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Piccolella v. Lycoming County Zoning Hearing Board

December 4, 2009

FRANK M. PICCOLELLA, SR., APPELLANT
v.
LYCOMING COUNTY ZONING HEARING BOARD



The opinion of the court was delivered by: Judge Simpson

Submitted: August 28, 2009

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE JOSEPH F. McCLOSKEY, Senior Judge.

OPINION

In this zoning appeal, Frank M. Piccolella, Sr. (Objector), representing himself, asks whether the Lycoming County Zoning Hearing Board (ZHB) erred in dismissing his appeal from the Lycoming County Zoning Administrator's (Zoning Administrator) grant of a zoning permit to Laurel Hill Wind Energy, LLC (Laurel Hill). Laurel Hill applied for the zoning permit in order to construct a proposed wind energy facility. Objector argues the ZHB erred in dismissing his appeal where Laurel Hill's permit application did not satisfy the applicable requirements of the Lycoming County Zoning Ordinance (zoning ordinance). Objector also claims the ZHB violated his right to due process. Discerning no merit in these contentions, we affirm.

In February 2008, Laurel Hill filed a detailed application for a zoning permit for a project it refers to as the "Laurel Hill Wind Energy Project." Specifically, Laurel Hill proposed to construct a 70.5 megawatt wind-powered electric-generating, transmitting and interconnecting facility consisting of: 35 individual wind turbines located along Laurel Hill Ridge; an approximate two-mile long, 34.5 kilovolt, overhead transmission line; and, a new switch yard and substation that would provide interconnection to the existing electric transmission system of the Pennsylvania Electric Company. The project would occupy an area of approximately 706 leased acres located in both the Agricultural and Resource Protection Districts in Jackson and McIntyre Townships, Lycoming County.

Laurel Hill's zoning permit application included: a 19-page community and environmental impact analysis; three tables showing estimated project expenditures; an evaluation of the indirect economic activity from construction and annual economic contribution of the project; a FEMA map; and, several appendices, which include a general site plan, a permit/approval project schedule, a hydrologic evaluation of wind turbine construction, a hydrogeologic evaluation plan summary; a report on the effect of wind development on local property values; and, a draft emergency response plan. In addition to the application itself, Laurel Hill provided the Zoning Administrator with a decommissioning plan, a resolution of approval from the McIntrye Township Board of Supervisors with an attached Wind Fund Agreement, a Pennsylvania Game Commission Wind Energy Voluntary Cooperation Agreement, and supplemental information regarding proposed routes of construction and access roads.

After his review, the Zoning Administrator approved the application in May 2009. Among other things, the Zoning Administrator explained:

[P]lease be aware that pursuant to Section 3230C.1(2)(a) of the [zoning ordinance], evidence of permits and conditions to satisfy all applicable [s]tate and [f]ederal agencies is required prior to the issuance of a [c]ertificate of [o]ccupancy. Land development approval is required in accordance with [zoning ordinance] Section 10130C.

The issuance of this permit evidences my approval of your [a]pplication conditioned on satisfying the requirements noted above. .

Certified Record (C.R.), ZHB Hearing, 7/23/08, Zoning Administrator Ex. 13; ZHB Op., Finding of Fact (F.F.) No. 11.

Shortly thereafter, Objector appealed the Zoning Administrator's approval of the permit, asserting Laurel Hill's application contained 28 deficiencies. Among other things, Objector argued the application did not satisfy Section 3230C.1 (relating to wind energy facilities) and Section 10240 (relating to general site plan requirements) of the zoning ordinance. A hearing ensued before the ZHB, at which Objector provided an explanation of the alleged deficiencies in Laurel Hill's permit application, and the Zoning Administrator presented numerous documents relating to his review of Laurel Hill's permit application.

After hearing, the ZHB issued a decision in which it determined Laurel Hill's application was sufficiently complete to warrant the Zoning Administrator's issuance of the permit. The ZHB specifically found, as part of the permit review process, Laurel Hill submitted, and the Zoning Administrator reviewed, information required by the zoning ordinance including, but not limited to, a site plan, a community and environmental impact analysis, a detailed explanation of tower safety, operations, setbacks, tower locations, signal interference, liability insurance, host municipality agreements, and a decommissioning agreement.

The ZHB further found, although Objector alleged various deficiencies in the information provided, it was clear that Laurel Hill's detailed and specific plans were "consistent with the procedures outlined by the requirements of the [z]oning [o]rdnance, and, in fact, [were] substantially complete." F.F. No. 17. The ZHB also found it clear from the record that, through the permit review process, the Zoning Administrator elicited clarifications and additional information from Laurel Hill to further detail and explain the project. In addition, the ZHB found:

19. The substantial, competent and credible evidence of record shows that the [a]pplication itself is sufficiently complete for the issuance of a permit, although details of the project may be subject to change under the supervision of the Zoning Administrator and the Planning Commission for compliance with the terms of the

[z]oning [o]rdinance and the [p]lanning [c]ode.

