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In Re: Appeal of Broad Mountain

March 7, 2011

IN RE: APPEAL OF BROAD MOUNTAIN DEVELOPMENT COMPANY, LLC FROM THE DECISION OF THE BUTLER TOWNSHIP ZONING HEARING BOARD APPEAL OF: BROAD MOUNTAIN DEVELOPMENT COMPANY, LLC


The opinion of the court was delivered by: P. Kevin Brobson, Judge

Argued: December 6, 2010

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE KEITH B. QUIGLEY, Senior Judge

OPINION BY JUDGE BROBSON

Broad Mountain Development Company, LLC, (Developer) appeals from an order of the Court of Common Pleas of Schuylkill County (trial court), which affirmed an order of the Zoning Hearing Board of Butler Township (Board), revoking a zoning permit. The Developer sought to develop a wind turbine project (the Project) in a Woodland-Conservation (WC) Zoning District located in Butler Township (Township). More than one year after the Township's zoning officer (Zoning Officer) issued the zoning permit, neighboring landowners (Intervenors*fn1 herein) appealed the issuance of the permit. The Board revoked the permit, concluding that the permit had been improperly issued because a wind turbine project is not a permissible use. We now affirm the order of the trial court.

On February 4, 2008, Developer met with the Township's Zoning Officer to discuss a zoning application for the Project, which would encompass 20 to 28 wind turbines located in the northeast section of the Township in a WC Zoning District.*fn2 The wind turbines would be spread over eleven (11) acres in an east/west direction along the Ashland Mountain as it traverses over and along the Fountain Springs valley. Although the number of turbines and their heights were to be determined at a future time following "consultant study," it was clear that the height of the wind turbines would exceed the maximum height permitted in a WC Zoning District.

Despite the fact that the Butler Township Zoning Ordinance (the Zoning Ordinance) is silent as to wind turbines, containing no provisions allowing wind turbines as a use in any zoning district, the Zoning Officer approved a zoning permit application during the February 4, 2008 meeting. The Zoning Officer wrote the following proviso on the zoning permit: "for zoning purposes only. This type of activity is allowed in the applicable zoning district as per Section 501.4 . . . of [the Zoning Ordinance.]"*fn3 (Reproduced Record (R.R.) at 363a, 365a.) Section 501.4 sets forth exceptions to height regulations. The Zoning Officer noted on the application: "Zoning Permit Only. A wind energy facility is an allowable activity in a Woodland Conservation (WC) Zoning District per Section 501.4 . . . of the [Zoning Ordinance]." (Id.) It appears from the testimony of record that the Zoning Officer and Developer left the meeting with different understandings of what had been approved. Developer testified that he believed that development of a windmill farm operation had been approved. (R.R. at 291a.) The Zoning Officer testified that he was asked only to determine whether the height requirement was applicable to a windmill operation. (R.R. at 109a, 114a.) In fact, he intended his notation to "distinguish the height waiver that was granted from a zoning permit generally permitting uses identified under Section 401 [of the Zoning Ordinance]."*fn4 (R.R. at 348a.) For unknown reasons, the Zoning Officer failed to include the issuance of this permit on his report to the Board of Supervisors, so it was not made known even to them. (R.R. at 333a-39a, 348a.)

On June 13, 2008, Developer erected a meteorological tower (Met Tower), approximately sixty (60) meters in height, for the compilation of wind data as part of a feasibility study for the construction of the wind turbines. Developer situated the Met Tower in an area that it had cleared of trees and brush.

Photographs in the record reveal that due to the clearing of the trees and the height of the Met Tower, the mountainous construction site is visible from a number of locations in Butler Township. Appellees (the Township, Board, and Intervenors) note that Developer erected the Met Tower without having obtained a building permit.*fn5

On February 23, 2009, Developer filed a preliminary land development plan (Plan) for the Project, by which Developer sought approval of a road to allow access for the ultimate placement and construction of the then-determined twenty-seven (27) wind turbines. Developer paid a $20,213 fee to the Township for the review process. Developer revised and resubmitted the Plan twice based upon the Township engineer's comments. The Township's Planning Commission discussed the Plan at its meetings in March, April, and May 2009, and the Pottsville Republican Herald ran an article in its March 17, 2009, newspaper edition, discussing the Project. (R.R. at 366a.) The article, captioned "Butler Eyes Windmill Project," indicated that the Project was discussed at a recent Township Board of Supervisors' meeting and that several waivers (from the Township's Subdivision and Land Development Ordinance) were being considered. (Id.) The article did not indicate that a zoning permit or other approvals had been issued.

(Id.) Rather, the article noted that "the [P]roject is in the preliminary stages and the date of the construction of the windmills, if approved, was too far off to pin down." (Id.) Neighboring landowners appeared at the May 11, 2009, Planning Commission meeting.

On May 19, 2009, Appellee Kleeman filed with the Board an appeal of the zoning permit. On May 27, 2009, forty-seven (47) additional homeowners filed with the Board a joint appeal of the zoning permit. The Board dismissed thirty-four (34) of the homeowners for failure to appear at the hearings. The Board conducted hearings in June and July 2009, during which the Board received testimony from various landowners.

At the outset of the hearings, the Board, in an apparent attempt to move the hearing forward expeditiously, cautioned that it preferred not to hear repetitive comments in favor of or against the Project. (R.R. at 22a.) Rather, the Board preferred "those kinds of comments to be limited to one person who will present the comment on behalf of . . . the appellants here where there's a number of appellants." (Id.) Attorneys Anthony Urban and Brian Urban, who appeared to represent Intervenor Joseph Kleeman, agreed to represent (pro bono) the other Intervenors throughout the course of the proceedings. Thereafter, the Board proceeded to take testimony from eleven (11) individuals.

Upon conclusion of the hearings, the Board revoked Developer's zoning permit. The Board reasoned that Developer failed to timely construct the proposed wind turbines within the six (6) month permit expiration period; the zoning permit did not grant any zoning relief other than relief from the height limitations; and windmill farms are not permitted uses in the WC District. The Board also determined that nine (9) of the eleven (11) then-remaining objecting neighbors presented sufficient evidence to establish standing and that their appeals were timely.

Developer appealed to the trial court. The individuals dismissed by the Board for failure to appear filed an application to intervene, and the trial court granted intervention. The Board, Township, and Intervenors also intervened. The trial court considered (1) whether the application for leave to intervene filed on behalf of the individuals dismissed by the Board for failure to appear was proper, (2) whether the landowners had standing to appeal the granting of the zoning permit and whether their appeal was timely, and (3) whether the Board's decision constituted an error of law or a manifest abuse of discretion. The trial court concluded that intervention was improper, and it further concluded that eleven (11) landowners had standing, but only nine (9) of those landowners had filed a timely appeal. As to the merits, the trial court concluded that the Board properly revoked the zoning permit ...


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