the map is devoid of essential information, including the number
of wind turbines proposed for each of the three areas, the proposed location of the
turbines at each site, and their proposed size and height. (FF No. 30). The ZHB
determined that as a result of its non-compliance with Section 255-52, EDF did not
supply the information necessary to demonstrate compliance with the standards
and criteria set forth in Ordinance Section 255-142(B). (FF Nos. 31-32).
The ZHB further found that EDF failed to produce sufficient evidence
to establish that the proposed use would not adversely affect the community or
impact property values. (FF No. 39) Additionally, the ZHB found that EDF failed
to meet its burden of production and burden of proof on the standards necessary for
a special exception under Section 255-36, in that EDF did not demonstrate that the
proposed use as a wind farm is similar to or compatible with permitted uses in the
district and falls within the Comprehensive Plan for Foster Township, and EDF’s
documents did not provide the information required under Section 255-52 of the
Ordinance. (FF Nos. 33-37).
The ZHB’s written decision is dated January 2, 2015. R.R. at 629a-
34a. On that same date, EDF filed a Notice of Land Use Appeal, stating that it was
appealing the ZHB’s December 3, 2014 decision. According to affidavits of
counsel for the ZHB and the Township, the ZHB’s written decision was not mailed
until January 5, 2015. The ZHB filed a motion to quash EDF’s appeal as
10
prematurely filed, which the trial court denied by order dated June 4, 2015. EDF
filed a Supplemental Notice of Appeal on January 30, 2015.
The trial court denied EDF’s appeal on the grounds that EDF failed to
comply with the objective criteria of the Ordinance, i.e., Section 255-52 (site plan),
and failed to carry its burden of persuasion to demonstrate that the proposed use of
wind turbines was similar to or compatible with the comprehensive plan for the
Township. EDF now appeals to this Court,4 arguing that the ZHB capriciously
disregarded evidence and thus erred in denying the special exception application.
The ZHB cross-appeals, arguing that the trial court erred in failing to grant the
ZHB’s motion to quash EDF’s appeal as premature.
We first address the ZHB’s contention that EDF’s appeal should be
quashed as premature. Citing Magyar v. Zoning Hearing Board of Lewis
Township, 885 A.2d 123, 128 (Pa. Cmwlth. 2005), Snyder v. Zoning Hearing
Board of Warminster Township, 782 A.2d 1088, 1090 (Pa. Cmwlth. 2001),
Sections 914.1(b), 1001-A, and 1002-A of the Municipalities Planning Code
(MPC),5 and Section 5572 of the Judicial Code, 42 Pa.C.S. §5572,6 the ZHB
4
When the trial court takes no additional evidence in a land use appeal, our scope of
review is limited to determining whether the zoning hearing board committed an error of law or
abused its discretion. Slusser v. Black Creek Township Zoning Hearing Board, 124 A.3d 771,
773 n.2 (Pa. Cmwlth. 2015). A zoning hearing board abuses its discretion when its findings are
not supported by substantial evidence. Id. Substantial evidence means relevant evidence that a
reasonable mind might accept as adequate to support a conclusion. Id.
5
Act of July 31, 1968, P.L. 805, as amended, added by the Act of December 21, 1988,
P.L. 1329, 53 P.S. §§10914.1(b), 11001-A, and 11002-A. Section 11001-A of the MPC states
that “[t]he procedures set forth in this article shall constitute the exclusive mode for securing
review of any decision rendered pursuant to Article IX or deemed to have been made under this
act.” Section 10914.1(b) of the MPC provides that “[a]ll appeals from determinations adverse to
the landowners shall be filed by the landowner within 30 days after notice of the determination is
issued.” 53 P.S. §10914.1(b). Section 11002-A of the MPC states that appeals from land use
(Footnote continued on next page…)
11
asserts that for purposes of appeal, the date of entry of the ZHB’s order is the mail
date. Noting that counsel for both the ZHB and the Township attested that the
ZHB’s written decision was not mailed until January 5, 2015, the ZHB argues that
EDF’s January 2, 2015 appeal, which references the ZHB’s December 3, 2014
decision, was taken from the ZHB’s oral decision and should be quashed as
premature.
However, both Magyar and Snyder are distinguishable from the
circumstances presented here. Magyar was a “procedurally unusual case,” 885
A.2d at 124, involving an appeal from a deemed denial governed by Section 908(a)
of the MPC, 53 P.S. §10908(a) (requiring public notice of a deemed denial to
trigger the 30-day appeal period). In Snyder, the appeal was filed 15 days before
the date of the zoning board’s order, and this court pointedly noted “[a]dditionally,
Appellants never filed a subsequent appeal within thirty days after the entry of the
decision, as required by the MPC.” 782 A.2d at 1090 (emphasis added).
EDF responds that the ZHB’s decision is in fact dated January 2,
2015, and it expressly states that an appeal must be filed “within thirty (30) days of
the date of this letter.” R.R. 634a (emphasis added). EDF further notes that it
reserved the right to supplement its January 2, 2015 Notice of Land Use Appeal
because it had not received the ZHB’s findings and conclusions.
(continued…)
decisions “shall be filed within 30 days after entry of the decision as provided in 42 Pa.C.S.
§5572 (relating to time of entry of order). . . .”
6
Section 5572 states that the date of service of an order of a government unit, “which
shall be the date of mailing if service is by mail, shall be deemed to be the date of entry of the
order for the purposes of this subchapter . . . .” 42 Pa.C.S. §5572.
