The Legal Intelligencer

(by Anna Jewart and Blaine Lucas)

In recent years, public support for renewable energy generation has increased across the United States. According to a recent article published by the National Agricultural Law Center, 89% of Americans support expanding solar power generation and 83% support wind power expansion. See, Peggy Kirk Hall, Whitney Morgan and Jesse Richardson, “Land Use Conflicts Between Wind and Solar Renewable Energy and Agricultural Uses,” Nat’l Ag. Law Center (Jan. 10, 2022). National approval, however, often fails to translate into local support.  Those seeking to site wind or solar projects are frequently met with opposition from neighbors, many of whom may be generally supportive of renewable energy, but when it comes time to decide where generation will occur, they repeat the well-known adage, “Not in my back yard.” In fact, local objection to renewable projects frequently mirrors that which has been levied for decades against traditional energy development. Concerns over aesthetics, noise, storm water, or traffic can be expected whether an applicant proposes an oil and gas well or a wind farm. In either instance, broad concerns over impacts on the community often devolve into highly technical debates over compliance with not only the local ordinances, but the validity or reliability of different scientific methods or standards. As a result, zoning hearings on any energy project may become full-blown battles of the experts. In Atlantic Wind v. Zoning Hearing Board of Penn Forest Township, No. 585 C.D. 2020, No. 591 C.D. 2020, No. 20 C.D. 2021, No. 242 C.D. 2021, (Pa. Cmwlth. Jan. 12, 2022), the Pennsylvania Commonwealth Court considered whether a zoning hearing board properly handled competing expert testimony over what metrics to use in calculating maximum noise levels.

In 2013, Atlantic Wind, LLC (Atlantic Wind) entered into a lease with the Bethlehem Authority (authority), for property located in Penn Forest Township (the township). The lease granted Atlantic Wind the right to use approximately 5,000 acres of the authority’s property (the project area) for wind energy purposes. In 2015, Atlantic Wind filed an application for a special exception under the Township Zoning Ordinance (ordinance) to erect 28 wind turbines with access roads, appurtenant structures, and infrastructure, including a permanent meteorological tower.

On Jan. 30, 2019, the Township Zoning Hearing Board (board), following 10 public hearings, denied the application and concluded in part that Atlantic Wind failed to present evidence or sustain its burden of showing the project would comply with the ordinance’s noise level requirements. Both Atlantic Wind and the authority appealed to the trial court. The trial court consolidated the appeals and granted petitions to intervene to the township and 42 individual objectors (objectors.)  Without taking additional evidence, the trial court affirmed the board’s denial. Atlantic Wind and the authority appealed to the Commonwealth Court.

On appeal, Atlantic Wind asserted that the board had disregarded unrefuted record evidence that it would maintain sound levels in compliance with the ordinance, and that it erred in finding the ordinance mandated the use of a sound metric known as “Lmax.” Under the ordinance, Atlantic Wind was required to prove in relevant part that:

The design of the wind energy facility shall conform to applicable industry standards, including those of [ANSI] …

and …

The audible sound from the wind turbine(s) shall not exceed 45 A weighted decibels [(dBAs)], as measured at the exterior of an occupied dwelling on another lot …

At the hearings, Atlantic Wind presented an acoustical engineer as an expert witness, who testified that he conducted predictive modeling and issued a report which concluded the project would comply with the 45dBA limit. He testified that because the ordinance did not specify the use of a particular metric, he employed a metric known as “Leq,” because it was most common, and the industry standard. His testimony detailed his methods, his reasons for reliance on the Leq metric, and its acceptance by the scientific community as well as why another available metric, Lmax, was not appropriate. In contrast to the Leq metric, which measures average sound levels, Lmax measures the highest noise level.

