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Ppm Atlantic Renewable v. Fayette County Zoning Hearing Board

May 3, 2011

PPM ATLANTIC RENEWABLE
v.
FAYETTE COUNTY ZONING HEARING BOARD, NEIL BROWN AND THOMAS J. BOZEK APPEAL OF: THOMAS J. BOZEK



The opinion of the court was delivered by: Robert Simpson, Judge

Argued: April 4, 2011

BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION

BY JUDGE SIMPSON

In this complex zoning case, we confront the impact of an objector's failure to either appeal from or satisfy an order to post bond as a condition of continuing with an appeal from the trial court's decision on the merits.

Thomas J. Bozek (Objector) asks whether the Court of Common Pleas of Fayette County (trial court) erred in reversing a decision of the Fayette County Zoning Hearing Board (ZHB).*fn1 After an initial remand to the ZHB, the trial court granted PPM Atlantic Renewable's (Applicant) requests for numerous special exceptions and setback variances, subject to certain modified conditions, so as to allow Applicant to construct its proposed wind energy project. Objector appealed both the trial court's remand decision and its decision granting Applicant's requests for relief.*fn2

After Objector's appeals to this Court, the trial court granted Applicant's motion requesting that Objector post a bond as a condition to continuing with his appeals. It is undisputed that Objector did not file an appeal from, or comply with, the trial court's order imposing the bond. As a result, Applicant filed a motion to quash Objector's appeal on the merits based on Objector's failure to appeal or comply with the trial court's bond order. For the reasons that follow, we grant Applicant's motion to quash.

In September 2007, Applicant filed numerous applications with the ZHB requesting special exceptions and dimensional variances to permit construction of a wind power facility known as the South Chestnut Windpower Project in southern Fayette County. The proposed project spans approximately three-and-a-half miles of the Chestnut Ridge in Wharton, Georges, and Springhill Townships.

In total, 22 of the 24 proposed wind turbines are located in Georges and Springhill Townships. Because neither of those townships have their own zoning ordinances, the proposed turbines that lie within those townships are subject to the Fayette County Zoning Ordinance (zoning ordinance).*fn3

The zoning ordinance in existence at the time Applicant submitted its requests permitted a "windmill/wind turbine" by special exception in the County's A-1 Agricultural Rural Zoning Districts. See Section 100-203(B) of the zoning ordinance, Table 1 (Non-residential).

Additionally, Section 1000-876 of the zoning ordinance contains 13 criteria that an applicant must satisfy to obtain a special exception for a windmill/wind turbine. One criterion requires a minimum setback from any lot line of 100% of a turbine's height. Section 1000-876(D) of the zoning ordinance. Also, Section 1000-876(N) of the zoning ordinance grants the ZHB authority to attach conditions on the grant of a special exception for a windmill/wind turbine in order to protect the public health, safety and welfare, including the right to impose increased setbacks.

After hearings, the ZHB denied Applicant's requests in their entirety. Applicant appealed to the trial court.

Applicant's appeal was assigned to Judge Ralph C. Warman (first trial judge), who ultimately remanded to the ZHB. The first trial judge ordered the ZHB to consider the existing record and to grant each special exception as required by law and impose any condition needed to protect the public health, safety and welfare. The first trial judge also directed the ZHB to properly consider Applicant's requests for dimensional variances.

Thereafter, the ZHB issued a second decision in which it: (1) granted (as de minimis) Applicant's request for variances from the height restrictions for all 22 turbines; (2) denied Applicant's requests for variances from the setback requirements for eight of the 22 towers; (3) denied Applicant's special exception requests for these eight towers based on the denial of the requested setback variances; and, (4) granted Applicant's special exception requests for the remaining turbines, subject to seven conditions. One attached condition requires Applicant to increase the minimum setbacks for its turbines to 500 feet from roadways and 425 from all property lines.

Applicant again appealed to the trial court, asserting, among other things, the ZHB erred by denying its requests for dimensional variances from the setback requirements for the eight turbines, by denying the corresponding eight special exceptions, and by imposing unreasonable conditions. The trial court, through Judge Steve P. Leskinen (second trial judge), ultimately agreed with the majority of Applicant's contentions.*fn4

After entry of the order sustaining Applicant's land use appeal, but prior to Objector's appeal to this Court, Applicant filed a motion for bond with the trial court. Objector filed an answer and a motion to strike Applicant's request. Objector also filed two notices of appeal with this Court. The first notice of appeal sought review of the second trial judge's order sustaining Applicant's ...


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