Opinion
No. 1431 C.D. 2010
03-11-2015
PPM Atlantic Renewable v. Fayette County Zoning Hearing Board, Neil Brown and Thomas J. Bozek Appeal of: Thomas J. Bozek
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
In response to the petition for allowance of appeal filed by PPM Atlantic Renewable (Applicant) from this Court's May 2014 opinion and order, our Supreme Court, "remanded to the Commonwealth Court for the preparation of a supplemental opinion providing its reasoning underlying its denial of relief with respect to [Applicant's] claims that the [Court of Common Pleas of Fayette County (trial court)] abused its discretion in striking and/or modifying special exception conditions 1-4." PPM Atl. Renewable v. Fayette Cnty. Zoning Hearing Bd. (Pa., No. 360 WAL 2014, filed December 30, 2014). This supplemental opinion responds to the issues identified by the Supreme Court.
Background
The extensive procedural and factual background to this complex matter, which involves Applicant's proposal to construct 24 wind turbines (22 of which are at issue in this litigation) in connection with its proposed wind energy project, is found in our May 2014 opinion. See PPM Atl. Renewable v. Fayette Cnty. Zoning Hearing Bd. (Pa. Cmwlth., No. 1431 C.D. 2010, filed May 20, 2014), 2014 WL 2156744 (unreported).
Relevant here, after a remand, the Fayette County Zoning Hearing Board (ZHB) issued a decision in which it: (1) granted Applicant's request for variances from the height restrictions for all 22 turbines; (2) denied Applicant's requests for variances from the setback requirements for eight of the 22 towers; (3) denied Applicant's special exception requests for these eight towers based on the denial of the requested setback variances; and, (4) granted Applicant's special exception requests for the remaining turbines, subject to seven conditions.
Conditions 1 through 4 imposed by the ZHB, which are now at issue, required Applicant to: (1) construct a chain-link fence around the base of each turbine; (2) re-vegetate forest land that Applicant disturbed during construction; (3) undertake several detailed measures to protect the bat population in the area; and, (4) conduct sound studies after the turbines become operational.
Applicant filed a land use appeal to the trial court, challenging: the ZHB's denial of its requests for dimensional variances from the setback requirements for the eight turbines; the ZHB's denial of the corresponding eight special exceptions; and, the ZHB's imposition of conditions. As to its challenge to conditions 1-4, Applicant asserted:
34. In this case, Conditions 1-5[] are manifestly unreasonable, unsupported by the record, improperly based on broad policy statements, are so onerous as to bar the permitted use and are otherwise contrary to law and/or outside the [ZHB's] jurisdiction or authority. These conditions therefore constitute abuse of discretion and error of law.Reproduced Record (R.R.) at 24a-25a, Certified Record, Tr. Ct. Dkt. No. 2009 of 2009 G.D., Item #1, PPM Atlantic Renewable's Notice and Appeal of the Decision After Remand of the Fayette County Zoning Hearing Board Dated June 29, 2009 at 10-11 (footnote added).
35. Moreover, no evidence of record indicates that any of the alleged problems purportedly addressed by Conditions 1-5 are abnormal for a windmill development or that such problems would occur more than normal in connection with the windmill development in this case.
36. The [ZHB] erred as a matter of law and abused its discretion in imposing Conditions 1-5 without evidentiary support and expressions of fear and speculation as well as evidence that the [trial court] found to be mere speculation in its Opinion of April 30, 2009.
37. Condition 2 requiring revegetation of forest land with fast growing conifers is beyond the [ZHB's] authority and does not serve any proper zoning purpose. The condition inures to the benefit of the private landowners of the property and not to the public. It is therefore a clear error of law and abuse of discretion.
38. Condition 3 requiring an elaborate protocol on bat conservation is speculative and not supported by credible evidence to require curtailment of operations as arbitrarily imposed.
Condition 5, relating to increased setbacks, which we addressed in our May 2014 opinion, is not now at issue.
