Oct 1, 2009 6 min read

The attorney for a company seeking to construct nearly two-dozen wind turbines on Chestnut Ridge told a Fayette County judge Tuesday that he believes the county zoning hearing board defied another judge’s order in denying special exception requests for eight turbines. Attorney Daniel Rullo told Judge Steve P. Leskinen that it is his belief that the zoning hearing board defied an order issued by Judge Ralph C. Warman when the board did not approve all of the requests for wind turbines the company was seeking.

Rullo is asking that Leskinen enforce Warman’s order, which he claims states that all the applicable requests for wind turbines should be granted.

Rullo represents Iberdrola Renewables, formerly known as PPM Atlantic Renewables of Portland, Ore., which has been working for more than two years to secure approval to construct the wind turbines on 3 1/2 miles of Chestnut Ridge in Wharton, Georges and Springhill townships.

The company went before the zoning hearing board for four days of testimony to seek special exceptions and variance requests for the turbines on Oct. 17 and 31, 2007; Dec. 19, 2007; and Jan. 30, 2008 before the board issued a denial on March 11, 2008.

The company subsequently appealed and Warman remanded the case back to the zoning board with instructions to grant approval of the request.

Upon remand, the zoning board unanimously approved a motion that granted special exceptions for 14 proposed wind turbines but denied special exceptions for eight wind turbines. The board also denied a variance from setback requirements for the eight turbines on which variances were requested. All of the proposed sites are located on property zoned A-1, agricultural rural.

Leskinen, who now has been assigned to hear the appeal of the zoning board’s decision by remand, allowed attorneys involved with the case to present more than two hours of oral arguments supporting their respective positions.

Rullo said the variance requests that were denied all were on property owners who participated in the project and they should have not been denied.

Leskinen said he didn’t see how there would be a problem granting a variance if an adjoining property owner is on board with the project, provided there is a stipulation in the deed informing future owners of the property of the project.

Rullo said he also objected to some conditions in the approval as unnecessary, such as requiring a 12-foot high fence, planting fast-growing conifers, installation of a bat-repellant device and a sound study.

When Leskinen asked if the zoning board has a right to set a section condition, Rullo said his company’s position is that it met the objective standards included in the ordinance.

Leskinen, who said he would not have assigned the case a new docket number and assigned it to a new judge, said he cannot change a ruling made by another judge without new facts or a change in the law.

Zoning board solicitor Gretchen Mundorff said she didn’t believe the board ignored Warman’s order.

The zoning board’s decision, which was made following a 25-minute executive session, is a 21-page document. Mundorff said the ruling was made at a public meeting after the board met in executive session. Mundorff said she prepared the resolution as counsel for the zoning board.

When Leskinen asked Mundorff why a variance from setbacks would be required if both property owners are in agreement, Mundorff said they are dealing with a “massive hulking structure” and there is a concern about the health, safety and welfare of the public if there is a failure in the tower if ice is thrown from the blades.

She suggested that hunters or workers in the area could be harmed.

The proposed wind turbines are 262.5 feet, and the blades are 145 feet long, for a total height of 407.5 feet.

Mundorff said the towers could have been moved to meet the setback requirements and were not because of concerns about profitability.

Leskinen said the towers have to be built on a ridge because that is where wind is prevalent.

Leskinen said people can choose to give up their rights to sue if something happens.

“The problem here is these things have a real possibility of killing people – failing or ice throw,” Mundorff said.

She said the board was compelled by law to deny the variances.

Addressing Rullo’s contention that some of the conditions weren’t necessary, Mundorff suggested that people could try to scale the wind turbines, and the zoning board requires others who seek approval to replant the area, such as strip mines.

Mundorff said any accusations by Rullo that the company couldn’t get a fair hearing are a “ruse” to mask the fact that it can’t meet the burden of proof in the ordinance to meet the requirements necessary for the variances.

“We believe they didn’t meet the burden,” Mundorff said.

Leskinen clarified with Mundorff that she isn’t a voting member of the board.

Rullo pointed out that Mundorff referred to the wind turbines as “hulking machines” and said the venue was not an unbiased tribunal as anybody who wanted to say anything had it put in the record.

Attorney Rich Bower, who represents property owner Neil Brown, also spoke during the proceedings. He said he agrees with Rullo’s position.

Attorney Gary Altman, who represents Thomas John Bozek III of Wymps Gap Road in Springhill Township, said he has issue with the fact that there was no additional testimony permitted after the zoning board made its initial ruling.

Altman said his client, whose property line is 300 feet from one of the towers, wasn’t permitted to testify about taking decibel readings. He also objected to a chart that was included in the record that shows that decibel readings away from a turbine are higher than right beside it.

Rullo said the company would meet the 70-decibel level at the property line requirement, adding that the company would not build a $100 million project just to be shut down for violating a condition in the zoning ordinance.

During the hearings before the zoning board, numerous people spoke on both sides of the request. Some neighbors, including Bozek, opposed the project, expressing concern about noise and other issues. The owner of Laurel Caverns in Georges Township expressed concerns about bat deaths.

Iberdrola then appealed the decision, ultimately leading to Warman’s reversal. One of the sticking points was the fact that the ordinance only allowed turbines with heights of 250 feet, and the industry standard is now 262.5 feet.

After hearing all applicable arguments, Leskinen gave attorneys 30 days to submit briefs in the case.