IN RE APPEAL OF BROAD MOUNTAIN DEVELOPMENT COMPANY LLC (Commonwealth Court of Pennsylvania, March 7, 2011).
On February 4, 2008, Developer met with the Township's Zoning Officer to discuss a zoning application for 20 to 28 wind turbines spread over eleven (11) acres in a Woodland-Conservation (WC) Zoning District. Despite the fact that the Township Zoning Ordinance was silent as to wind turbines, containing no provisions allowing wind turbines as a use in any zoning district, the Zoning Officer purportedly approved the zoning permit application. However, subsequent testimony indicated that the Zoning Officer and Developer left the meeting with different understandings of what had been approved.
On June 13, 2008, Developer erected a meteorological tower (Met Tower), approximately sixty (60) meters in height, for the compilation of wind data as part of a feasibility study for the construction of the wind turbines. Apparently, a building permit was not obtained. On February 23, 2009, Developer filed a preliminary land development plan (Plan) for the project, by which Developer sought approval of a road to allow access for the ultimate placement and construction of the then-determined 27 wind turbines. Developer paid a $20,213 fee to the Township for the review process. Developer revised and resubmitted the Plan twice based upon the Township engineer's comments. The Township's Planning Commission discussed the Plan at its meetings in March, April, and May 2009.
In May 2009, neighboring landowners filed with the Township Board an appeal of the zoning permit. Upon conclusion of the hearings, the Board revoked Developer's zoning permit. The Board reasoned that Developer failed to timely construct the proposed wind turbines within the six (6) month permit expiration period; the zoning permit did not grant any zoning relief other than relief from the height limitations; and windmill farms are not permitted uses in the WC District.
Developer appealed to the trial court. As to the merits, the trial court concluded that the Board properly revoked the zoning permit because the Zoning Officer had no authority to issue a zoning permit for a wind farm in a WC Zoning District. On appeal to the appellate court, Developer argued that the trial court and Board erred in determining that the neighbors had standing to appeal, and that the neighbors’ appeals were timely. The Developer also argued that it enjoyed a legally protected vested right in the zoning permit.
The appellate court determined that the neighbors had a substantial interest sufficient to confer standing based on the testimony regarding the health, welfare, and safety concerns of the project and their proximity to the project. The neighbors’ appeal was timely because they had no notice, knowledge, or reason to believe that the Zoning Permit had been approved by the Zoning Officer until May 11, 2009 (“It would be extreme to credit Developer's assertion that the erection of a single meteorological tower on nearly 1,100 acres (which does not bear the resemblance of a windmill turbine) and some minor clearing would somehow provide the public with notice that a zoning permit was granted for the placement of twenty-seven (27) wind turbines.”)
Finally, the appellate court stated that under Pennsylvania law, generally, a municipal permit issued illegally or in violation of the law, or under a mistake of fact, confers no vested right or privilege on the person to whom the permit has been issued, and it may be revoked notwithstanding that the person may have acted upon the permit. Any expenditures made in reliance upon such permit are made at the person's own peril. Moreover, every person is presumed to know the extent of power of the municipal authorities.
The appellate court did note an exception to the “no vested right” rule when there is (1) due diligence in attempting to comply with the law; (2) good faith throughout the proceedings; (3) the expenditure of substantial unrecoverable funds; (4) the expiration without appeal of the period during which an appeal could have been taken from the issuance of a permit; and (5) the insufficiency of evidence to prove that individual property rights or the public health, safety or welfare would be adversely affected by the use of the permit. However, due to the timely appeal by the neighbors, the Developer could not establish entitlement to a vested right.
Anthony Dorland
(612) 877-5258
DorlandA@moss-barnett.com