Notably, the certified record contains no brief filed by Applicant in the trial court in support of its land use appeal. Also, our review of the corresponding docket sheet reveals no entry that indicates Applicant filed a brief before the trial court. Thus, aside from the five conclusory assertions set forth in Applicant's land use appeal, there is no indication on this record that Applicant presented any developed argument challenging conditions 1-4 before the trial court.
Further, on February 17, 2015, a Commonwealth Court staff member spoke with the chambers of the trial judge who issued the decision regarding conditions 1-4, Judge Steve P. Leskinen. The purpose of this communication was to ascertain whether the trial court had copies of any briefs that addressed conditions 1-4 imposed by the ZHB. Judge Leskinen's Chambers indicated it did not have any briefs that covered the issues identified in the Supreme Court's remand order.
Ultimately, the trial court, through Judge Steve P. Leskinen issued an opinion and order in which it determined the ZHB erred in denying Applicant's request for variances from the zoning ordinance's setback requirements. Based on its grant of the dimensional variances from the setback requirements, the trial court determined the ZHB erred in denying Applicant's request for special exceptions for the remaining eight towers as Applicant satisfied all other special exception criteria. Finally, as to Applicant's challenge to the ZHB's special exception conditions, the trial court struck conditions 1 (fencing), 2 (re-vegetation) and 4 (sound studies). As to condition 3 (bat protection measures), which contained five subsections, the trial court struck and modified certain parts of that condition, but declined to alter a large portion of the condition.
Thomas J. Bozek (Objector) filed an appeal to this Court. Significant for current purposes, Applicant filed no cross-appeal from that portion of the trial court's order that was adverse to it, i.e., the trial court's decision to leave intact most of the detailed bat protection measures set forth in condition 3. Thereafter, this Court issued a 41-page opinion in which we reversed the trial court's order and reinstated the ZHB's decision after remand.
As we explained in our May 2014 opinion, Objector actually filed two notices of appeal with this Court, one challenging the trial court's initial order remanding the matter to the ZHB and the other challenging the trial court's second order granting Applicant's requests for relief. A single judge of this Court quashed Objector's appeal of the remand order on the ground that Objector's appeal of the second trial court's order subsumed all of the issues Objector sought to raise regarding the first trial judge's remand order.
Applicant filed a petition for allowance of appeal to the Supreme Court. In response, the Supreme Court issued the following order:
AND NOW, this 30th day of December, 2014, this matter is REMANDED to the Commonwealth Court for the preparation of a supplemental opinion providing its reasoning underlying its denial of relief with respect to [Applicant's] claims that the trial court abused its discretion in striking and/or modifying special exception conditions 1-4. This Order shall not be construed as an approval of the Commonwealth Court's reasoning or a ruling on the merits.PPM Atl. Renewable v. Fayette Cnty. Zoning Hearing Bd. (Pa., No. 360 WAL 2014, filed December 30, 2014). Thus, this matter is now before us for preparation of a supplemental opinion on the issues identified by our Supreme Court.
Jurisdiction retained.
Discussion
At the outset, we view the scope of the Supreme Court's remand order to entail only preparation of a supplemental opinion that responds to the issues identified. As to those issues, we offer the following reasons underlying our denial of relief regarding Applicant's claims that the trial court abused its discretion in striking and/or modifying special exception conditions 1-4.
Waiver
First and foremost, in its 52-page brief to this Court, Applicant presented no clear, developed argument regarding the issues identified by the Supreme Court. Namely, Applicant offered no developed argument challenging the propriety of conditions 1-4, which relate to construction of fencing around the base of the turbines, re-vegetation of disturbed forest land, bat protection measures and sound studies. Similarly, with the exception of one very minor issue regarding the language of condition 3(e), which we discussed in footnote 7 on page 28 of our May 2014 opinion, Applicant presented no developed argument regarding the propriety of conditions 1-4. And, the ZHB filed no brief before this Court. Further, there is no indication in the certified record transmitted to this Court that Applicant or any other party sufficiently developed these issues before the trial court.
