EDF Renewable Energy v. Foster Township Zoning Hearing Board
150 A.3d 538
| Pa. Commw. Ct. | 2016Background
- EDF Renewable Energy sought a special-exception permit to build ~25 wind turbines (≈525 ft tall), roads, collection cables, and a substation on properties in Foster Township zoned C-1, A-1, and I-1.
- The zoning officer denied the permit as not a permitted use; EDF applied to the Zoning Hearing Board (ZHB) for a special exception and submitted a large (36" x 24") generalized map and supporting testimony but not a detailed site plan conforming to Ordinance §255-52.
- The ZHB referred the matter to the township planning commission (which recommended denial), held hearings, and denied the special exception for (inter alia) failure to submit the §255-52 site plan and failure to prove the use is similar/compatible with permitted uses or the Comprehensive Plan.
- EDF filed a Notice of Land Use Appeal referencing the ZHB’s December 3, 2014 oral decision on January 2, 2015 and later filed a supplemental notice after the ZHB’s written decision was mailed January 5, 2015; the ZHB moved to quash as premature.
- The trial court affirmed the ZHB, finding EDF failed to comply with the objective site-plan requirements and failed to carry its burden to show similarity/compatibility; the Commonwealth Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether EDF’s January 2 appeal was premature | EDF argued the ZHB’s written decision is dated Jan 2 and instructed appeals within 30 days, and EDF later supplemented its filing | ZHB argued the appeal was premature because the ZHB’s written decision was not mailed until Jan 5 and appeals run from date of mailing/service | Court held appeal was not jurisdictionally defective: EDF’s supplemental notice cured any defect and the trial court did not err in denying quash |
| Whether ZHB erred in denying special exception for lack of evidence/site plan compliance | EDF argued testimony, exhibits, maps, and expert testimony provided sufficient evidence to satisfy ordinance criteria and the ZHB capriciously disregarded evidence | ZHB/Township argued EDF failed to meet its burden because it did not file the detailed site plan required by §255-52, nor request a waiver/extension, and key details (turbine locations/number, connections, contours, proximity to residences) were unspecified | Court held ZHB did not abuse discretion: failure to submit required site plan (or seek waiver) and lack of objective detail justified denial; substantial evidence supported ZHB findings |
| Whether ZHB abused discretion by rejecting evidence on impacts (property values, noise, wildlife) | EDF contended its witnesses and experts addressed impacts and objections, unrefuted | ZHB argued testimony lacked the objective, site-specific detail required to show compliance with ordinance standards | Court held ZHB did not abuse discretion; general testimony and a generalized map did not satisfy ordinance’s objective site-plan and compatibility requirements |
Key Cases Cited
- Magyar v. Zoning Hearing Board of Lewis Township, 885 A.2d 123 (Pa. Cmwlth. 2005) (procedural precedent on appeal timing from zoning bodies)
- Snyder v. Zoning Hearing Board of Warminster Township, 782 A.2d 1088 (Pa. Cmwlth. 2001) (appeal timing and requirement to file within 30 days after entry)
- Broussard v. Zoning Board of Adjustment of Pittsburgh, 831 A.2d 764 (Pa. Cmwlth. 2003) (explaining nature of special exceptions and the board’s fact-finding function)
- Bray v. Zoning Board of Adjustment, 410 A.2d 909 (Pa. Cmwlth. 1980) (applicant bears burden to prove special-exception standards)