Tioga Preservation Group v. Tioga County Planning Commission
Pennsylvania Commonwealth Court
970 A.2d 1200 (2009)
In September 2007, AES Armenia Mountain Wind, LLC (AES) applied to the Tioga County Planning Commission (the commission) (defendant) for approval to build a large wind farm located in part in Tioga County (the county). AES had chosen a proposed project site on a mountain where the wind was strong and unobstructed and had executed option agreements to lease over 4,000 acres of land. The option agreements provided that the agreements created valid and present property interests in favor of AES that were deemed binding encumbrances on the properties. The agreements also granted AES exclusive easements during the option period so that AES could enter the properties to assess the properties’ suitability for the proposed wind farm. The proposed wind farm consisted of up to 124 wind turbines, two substations, transmission lines, roads, and an operations-and-maintenance building. A county ordinance required that natural screening or fencing be used to shield industrial developments from residential properties or other incompatible uses. However, AES sought a waiver of the screening requirement, asserting that screening would not be feasible because the wind turbines were over 200 feet tall. AES claimed it planned to comply with setback requirements that would help shield homes near the project from viewing the wind turbines. Tioga Preservation Group and other individuals (collectively, Tioga Preservation) (plaintiffs) objected to AES’s application, but the commission approved AES’s application and waiver request. Tioga Preservation filed a land-use appeal in a Pennsylvania trial court, asserting that (1) AES was merely a proposed future leaseholder under the option agreements and thus did not have the necessary ownership interest in the properties to be a proper applicant for the wind-farm development under the Pennsylvania Municipalities Planning Code (MPC), and (2) AES had not provided the commission with sufficient information to evaluate AES’s inability to comply with the screening ordinance. The trial court rejected Tioga Preservation’s arguments and upheld the commission’s decision. Tioga Preservation appealed.
Rule of Law
Holding and Reasoning (Friedman, J.)
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