Rather than challenging the propriety of conditions 1-4, as set forth in detail in our May 2014 opinion, in its brief to this Court, Applicant asserted: (1) this Court should quash Objector's appeal for failure to comply with or appeal from the trial court's order requiring Objector to post a bond in connection with his appeal to this Court; (2) Objector did not properly preserve the issues he sought to raise in his appeal to this Court; (3) the trial court properly reversed the ZHB's initial denial of the requested special exceptions; and, (4) the trial court properly reversed the ZHB's denial of the requested dimensional variances.
Specifically, as set forth in its Counter-Statement of Questions Involved, Applicant raised and briefed the following four issues:
1. WHETHER [OBJECTOR'S] APPEAL TO THIS COURT SHOULD BE QUASHED WHERE [OBJECTOR] FAILED TO POST SECURITY AS REQUIRED BY FINAL ORDER OF THE TRIAL COURT AND FAILED TO APPEAL THE FINAL ORDER?Br. of Appellee PPM Atl. Renewable at 2.
2. WHETHER [OBJECTOR] FAILED TO PRESERVE ISSUES RAISED IN THIS APPEAL WHERE [OBJECTOR] DID NOT RAISE THEM BEFORE THE TRIAL COURT?
3. WHETHER THE ZONING HEARING BOARD ABUSED ITS DISCRETION AND COMMITTED ERRORS OF LAW IN DENYING THE WIND TURBINE SPECIAL EXCEPTIONS WHERE THE EVIDENCE SHOWED THE ORDINANCE'S SPECIAL EXCEPTION CRITERIA WERE MET AND DID NOT SHOW ANY DETRIMENT TO PUBLIC HEALTH, SAFETY AND WELFARE?
4. WHETHER THE ZONING HEARING BOARD ABUSED ITS DISCRETION AND COMMITTED ERRORS OF LAW IN DENYING THE DIMENSIONAL VARIANCES WHERE THE EVIDENCE SHOWED THEY WERE NEEDED TO PREVENT UNNECESSARY HARDSHIP?
In light of Applicant's failure to present any developed argument concerning conditions 1-4 it is unclear how Applicant preserved any of these issues. See Samuel-Bassett v. Kia Motors Am., Inc., 34 A.3d 1 (Pa. 2011) (appellee's failure to address or develop assertions in the body of the brief results in waiver); Hanisco v. Twp. of Warminster, 41 A.3d 116 (Pa. Cmwlth. 2012) (appellees' failure to raise issue in briefs results in waiver).
Of further note regarding the waiver issue, as Applicant's brief to this Court acknowledged, because the parties presented no additional evidence after the ZHB's decision, our review is limited to determining whether the ZHB committed an abuse of discretion or an error of law. Br. of Appellee PPM Atl. Renewable at 1, 20. Despite this acknowledgement, Applicant offered no argument as to how the ZHB abused its discretion in imposing conditions 1-4. Nor did Applicant present any argument concerning the trial court's decision to strike or modify these conditions.
The lack of useful arguments by any party severely burdens our review of the propriety conditions 1-4. Nevertheless, in an effort to comply with our mandate we offer the following analysis concerning the conditions imposed by the ZHB, which the trial court struck or modified.
Propriety of Conditions 1-4
To that end, even if Applicant preserved its claims concerning that portion of the trial court's opinion that struck or modified conditions 1-4, we would leave intact the conditions imposed by the ZHB, as the trial court exceeded its authority in striking or modifying these conditions.
