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Tink-Wig Mountain Lake Forest Property Owners Association v. Lackawaxen Township Zoning Hearing Board

December 16, 2009

TINK-WIG MOUNTAIN LAKE FOREST PROPERTY OWNERS ASSOCIATION, APPELLANT
v.
LACKAWAXEN TOWNSHIP ZONING HEARING BOARD



The opinion of the court was delivered by: Senior Judge McCLOSKEY

Argued: November 9, 2009

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE JOSEPH F. McCLOSKEY, Senior Judge, HONORABLE KEITH B. QUIGLEY, Senior Judge.

OPINION

Tink-Wig Mountain Lake Forest Property Owners Association (the Association) appeals an order of the Court of Common Pleas of Pike County (trial court) denying its land use appeal from the Lackawaxen Township Zoning Hearing Board's (the Board's) issuance of a zoning permit for the construction of a wind turbine on the real property of one of its members. We now affirm.

Tink-Wig is a planned community of approximately 800 lots located in a wooded valley in northern Pike County, Pennsylvania. The Association is a non-profit organization who owns the common areas and roads within the planned community of Tink-Wig. The Association administers and maintains the common areas and roads through the imposition and collection of annual assessments.

Steven Heinrich and Eileen Carroll are the owners of a lot in the planned community. On April 23, 2008, they applied to Lackawaxen Township (the Township) for a zoning permit seeking to erect a fifty-five foot high Skystream wind turbine to generate electricity as an accessory use on their property, an area zoned as R-1. Subsequently, the Township Zoning Officer issued a zoning permit for the proposed wind turbine as an accessory use permitted by the Township Zoning Ordinance (the Ordinance).

On May 28, 2008, after learning about the granting of the zoning permit, the Association filed an appeal with the Board as an interested and affected neighboring property owner.*fn1 In its appeal, the Association challenged the legality of the granting of the zoning permit by the Township Zoning Officer. The Association asserted that the proposed use was a conditional use, and, thus, the Township Board of Supervisors (the Supervisors) was the proper entity to decide whether or not the zoning permit should be granted.

A hearing was held before the Board on July 17, 2008. At the hearing, Jeff Cammerino, Township Code Enforcement Officer, James Dolan, Township Zoning Officer, Frank Ingulli, Executive Director of the Association, and Mr. Heinrich testified. Mr. Cammerino testified that it was his understanding that Section 501.2 of the Ordinance required that any structure proposed to be over sixty-feet in height was to be treated as a "conditional use," and because the proposed wind turbine was only fifty-five feet in height, it was therefore not considered to be a conditional use. (R.R. at 32a). Mr. Dolan testified that he issued the zoning permit because he concluded that the proposed use met the requirements for an accessory use and, thus, he acted properly in granting the zoning permit application. Mr. Heinrich testified that he applied for the zoning permit for an accessory use because he was interested in constructing the wind turbine in order to provide his private property with electricity.

In contrast, Mr. Ingulli testified that he did not believe that the proposed wind turbine was an accessory use and that it was not the same as a "gazebo," which had been considered an accessory use pursuant to the Ordinance. (R.R. at 83a). Mr. Ingulli testified that he had safety concerns about wind turbines and was also concerned that the provisions of the Ordinance did not "cover everything that's involved with wind turbines." (R.R. at 84a).

On August 26, 2008, the Board issued written findings of fact and conclusions of law and denied the Association's appeal. The Board noted that the first issue was whether the proposed wind turbine was an accessory use or a conditional use, as defined by the Ordinance. The Board noted that the zoning permit application listed the use as an accessory use and the Township Zoning Officer approved it as such. The Board noted that the proposed wind turbine was to be fifty-five feet in height (forty-nine feet in height plus an additional six feet for the blade extension), which was less than the sixty-foot conditional use height requirement in Section 501.2 of the Ordinance.

Further, the Board noted that although the Association argued that the wind turbine was "essentially different than other accessory uses," there was nothing in the Ordinance to "back up" that assertion. (R.R. at 295a). The Board recognized that a gazebo was not listed as an accessory use in the Ordinance, however, such an item was "routinely authorized as such under the general definitional scheme of the Ordinance." Id. Thus, the Board concluded that the proper analysis was to consider whether the proposed wind turbine met the requirements for an accessory use rather than a conditional use.

The Board noted that it was undisputed that the Ordinance did not list a wind turbine as one of the accessory uses permitted in an R-1 zone, but then indicated that the term "essential services" was listed as one of the specified accessory uses. Thus, the Board considered whether wind turbines were included in the definition of "essential services." The Board concluded that the proposed wind turbine was an "essential service" because it was for the private use of the property owner, was not a commercial venture and was to be used to provide electricity for the private property. Additionally, the Board noted that although it might become necessary for a township to specifically address the issue of wind turbines with particular ordinances in the future, at the present time the Township had no such specific provisions in its Ordinance. Therefore, the Board determined that the Township had acted properly on the information before it and the current Ordinance in issuing the zoning permit. The Board also noted that certain of the performance standards, i.e., setbacks for yards, buffers and noise levels, had been reviewed prior to issuing the zoning permit, and, thus, the Board concluded that the permit had been properly issued. The Association then filed a notice of appeal with the trial court and Mr. Heinrich filed an entry of appearance as an intervenor.

Before the trial court, the Association alleged that the Board erred in determining that the proposed use was an accessory use by determining that it was customary and incidental to the residential area. The Association asserted that the Board also erred in finding that the wind turbine was an "essential service" by concluding that it was a "public utility," one of the enumerated "essential services" found in the Ordinance. Finally, the Association asserted that the Board erred in concluding that accessory uses were not required to comply with the Ordinance's performance standards.

On April 27, 2009, after the submission of briefs and oral argument, the trial court denied the Association's appeal. The trial court noted that the Township Zoning Officer and the Board had both concluded that the proposed use was an acceptable accessory use and, thus, concluded that the proposed wind turbine had been properly characterized as an accessory use. The trial court noted that the Board was "best suited" to interpret the meaning of the Township's Ordinance and to determine how the Ordinance was to be applied. (R.R. at 348a). The trial court noted that it was bound to give "deference" to the Board regarding the interpretation of its own zoning ordinance. (R.R. at 359a). The trial court also noted ...


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