12
Based on the date and language of the ZHB’s decision, we conclude
that the trial court did not err in denying the motion to quash the appeal as
premature. While EDF’s second filing is entitled “Supplemental Notice of Land
Use Appeal,” it was filed after January 5, 2015, and within the 30-day appeal
period. Although the ZHB argues that a premature appeal cannot be
“supplemented,” we conclude that the second notice of appeal cured any
jurisdictional defect. Snyder.
Turning to the merits, we note that a special exception in a zoning
ordinance is not an exception to a zoning restriction, but rather, a use that is
expressly permitted. Broussard v. Zoning Board of Adjustment of Pittsburgh, 831
A.2d 764, 769 (Pa. Cmwlth. 2003).
An ‘exception’ in a zoning ordinance is one allowable
where facts and conditions detailed in the ordinance, as
those upon which an exception may be permitted, are
found to exist. Thus, an exception has its origin in the
zoning ordinance itself. It relates only to such situations
as are expressly provided for and enunciated by the terms
of the ordinance. The rules that determine the grant or
refusal of the exception are enumerated in the ordinance
itself. The function of the board when an application for
an exception is made is to determine that such specific
facts, circumstances and conditions exist which comply
with the standards of the ordinance and merit the granting
of the exception.
Id. (quotations and citations omitted) (emphasis in original).
EDF argues that it presented sufficient evidence, in its application and
through witness testimony, to satisfy all applicable ordinance criteria for the grant
of a special exception. More specifically, EDF contends that it presented expert
testimony regarding many details of the proposal, including concerns raised by
objectors. EDF asserts that its witnesses also addressed the most contentious
13
issues, which were the effect of the wind farm on neighboring property values and
its compatibility with adjoining development and the character of the zoning
districts. EDF emphasizes that it submitted a 36” x 24” map with its application
and that the map was used by witnesses to identify specific locations and
geographical issues. EDF maintains that its evidence was not rebutted, and,
therefore, the ZHB abused its discretion in denying the requested special
exception.
In response, the ZHB and Township argue that, as the applicant for a
special exception, EDF had the burden of proving that the proposed use meets the
objective standards set forth in the zoning ordinance. Bray v. Zoning Board of
Adjustment, 410 A.2d 909, 910 (Pa. Cmwlth. 1980). The Township argues that
EDF did not meet this burden because it did not file a detailed site plan, as required
by Section 255-52 of the Ordinance, and failed to show that the proposed use is
similar to and compatible with permitted uses in the district, as required by
Ordinance Sections 255-36 and 255-142.
Our review of the record confirms the ZHB’s conclusion that EDF did
not satisfy the objective requirements of the Ordinance. In particular, EDF’s
failure to submit a site plan as required by Ordinance Section 255-52(B), (or
request a waiver of that requirement, or an extension of time to do so), is sufficient
grounds on its own to deny the special exception application.
Contrary to EDF’s assertions, the evidence offered at the hearing did
not provide all of the information required by Section 255-52(B). Indeed,
Copeland testified that the number of wind turbines and the precise location of the
turbines and other details could not be determined until the soil was tested.
Copeland could not say whether the wind turbines’ connection to the substation
14
would be underground or above ground. He stated that EDF would use existing
roads “to the extent possible.” 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 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.
EDF argues that the zoning officer’s assurance to the ZHB that EDF’s
application was completed properly, R.R. at 52a, and his submission of the
application to the ZHB is evidence that the application complied with the
Ordinance.7 However, EDF does not elaborate or provide any authority for this
assertion, and a party’s failure to include analysis and relevant authority hampers
the court’s ability to conduct meaningful appellate review. Korunsky v. Housing
Code Board of Appeals, 660 A.2d 180, 183-84 (Pa. Cmwlth. 1995); see also 2 G.
Ronald Darlington et al., Pennsylvania Appellate Practice, §2119.4 (2015-2016).
Nevertheless, we observe that the Ordinance confers authority on the ZHB, not the
zoning officer, to hear and decide requests for special exceptions. See Ordinance
Section 255-51 (“The authority for approving or denying applications for uses
permitted by special exception shall be vested in the Zoning Hearing Board”).
Further, we note that the statement on which EDF relies was made during the
7
In relevant part, Section 255-142 A of the Ordinance states that an application for a
special exception use shall not be submitted to or considered by the Zoning Hearing Board until
the applicant submits an application for a zoning permit to the zoning officer and a site plan in
accordance with §255-52 of this chapter. The zoning officer “shall initially review the site plan
to determine its compliance with §255-52 of this chapter.” R.R. at 581(a).
15
hearing, and EDF does not assert that it detrimentally relied on the zoning officer’s
acceptance of the application.
Accordingly, we affirm.
MICHAEL H. WOJCIK, Judge
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
EDF Renewable Energy, :
: No. 2601 C.D. 2015
Appellant :
:
v. :
:
Foster Township Zoning :
Hearing Board and Foster :
Township :
EDF Renewable Energy :
: No. 2645 C.D. 2015
v. :
:
Foster Township Zoning :
Hearing Board :
:
v. :
:
Foster Township :
:
Appeal of: Foster Township :
Zoning Hearing Board :
ORDER
AND NOW, this 22nd day of November, 2016, the order of the Court
of Common Pleas of Luzerne County, dated November 18, 2015, is affirmed.
__________________________________
MICHAEL H. WOJCIK, Judge