Pursuant to Section 912.1 of the Pennsylvania Municipalities Planning Code (MPC): "In granting a special exception, the board may attach such reasonable conditions and safeguards, in addition to those expressed in the ordinance, as it may deem necessary to implement the purposes of this act and the zoning ordinance." See also Sections 1000-801(C) and 1000-876 of the Fayette County Zoning Ordinance (zoning ordinance). In turn, the primary purpose of the MPC is to "protect and promote safety, health and morals ...." Section 105 of the MPC, 53 P.S. §10105. Similarly, Section 1000-876(N) of the zoning ordinance, which sets forth the special exception criteria for windmills/wind turbines, expressly permits the ZHB to "attach additional conditions ... in order to protect the public's health, safety and welfare." Id.
Act of July 31, 1968, P.L. 805, added by Act of December 21, 1988, P.L. 1329, as amended, 53 P.S. §10912.1.
Further, as we explained in our May 2014 opinion:
[T]he ability to impose a condition on a special exception is not unfettered. Conditions must be reasonable and must find support in the record warranting the imposition of such conditions; otherwise, the imposition of conditions constitutes an abuse of discretion. Sabatine v. Zoning Hearing Board of Washington Township, 651 A.2d 649, 655 (Pa. Cmwlth. 1994). '[T]he Board is not required to support the imposition of conditions; rather, the opposite is true-property owners are required to show that the imposition of conditions was an abuse of discretion.' Leckey v. L. Southampton Twp. Zoning Hearing Bd., 864 A.2d 593, 596 (Pa. Cmwlth. 2004).FN10
10 In Leckey, this Court described the standard of review of conditions attached to the grant of a special exception as follows:
... a court reviews a challenge to the reasonableness of those conditions; it does not determine whether there is substantial evidence, which is a 'fact standard,' but whether those conditions constitute an abuse of discretion.
PPM Atl. Renewable v. Fayette Cnty. Zoning Hearing Bd. (Pa. Cmwlth., No. 1431 C.D. 2010, filed May 20, 2014), slip op. at 24-25, 2014 WL 2156744 at *12-13 (unreported) (quoting Coal Gas Recovery, L.P. v. Franklin Twp. Zoning Hearing Bd., Greene Cnty., 944 A.2d 832, 838-39 (Pa. Cmwlth. 2008) (emphasis added)); see also HHI Trucking, Inc. v. Borough Council of Borough of Oakmont, 990 A.2d 152 (Pa. Cmwlth. 2010) (reasonable conditions are those that advance a valid zoning interest and are supported by record evidence).
Id. at 596. As explained in several other cases, the imposition of a condition when there is no evidence in the record to support the condition is manifestly unreasonable and an abuse of discretion. See Berger v. Zoning Hearing Board of the Borough of Mifflinburg, 482 A.2d 1184 (Pa. Cmwlth. 1984); Abernathy v. Zoning Hearing Board of Hampton Township, 546 A.2d 1311 (Pa. Cmwlth. 1988); Sabatine, supra.
Condition 1: Construction of Fencing
As to condition 1, the ZHB stated that prior to the operational status of each wind turbine, Applicant shall construct a 12-foot chain-link fence surrounding the perimeter of the base of each wind turbine, which shall be locked at all times. The ZHB explained: "This condition is being placed in an effort to mitigate a potential that the wind turbines will become 'attractive nuisances[.]'" ZHB Op., 6/29/09, at 18. The record supports the ZHB's imposition of this condition.
To that end, Applicant's witness, Samuel Enfield, Development Director of the Mid-Atlantic Region for PPM Atlantic Renewable, provided testimony that people generally "come to see" wind turbines. R.R. at 110a, ZHB Hr'g, Notes of Testimony (N.T.), 10/31/07, at 102. He stated:
Tourism is actually -- we generally have to provide a way for people to get off the road to see the turbines, lest they become a traffic hazard, because people come to see these things. ... I think it will actually be an asset to drawing people up onto Skyline Drive to see these things, and we'll need to find a place where we can provide a pull-out, where they can pull off the road, because they will come.R.R. at 109a-110a, N.T. at 101-03, 104, 105 (emphasis added). Thus, Applicant's own witness testified that people generally come to see wind turbines and will pull off the road and leave their vehicles in order to get a better look at the turbines. Id. In light of this testimony, which indicates that the wind turbines attract people, no abuse of discretion is apparent in the ZHB's imposition of a condition that Applicant erect fencing around the base of each turbine so as to mitigate the potential that the turbines would become attractive nuisances. In order to successfully challenge the attached condition, Applicant bore the burden of proving the ZHB abused its discretion in imposing the condition. Coal Gas Recovery; Leckey. Because the record supports the ZHB's imposition of condition 1, the trial court exceeded its authority in striking it.