The objectors presented their own expert in wind turbine acoustics and noise measurements who argued the Leq metric was not a proper metric to evaluate a “shall not exceed” noise ordinance, but that Lmax should be used instead. Following testimony on why Leq was improper, he testified he could ascertain the Lmax by adding 11dBAs to the Leq results, thereby concluding the project would in fact exceed the ordinance maximum of 45 dBAs.

On rebuttal, Atlantic Wind presented a second witness, this time a certified noise control engineer, who supported and affirmed Atlantic Wind’s original expert testimony and report, and explained that when an ordinance does not specify what the metric is, his professional experience would suggest using Leq. He further disagreed with the objectors’ expert’s method of obtaining an Lmax metric by adjusting the Leq by 11dBAs. In sum, he concluded with a reasonable degree of professional certainty that the Leq modeling accurately demonstrated the project would meet the ordinance standard. Ultimately, the board determined that the Lmax metric was the appropriate one to use under the ordinance, and Atlantic Wind had failed to produce evidence to meet its burden that the sound level would not exceed the requirements of the ordinance.

As acknowledged by the Commonwealth Court, the board was free to reject even uncontradicted expert testimony it found to be lacking in credibility, and it would not be an abuse of discretion to choose to believe the opinion of one expert over another. However, the board was required to provide an adequate explanation of its resolution of the factual questions involved at the hearing, and to show, through its written findings and conclusions, that its decision was well reasoned and not arbitrary. The court found several defects in the board’s findings and conclusions, noting, for example, that while it appeared the objectors’ expert testimony formed the basis of the board’s decision, it never made a written finding that he had ever appeared or testified at the hearings, let alone reconciled his testimony with that of the other experts. In addition, there were no findings relative to the rebuttal testimony at all.  Consequently, the court found the board had failed to provide any “explanation of its resolution of the factual questions involved,” as required by law.

Furthermore, the court observed that if the ordinance intended to apply the Lmax metric it could have stated so. As a result, the court concluded that the board’s application of the Lmax metric was not supported by law or record evidence and could not form the basis for denial of the application. The court relied largely on MarkWest Liberty Midstream & Resources v. Cecil Township Zoning Hearing Board, 102 A.3d 549 (Pa. Cmwlth. 2014), a case in which the court found that a zoning board, in considering a special exception application for a natural gas compressor station, had acted arbitrarily and abused its discretion by mandating requirements not set forth in the ordinance. As a result, the court vacated the board’s decision, and remanded it for the board to make the necessary credibility determinations and to explain its resolution of the factual questions regarding the noise metric.

Finally, the court also reversed the board’s decision on two ordinance interpretation issues. First, the court found that the board had erred in finding that the wind farm use would be an unlawful second principal use under the ordinance. Objectors had argued the project area was already used as a “government facility” in part because it was covered by a conservation easement intended to preserve the property to benefit the authority’s adjacent potable water reservoirs. Because “government facilities” were only permitted by special exception under the ordinance, and no such application had been granted by the board, the court found that the record did not support the finding that any other zoning use, let alone a principal use, existed in the project area. Second, the court found that the board erred in finding that the meteorological tower was also an unlawful second principal use, rather than an accessory use to the project. The court noted that not only had Atlantic Wind presented sufficient evidence that the tower was customary and incidental to the project, the board failed to recognize its own zoning officer’s opinion that the tower was an integral part of the overall project. The township and the objectors have filed an application for reargument. As of this writing, the court has not acted on that application.

Atlantic Wind, although an unreported case, holds educational value for all land use applicants, objector and decisionmakers. The case demonstrates the technical level with which the parties must be prepared to present their cases, and reminds zoning hearing boards and governing bodies that their decisions must be thoroughly discussed and supported in their written findings and conclusions. Atlantic Wind also may be a harbinger of the intense scrutiny and opposition renewable energy projects, much like traditional energy developments before them,  will encounter as the nation broadens its energy portfolio.

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Reprinted with permission from the February 10, 2022 edition of The Legal Intelligencer© 2022 ALM Media Properties, LLC. All rights reserved.