Agenda - Planning Commission - 03/02/2017

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January 25, 2017 I Volume 11 I Issue 2 Zoning Bulletin determined that the proposed wind turbine use was "not similar to or compati- ble with permitted uses in the district" —a criteria required for special excep- tion approval. EDF appealed the denial of its special exception application. The trial court denied EDF's appeal on the grounds that EDF failed to comply with the objec- tive criteria of the ordinance (i.e., the site plan), and failed to carry its burden of persuasion (as required by the ordinance), to demonstrate that the proposed use of wind turbines was similar to or compatible with the comprehensive plan for the Township. EDF again appealed. On appeal, EDF argued that "the ZHB capriciously disregarded evidence and thus erred in denying the special exception application." EDF argued that it presented sufficient evidence, in its applica- tion and through witness testimony at hearings on the application, to satisfy all applicable ordinance criteria for the grant of a special exception. More specifi- cally, EDF contended that it presented expert testimony regarding many details of the proposal, including the effect of the wind farm on neighboring property values and its compatibility with adjoining development and the character of the zoning districts. EDF emphasized that it submitted a 36? x 24? map with its application and that the map was used by witnesses to identify specific locations and geographical issues. EDF maintained that its evidence was not rebutted, and, therefore, the ZHB abused its discretion in denying the requested special exception. DECISION: Judgment of Court of Common Pleas affirmed. The Commonwealth Court of Pennsylvania held that EDF failed to satisfy the objective requirements for a special exception under the ordinance. In so holding, the court first explained that a special exception in a zoning ordinance is "not an exception to a zoning restriction, but, rather, a use that is expressly permitted." The zoning ordinance itself enumerates the "rules that determine the grant or refusal of the exception," noted the court. Here, the court noted that, per the Township's ordinance, EDF had the burden of proving that the proposed wind turbine use met the objective stan- dards set forth in the zoning ordinance. The court found that EDF failed to meet that burden because it did not file a detailed site plan, as required by the ordinance, and failed to show that the proposed use was similar to and com- patible with permitted uses in the district, as required by the ordinance. The court noted that EDF's failure to submit a site plan as required by the ordinance was, on its own, sufficient grounds to deny its special exception application. Addressing, and rejecting, EDF's arguments that the evidence presented at the hearings provided all of the information required by the ordinance for a special exception, the court noted that EDF's regional development manager had testified that: "the number of wind turbines and the precise location of the turbines and other details could not be determined until the soil was tested"; there was uncertainty as to "whether the wind turbines' connection to the substation would be underground or above ground"; and there was uncertainty as to the extent that existing roads could be used versus the need for the construction of new roads. Moreover, the court found that neither a map submitted by EDF with its application nor the testimony of EDF's witnesses 8 © 2017 Thomson Reuters