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Plaxton v. Lycoming County Zoning Hearing Board

December 4, 2009

ARTHUR AND ELKE PLAXTON, APPELLANTS
v.
LYCOMING COUNTY ZONING HEARING BOARD AND LAUREL HILL WIND ENERGY, LLC



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 land use appeal, Arthur and Elke Plaxton (Objectors), representing themselves, ask whether the Lycoming County Zoning Hearing Board (ZHB) erred in denying their substantive validity challenge to certain amendments to the Lycoming County Zoning Ordinance (zoning ordinance), which permit, by right, wind energy facilities in certain zoning districts in the County. Objectors assert the ordinance amendments are invalid because they: do not promote the public health, safety and welfare; improperly intrude on a judicial function; are arbitrary and unreasonable; and, fail to satisfy the constitutional and statutory mandate that zoning laws promote and protect the preservation of the natural, scenic and historic values of the environment. Because we discern no error in the ZHB's denial of Objectors' substantive validity challenge, we affirm.

I. Background

In January 2005, Laurel Hill Wind Energy, LLC (Laurel Hill) requested a special exception under the then-existing County zoning ordinance. Through its special exception request, Laurel Hill sought to construct and operate a wind energy project along the Laurel Ridge in Jackson and McIntyre Townships, Lycoming County, on land primarily within the County's Resource Protection (RP) Zoning District. Specifically, Laurel Hill proposed to construct a 70.5 megawatt wind-powered electric-generating, transmitting and interconnecting facility that would consist of approximately 47 (later reduced to 35) individual wind turbines located along Laurel Hill Ridge; an approximate two-mile long, 34.5 kilovolt, overhead transmission line; and, a switch yard and substation. The project would occupy an area of approximately 706 leased acres in Jackson and McIntyre Townships.

The zoning ordinance in effect at the time permitted, by special exception, a "public service use." Prior to the commencement of hearings on Laurel Hill's special exception request, the County Zoning Administrator determined Laurel Hill's proposed project fell within the "public service use" classification. A landowner whose property was adjacent to Laurel Hill's proposed project appealed the Zoning Administrator's determination.

After hearings, the ZHB affirmed the Zoning Administrator's determination. On further appeal, the Court of Common Pleas of Lycoming County (trial court) upheld this determination. The neighboring landowner then filed an appeal to this Court, but subsequently discontinued that appeal.

Numerous hearings then ensued before the ZHB on Laurel Hill's special exception request. After these hearings, the ZHB issued an opinion denying Laurel Hill's special exception request on the grounds: the proposal was inconsistent with the purpose of the RP District and the County's Comprehensive Plan; the proposal would create substantial, adverse impacts not typically generated by a public service use; and, Laurel Hill did not show it could adequately mitigate these adverse impacts. Laurel Hill appealed the ZHB's decision to the trial court.

In May 2007, the trial court issued an opinion and order affirming the ZHB's decision. The trial court determined the objectors to the special exception application proved to a very high probability that Laurel Hill's proposed wind energy project would generate adverse impacts not normally generated by a "public service use," and these impacts would pose a threat to the health, safety and welfare of the community as well as the wildlife community. Laurel Hill filed a timely appeal to this Court, but it subsequently discontinued its appeal.

II. Validity Challenge

On November 15, 2007, the Lycoming County Commissioners enacted amendments to the zoning ordinance. Among other things, these amendments allow, by right, the use of wind energy facilities in the County's RP, Agricultural and Countryside Zoning Districts. Wind energy facilities are not permitted in the County's other zoning districts.

In February 2008, Laurel Hill filed an application for a zoning permit to begin construction of its proposed wind energy facility. After a review of Laurel Hill's application, including various clarifications requested and provided, the zoning officer issued the zoning permit, with conditions, on May 9, 2008.

Approximately a month later, Objectors filed a substantive validity challenge to the zoning ordinance amendments. Through their challenge, Objectors asserted:

* The amendments allow a development that was judicially determined [in the prior special exception proceedings] to be detrimental to the health, safety, and welfare of the community;

* Allowing a use that is inconsistent with the purpose of the RP District is unreasonable, arbitrary, capricious, and contrary to Pennsylvania law;

* The amendments do not satisfy Section 604(1) of the Pennsylvania Municipalities Planning Code (MPC)*fn1 (the provisions of zoning ordinances shall be designed "[t]o promote, protect and facilitate any or all of the following: the public health, safety, morals, and the general welfare . as well as preservation of the natural, scenic and historic values in the environment and preservation of forests, wetlands, aquifers and floodplains.") and Section 603(g)(2) of the MPC, 53 P.S. §10603(g)(2) ("Zoning ordinances shall provide for protection of natural and historic features and resources."); and,

* The amendments deny the people the right to preservation of the natural and aesthetic values of the environment as required by the Pennsylvania Constitution. See PA. CONST. art. I, §27 ("The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania's public natural resources are the common property of all the people, including generations to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.")

