In Re Broad Mountain Development Co., LLC
17 A.3d 434
| Pa. Commw. Ct. | 2011Background
- Developer sought to develop a 20–28 wind turbine project in a WC District; zoning permit issued by the Zoning Officer despite silence on wind turbines as a permitted use.
- Zoning Officer noted Section 501.4 height exemptions and indicated the permit was for zoning purposes only, leading to confusion about what was approved.
- Met Tower (60 meters) erected on June 13, 2008 for wind data without a building permit, visible from multiple locations.
- Preliminary land development plan filed February 23, 2009; surrounding neighbors appealed; hearings held in mid-2009 leading to Board revocation of the permit.
- Trial court addressed standing, timeliness, and merits; held intervention improper, nine of eleven intervenors had timely appeals, and permit was revokeable because wind farm use not permitted in WC and permit authority was lacking.
- Appellant argues vested rights, but this is defeated by timely appeals and lack of authority for the permit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing of Intervenors to appeal | Intervenors had substantial, direct, immediate interests due to proximity and health/safety concerns. | Intervenors lack a substantial property interest; aesthetics-only objections. | Intervenors have standing. |
| Timeliness of Intervenors' appeals | Appeals timely due to lack of notice; constructive notice not proven by Met Tower. | Appeals untimely; constructive notice existed earlier. | Most appeals timely; John and James Whitcomb deemed not timely. |
| Authority to issue zoning permit for wind farm in WC District | Zoning Officer had authority to issue permit under Section 501.4 and related provisions. | Wind turbine use not permitted in WC; permit invalid for those uses. | Zoning Officer had no authority to issue a wind-farm permit; Board correct in revoking. |
| Vested rights in the zoning permit | Developer has vested rights based on permit reliance. | Vested rights may accrue despite illegality. | No vested rights due to timely appeals under Beecham; consideration unnecessary. |
| Constructive notice via Met Tower or other events | Construction events could provide constructive notice. | No constructive notice; only May 11, 2009 planning activity triggered notice. | Met Tower did not provide constructive notice; Appeals timely except as noted. |
Key Cases Cited
- Laughman v. Zoning Hearing Bd. of Newberry Twp., 964 A.2d 19 (Pa.Cmwlth.2009) (aggrieved status requires substantial, direct interest)
- Pilchesky v. Doherty, 941 A.2d 95 (Pa.Cmwlth.2008) (substantial interest required for standing)
- William Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168 (Pa. 1975) (aggrieved party must have immediate injury)
- Miller v. Upper Allen Twp. Zoning Hearing Bd., 112 Pa.Cmwlth. 274 (Pa.Cmwlth.1987) (aesthetic objections cannot substitute substantial interest)
- Beecham Enters., Inc. v. Zoning Hearing Bd. of Kennedy Twp., 530 Pa. 272 (Pa. 1992) (timeliness requires timely appeal; vested rights analysis limited when timely appeal)
- Berryman v. Wyoming Borough Zoning Hearing Bd., 884 A.2d 386 (Pa.Cmwlth.2005) (notice is not always required; 30-day period tolled by lack of notice)
- Haaf v. Zoning Hearing Bd. of Twp. of Weisenberg, 625 A.2d 1292 (Pa.Cmwlth.1993) (objectors must prove lack of notice to toll 30-day period)
- Schoepple v. Lower Saucon Twp. Zoning Hearing Bd., 624 A.2d 699 (Pa.Cmwlth.1993) (timeliness depends on notice timing and knowledge)
- Petrosky v. Zoning Hearing Bd. of Twp. Upper Chichester, 402 A.2d 1385 (Pa. 1979) (factors for vested rights in improperly issued permits)
- Dpt. of Envtl. Resources v. Flynn, 344 A.2d 720 (Pa.Cmwlth.1975) (vested-right analysis sometimes applicable but not when timely appeal)