If you ask Bob Willis, who has four of the turbines at the Somerset Project, he says there's a bus coming through once a week. And he's out there again and again responding to people. So, these things are of interest. ... All I can say is people respond to these things in very positive ways. ...
[Y]ou'll be able to get close to these turbines down on Skyline Drive or up Wympsgap Road or going up Mud Pike. And people will drive up there. ...
So, if you provide a little area where they can pull off to get a nice view, maybe some information, (a) you get them off the road, and that's important because they're a traffic hazard; and (b) they don't need to go trespassing. So, it really works for the landowners' protection. It works for public safety, and it gives people a way to get there and see them and learn something about [the turbines]. And it's very common in the industry.
In striking condition 1, the trial court opined that a chain-link fence "would actually create more of an 'attractive nuisance' than the [turbines]—since it is relatively easy to climb on or cut through a chain link fence, and it would be exponentially more difficult to climb or cut into the turbine tower itself." Tr. Ct., Slip Op., 6/18/10, at 21. Thus, the trial court stated condition 1 was intended to prevent a harm for which there is no record evidence.
Contrary to the trial court's statement, the record supports the ZHB's imposition of condition 1 in light of the testimony of Applicant's own witness. Based on the express purposes of the MPC and the zoning ordinance, to protect and promote public health and safety, we discern no abuse of discretion in the ZHB's decision to attach a condition requiring Applicant to construct a chain-link fence around the base of the turbines to mitigate the potential that the turbines would become attractive nuisances. Moreover, the trial court offered no record support for its statement that a chain-link fence would create more of an attractive nuisance because it is relatively easy to climb on or cut through, and it would be exponentially more difficult to climb or cut into the turbine itself.
Condition 2: Re-vegetation of Disturbed Forest Land
Through the imposition of condition 2, the ZHB required that, after the erection of each turbine, Applicant shall re-vegetate the forest land that was disturbed for purposes of creating ingress and egress to the construction site and for the construction of the turbines. The ZHB required that Applicant plant fast growing conifers during the earliest planting season after construction of each turbine in order to re-vegetate the disturbed forest land.
The ZHB also required Applicant to maintain an access road to each turbine for purposes of maintenance and safety. The trial court did not address this aspect of condition 2.
The trial court struck this condition on the grounds that the re-vegetation of private property outside of a residential development is not normally a matter for public concern, and that the Department of Environmental Protection (DEP), not the ZHB, has authority over removal of vegetation of privately-owned forest land. For the reasons set forth below, the trial court exceeded its authority in striking condition 2.
A ZHB is permitted to impose reasonable conditions on the use of a property to mitigate any potential adverse impacts from the proposed use. Feldman v. Bd. of Supervisors of E. Caln Twp., 48 A.3d 543 (Pa. Cmwlth. 2012). Thus, the proper function of conditions is to reduce the adverse impact of a use allowed under a special exception. Id. Further, a ZHB may attach conditions to the grant of a special exception as it may deem necessary to implement the purposes of the MPC and the zoning ordinance. 53 P.S. §10912.1. In turn, one of the stated purposes of the zoning ordinance here is "[t]o protect the environment of the County by giving special attention to preserving and promoting the County's natural assets, such as woodlands ...." Section 1000-102(A)(5) of the zoning ordinance (emphasis added).