Reproduced Record (R.R.) at 32a, 34a-36a; ZHB Op., Finding of Fact (F.F.) No. 9.

A hearing ensued before the ZHB. At hearing, Objector Arthur Plaxton, represented himself. He presented argument in support of his challenge to the zoning ordinance amendments, but he did not present any witness' testimony. Plaxton also submitted: a memorandum of law in support of his validity challenge; a portion of a revised map showing the proposed wind turbine locations; one page of Laurel Hill's November 2008 permit application; a list of mitigation measures previously recommended by the Lycoming County Planning Commission for the proposed project; sections 1 and 2 of the zoning ordinance amendments; a letter Plaxton wrote to the County Commissioners; a document copied from the County's website regarding citizen comments to the ordinance amendments; and, an e-mail from the County's Chief Clerk regarding Pennsylvania cases relating to exclusionary zoning.

Notably, Plaxton did not seek to introduce any evidence relating to the proceedings on Laurel Hill's prior "public service use" special exception request. Nevertheless, before the ZHB Plaxton primarily argued the ordinance amendments were invalid based on the prior trial court decision that upheld the ZHB's denial of Laurel Hill's special exception request on the grounds the proposed project would have a detrimental impact on the health, safety and welfare of the community.

Plaxton asserted this prior decision concluded that Laurel Hill's proposed wind energy facility was detrimental to the public health, safety and welfare and, as a result, the ZHB was required to conclude the ordinance amendments, which permit such facilities by right, were invalid.

Ultimately, the ZHB issued an opinion in which it determined Objectors did not satisfy their burden of proof on their substantive validity challenge. Objectors appealed to the trial court.

Without taking additional evidence, the trial court affirmed the ZHB's decision. This appeal by Objectors followed.

On appeal,*fn2 Objectors argue the ordinance amendments are invalid because they: do not promote the public health, safety and welfare; improperly intrude on a judicial function; are arbitrary and unreasonable; and, fail to satisfy the constitutional and statutory mandate that zoning laws promote and protect the preservation of the natural, scenic and historic values of the environment.

I. Police Powers/Applicability of Collateral Estoppel

Objectors first argue the zoning ordinance amendments violate the Pennsylvania Constitution and several statutes. Therefore, the ordinance amendments must be declared invalid.

In particular, Objectors contend several Pennsylvania statutes and cases require zoning ordinances promote the public health, safety and welfare. They assert Laurel Hill's wind energy project for which a zoning permit was granted after the passage of the ordinance amendments had, prior to the amendments, been denied a special exception. Objectors note the trial court previously upheld the denial of the special exception on the ground the objectors in those proceedings proved the project was generally detrimental to the public health, safety and welfare. Objectors argue that when a zoning ordinance enables a project that was judicially determined to be contrary to the public health, safety and welfare, the ordinance is not promoting the public welfare.

Objectors also maintain the trial court here erred in determining that the prior trial court decision, which denied Laurel Hill's special exception request and which determined Laurel Hill's proposal was detrimental to the public welfare, was inapplicable here. Objectors argue the trial court erroneously believed they were relying on the doctrine res judicata, when, in fact, they were relying on the doctrine collateral estoppel. Applying collateral estoppel here, Objectors assert, the prior trial court determination that Laurel Hill's project was detrimental to the public health, safety and welfare should bar a contrary determination here that the zoning ordinance amendments, which permit such projects by right, is consistent with the public health, safety and welfare. For the reasons set forth below, we reject Objectors' assertions.

A zoning ordinance is valid when it promotes public health, safety or welfare, and its regulations are substantially related to the purpose the ordinance purports to serve. Boundary Drive Assocs. v. Shrewsbury Twp. Bd. of Supervisors, 507 Pa. 481, 491 A.2d 86 (1985) (citing Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365 (1926)). A validity challenge generally attacks zoning on substantive due process grounds, i.e., whether an ordinance is substantially related to a legitimate interest. Springwood Dev. Partners, L.P. v. Bd. of Supervisors of N. Cornwall Twp., ___ A.2d ___ (Pa. Cmwlth., Nos. 472, 473 C.D. 2008, filed August 20, 2009).

In Pennsylvania, the constitutionality of a zoning ordinance is reviewed under a substantive due process analysis. McGonigle v. L. Heidelberg Twp. Zoning Hearing Bd., 858 A.2d 663 (Pa. Cmwlth. 2004). Under such analysis, the party challenging the validity of provisions of the zoning ordinance must establish that they are arbitrary and unreasonable and have no substantial relationship to promoting the public health, safety and welfare. Id.; see also Open Pantry Food Marts, Inc. v. Twp. of Hempfield, 391 A.2d 20 (Pa. Cmwlth. 1978) (court may declare an ordinance to be an invalid exercise of the police power only where it is proven that its provisions are clearly unreasonable and have no relation to public safety).

In Woll v. Monaghan Township, 948 A.2d 933 (Pa. Cmwlth. 2008), appeal denied, 600 Pa. 767, 967 A.2d 962 (2009), ...


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