20. The [ZHB] does not find credible the assertion of [Objector] that the [a]pplication is so incomplete, so lacking in detail, so vague or ambiguous as to preclude

[z]oning review for the permitted use described by [Section 3230C.1 of the zoning ordinance], or that the Zoning Administrator failed to undertake the necessary review. To the contrary, the Zoning Administrator['s]

[e]xhibits above-listed credibly show that such assertions are without merit by detailing information obtained, clarifications requested, conditions to be met, and a process of ongoing review.

F.F. Nos. 19-20. The ZHB also determined:

6. It is clear, based upon the undisputed facts of record, that the [p]ermit [a]pplication filed by Laurel Hill describes a wind energy facility to be located in a Resource Protection and Agricultural Zone, as those Zones are defined by the [zoning ordinance]. Moreover, it is clear that a wind energy facility is a permitted use in both Resource Protection and Agricultural Zones under the terms of the [zoning ordinance]. [Section 3230C.1 of the zoning ordinance; Table of Uses Section 3120].

7. [Zoning] [o]rdinance Section 3230C.1 requires the Zoning Administrator to confirm that the [a]pplicant has submitted sufficient information to allow for the supervision of this permitted use.

8. Indeed, the [p]ermit [a]pplication itself, which allows for the issuance of a permit to commence the project, is not intended to include all the information necessary for the Zoning Administrator to issue a certificate of occupancy, the latter of which would be required before the facility could begin operation.

9. Section 3230C.1 has few specific prohibitions, but rather, describes requirements for the submission of information by the [a]pplicant and the review of that information by the Zoning Administrator to allow for the effective use of listed supplemental controls.

10. [Objector] [has] shown no fatal omission or inconsistency of this [a]pplication, or the process of review performed by the Zoning Administrator, with the [zoning] [o]rdinance requirements, or that [Laurel Hill] intends to construct or establish a use of a character or a specific design which is prohibited by the [z]oning [o]rdinance.

11. The [ZHB] cannot conclude, based upon the evidence submitted, that the [a]pplication approved is so deficient so as to preclude the likelihood that through the process of review, concerns such as tower safety, operations, set backs, preservation of scenic areas, avoidance of signal interference, water quality, wildlife protection, maintenance of liability insurance, proper agreements with host municipalities, and decommissioning, have not or will not be satisfied.

12. The [ZHB] must emphasize that its authority to review the issuance of the [p]ermit by the Zoning Administrator herein does not allow the [ZHB] to employ the special exception criteria of [zoning] [o]rdinance Section 10310. The proposed use is, by definition, permitted by right.

13. Rather, the [ZHB] is limited in its analysis to consider the Zoning Administrator's compliance with [zoning] [o]rdinance requirements. [See] Section 320C.1 and [zoning] [o]rdinance Sections 10250 and 10260. [See] [Section 909.1(a) of the Pennsylvania Municipalities Planning Code (MPC)*fn1 ]. In reviewing these sections, and taking into account the intent of the [zoning] [o]rdinance overall in permitting the requested use, the [ZHB] can find no substantial error, failure to follow procedures, misapplication of [zoning]

[o]rdinance requirements, or abuse of discretion by the Zoning [Administrator], or lack of necessary information, which would require that the [ZHB] reverse his decision to issue the [z]oning [p]ermit.

ZHB Op. Concls. of Law Nos. 6-13. Thus, the ZHB upheld the Zoning Administrator's grant of the zoning permit application and dismissed Objector's appeal.

Objector appealed to the Court of Common Pleas of Lycoming County (trial court), again asserting Laurel Hill's application was deficient. Objector also claimed the ZHB violated his due process rights by denying him the opportunity to present evidence and argument. Objector also claimed his due process rights were violated because of an alleged "conflict of interest," i.e., that the same law firm represents both Laurel Hill and Lycoming County. In addition, Objector argued Laurel Hill lacked standing to apply for the permit.

Without taking additional evidence, the trial court issued an opinion in which it rejected Objector's contentions, and affirmed the ZHB's grant of the permit to Laurel Hill. This appeal by Objector followed.

On appeal,*fn2 Objector assigns error in the ZHB's grant of Laurel Hill's permit application on the grounds the application was deficient. He also asserts his due process rights were violated because of the alleged conflict of interest mentioned above. Additionally, Objector argues the ZHB denied him a full opportunity to present evidence and argument, also resulting in a violation of his right to due process.

Initially, we note, in zoning cases the ZHB is the fact-finder, with exclusive province over matters of credibility and evidentiary weight. Manayunk Neighborhood Council v. Zoning Bd. of Adjustment of City of Phila., 815 A.2d 652 (Pa. Cmwlth. 2002). This Court will not engage in fact-finding or disturb the ZHB's credibility determinations on appeal. Id.

I. Alleged Deficiencies in Permit Application

Objector first asserts the ZHB erred in determining Laurel Hill's permit application was sufficiently complete to satisfy the requirements of Section 10240 of the zoning ordinance ("General Site Plan Requirements"). Specifically, Objector maintains Laurel Hill's application did not include: the location of transmission line poles, private roads and other buildings; information regarding the intensity of lighting required by the Federal Aviation Administration (FAA); the gross square footage of buildings depicted on the site plan; the amount of open space per lot; stormwater management and construction and site erosion plans; and, plans for sanitation and storm drainage facilities. Objector also contends Laurel Hill ...


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