The ZHB recognized these principles in its decision, stating that in considering the requested special exceptions, it could consider, among other things, the effect of the proposed use on "existing environmental conditions" as well as any "conflict with the general character and intensity of development of the area." See ZHB Op., 6/29/09, at 15, Concl. of Law No. 3. In an effort to mitigate the impact on disturbed forest land created by construction of Applicant's proposed turbines, the ZHB imposed a condition requiring Applicant to re-vegetate disturbed forest land. No abuse of discretion is apparent in the ZHB's imposition of condition 2, which serves to reduce the adverse impact of the proposed special exception use on existing forest land.
In striking condition 2, the trial court stated the protection of forest land is a matter for DEP, and the zoning ordinance already requires Applicant to adhere to the Pennsylvania Handbook of Best Management Practices. The trial court stated, to the extent condition 2 was inconsistent with DEP regulations, it was unreasonable. Thus, although not expressly stated, it appears the trial court struck this condition, in part, based on a preemption rationale. Despite the trial court's apparent allusion to an issue of preemption, it offered no analysis or explanation of the basis of its purported preemption conclusion.
As to the issue of preemption, our Supreme Court explains:
[T]he mere fact that the General Assembly has enacted legislation in a field does not lead to the presumption that the state has precluded all local enactments in that field; rather, the General Assembly must clearly evidence its intent to preempt. Such clarity is mandated because of the severity of the consequences of a determination of preemption: If the General Assembly has preempted a field, the state has retained all regulatory and legislative power for itself and no local legislation in that area is permitted. This Court has determined that the General Assembly has evidenced a clear intent to totally preempt local regulation in only three areas: alcoholic beverages, anthracite strip mining, and banking.Hoffman Mining Co., Inc. v. Zoning Hearing Bd. of Adams Twp., Cambria Cnty., 32 A.3d 587, 593-94 (Pa. 2011) (emphasis added) (citations and quotations omitted).
There are three generally recognized types of preemption: (1) express or explicit preemption, where the statute includes a preemption clause, the language of which specifically bars local authorities from acting on a particular subject matter; (2) conflict preemption, where the local enactment irreconcilably conflicts with or stands as an obstacle to the execution of the full purposes of the statute; and (3) field preemption, where analysis of the entire statute reveals the General Assembly's implicit intent to occupy the field completely and to permit no local enactments. Both field and conflict preemption require an analysis of whether preemption is implied in or implicit from the text of the whole statute, which may or may not include an express preemption clause.
Here, the trial court did not identify any express statutory preemption clause, the language of which specifically bars local authorities from acting on a particular subject matter. Thus, although not entirely clear, it appears the trial court's preemption conclusion was premised on field or conflict preemption. Both of these types of preemption require an analysis of whether preemption is implied in or implicit from the text of the whole statute, which may or may not include an express preemption clause. Id. Here, the trial court performed no such analysis. Further, the trial court identified no inconsistency between condition 2 and any statutory provision. Thus, to the extent the trial court struck condition 2 on the basis of preemption, its analysis is clearly insufficient. Moreover, the trial court's flawed preemption analysis does not account for the essential purpose of condition 2—lessening the adverse impact created by Applicant's disturbance of forest land. As such, the trial court exceeded its authority in striking condition 2.
Condition 3: Bat Protection Measures
With regard to condition 3, the ZHB imposed this five-part condition in order to protect the bat population in the area of the proposed turbines. The trial court upheld three of the five parts of this condition (subsections (b), (c) and (d)), as well as most of subsection (e). Applicant filed no appeal from the trial court's order upholding these parts of condition 3. By failing to appeal the trial court's decision that upheld these parts of condition 3, Applicant preserved no issue as to those parts of condition 3. Tri-County Landfill, Inc. v. Pine Twp. Zoning Hearing Bd., 83 A.3d 488 (Pa. Cmwlth.), appeal denied, 101 A.3d 788 (Pa. 2014) (where objectors did not file cross-appeal from that portion of trial court order that granted a portion of the relief sought by applicant, objectors were barred from challenging that portion of trial court order that was favorable to applicant); cf. Borough of St. Lawrence v. Zoning Hearing Bd. of Borough of St. Lawrence (Pa. Cmwlth., Nos. 119, 218 C.D. 2011, filed March 21, 2012), 2012 WL 8667580 (unreported) (involving consolidated appeals with one party challenging determination that use constituted pre-existing, non-conforming use and other party challenging zoning board's imposition of conditions on that use).
Pursuant to Commonwealth Court Internal Operating Procedure No. 414(a), 210 Pa. Code §69.414(a), an unreported panel decision of this Court, issued after January 15, 2008, may be cited for its persuasive value. --------
As to the remaining parts of condition 3 (subsection (a) and part of subsection (e)), the ZHB required Applicant to enter into a cooperation agreement with the Pennsylvania Game Commission (PGC) and the U.S. Fish and Wildlife Service (USFWS), containing a set of studies performed by Applicant both pre-and post-construction. The ZHB required a copy of that agreement be forwarded to the Fayette County Office of Zoning, Planning and Community Development (County Office) within 10 days of execution, and it prohibited operation of any turbine until the County Office received the executed agreement. Relatedly, subsection (e) states that if Applicant's post-construction studies performed pursuant to the cooperation agreements with the PGC and USFWS indicate a serious bat kill problem as defined by Applicant's study as 2200 bat kills in one year, Applicant shall feather its wind turbines during the hours of 7:00 p.m. through 7:00 a.m. beginning July 16 and ending September 15, beginning the first year that the threshold number of 2200 bat kills occurs.
As to that portion of subsections (a) and (e) that relates to the USFWS, the trial court stated the USFWS only protects bat species that are endangered, and there was no evidence of any endangered bats at this site. With regard to endangered bat species, the trial court stated, "the federal government enacted a comprehensive regulatory scheme that clearly demonstrates federal pre- emption. Thus, the ZHB cannot require [Applicant] to make an agreement with the [USFWS]." Tr. Ct., Slip Op., 6/18/10, at 25.
As to the issue of federal preemption, this Court explains:
The principles of federal preemption are derived from the Supremacy Clause of the United States Constitution. Pursuant to the Supremacy Clause, federal law reigns supreme and governs when conflicts arise between federal and state law.United Transp. Union v. Pa. Pub. Util. Comm'n, 68 A.3d 1026, 1034 (Pa. Cmwlth.), appeal denied, 80 A.3d 779 (Pa. 2013) (citations omitted) (emphasis deleted).
There are three ways federal law can preempt state law:
First, state law may be preempted where the United States Congress enacts a provision which expressly preempts the state enactment. Second, preemption may be found where Congress has legislated in a field so comprehensively that it has implicitly expressed an intention to occupy the given field to the exclusion of state law. Finally, a state enactment will be preempted where a state law conflicts with a federal law. Such a conflict may be found in two instances, when it is impossible to comply with both federal and state law or where the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.
Here, the trial court's brief, one-paragraph analysis of this purported federal preemption issue is clearly insufficient to support a conclusion that subsections (a) and (e) are preempted by federal law. To that end, in addition to failing to identify the type of federal preemption it believed applied, and failing to perform any analysis pursuant to that purported type of preemption, the trial court's decision identifies no inconsistency between subsections (a) and (e) and any federal law.
Further, in striking those parts of subsections (a) and (e) that relate to the PGC, the trial court stated the PGC has general statutory power to protect all bats, including non-endangered species, and to promulgate regulations it deems necessary and appropriate for the management of wildlife or wildlife habitat. The trial court stated, although the PGC has the power to protect bats, it did not comprehensively regulate that field, and it exercised little direct control over decisions about the location of wind turbines. Thus, the ZHB could impose conditions reflecting areas of local concern, but it could not impose conditions that infringe on those areas in which the PGC exercises comprehensive authority and preempted local regulation. To the extent the PGC wants to be involved in protecting bats from wind turbines, the trial court stated, it can exercise the full authority granted to it by the legislature. However, the trial court stated, there is no good reason for the ZHB to require Applicant to enter into an agreement with the PGC, and such a condition impermissibly infringes on the PGC's exclusive authority.
Despite its apparent conclusion that subsection (a) and that part of subsection (e) that relates to the PGC were preempted, the trial court did not identify the type of preemption that it believed applied, did not conduct any analysis pursuant to that purported type of preemption, and cited no relevant authority in support of its conclusion. Indeed, the single case cited by the trial court in its short discussion of this issue relates to the PGC's statewide regulation of hunting. Thus, the trial court's analysis in support of its decision to strike the parts of subsections (a) and (e) of condition 3 that relate to the PGC is inadequately formed. For these reasons, the trial court exceeded its authority in striking subsection (a) and modifying subsection (e) of condition 3.
Condition 4: Sound Studies
Finally, as to condition 4, the ZHB required Applicant to conduct sound studies regarding decibel levels found at each and every property line once each wind turbine was operational. The ZHB stated these studies shall be performed within three months of each wind turbine becoming operational. It also required Applicant to employ an independent sound expert who has no affiliation with Applicant or any of its subsidiaries. The ZHB further required Applicant to provide the County Office with the name of the sound expert or sound company who will perform the sound study together with the sound expert or sound company's resume or curriculum vitae. Once the sound study is performed, the ZHB stated, Applicant shall provide the County Office with a copy of the final sound study report within 10 days of when Applicant receives it.
The trial court struck this condition, stating: "[Applicant] met its initial burden of proof showing that condition four is not reasonable because the condition is simply not necessary." Tr. Ct., Slip Op., 6/18/10, at 28. The trial court observed the zoning ordinance already states that "[n]oise from any windmill/wind turbine shall not exceed seventy (70) decibels when measured from property line." Id. at 29. Additionally, the trial court stated condition 4 was unreasonable because it lacked record support. The trial court indicated the uncontradicted testimony of Applicant's representative was that it is impossible for the turbines to reach the 70 decibel threshold even immediately at the towers' bases. The trial court stated there was no evidence of any "harm" at this point, so a condition regarding such a non-existent harm is an abuse of discretion. Id. If the towers ever do reach 70 decibels at a non-participant's property line, the trial court explained, the zoning ordinance as written should allow them to protect themselves. Again, contrary to the trial court's reasoning, we discern no abuse of discretion in the ZHB's imposition of condition 4.
More particularly, the ZHB found that landowners who appeared in opposition to Applicant's proposal expressed concerns over sound levels in the area. ZHB Op., 6/29/09, Finding of Fact No. 23. Our review of the record reveals that Applicant's representative opined that the sound of the turbines would not exceed 70 decibels when measured from a property line. R.R. at 103a, N.T. at 75. Contrary to the trial court's analysis, the ZHB was simply not required to accept this testimony prior to construction and operation of the turbines. As stated above, a ZHB is permitted to impose reasonable conditions on the use of a property to mitigate any potential adverse impacts from a proposed use. Feldman. As such, the ZHB acted within its authority in imposing a condition requiring Applicant to conduct sound studies after the turbines become operational in order to confirm the accuracy of Applicant's representative's assurances that the sound level produced by each turbine would not exceed 70 decibels when measured from a property line. See Section 1000-876(E) of the zoning ordinance. Thus, the trial court exceeded its authority in striking condition 4.
Conclusion
Applicant waived its right to challenge the propriety of conditions 1-4 by failing to properly preserve any issue regarding these conditions before this Court. Further, regardless of waiver, the trial court exceeded its authority in striking and/or modifying those conditions. For these reasons, this Court properly denied Applicant relief with respect to conditions 1-4.
/s/_________
ROBERT SIMPSON, Judge