Citation:

Tioga Preservation Group v. Tioga County Planning Commission, No. 1749 C.D. 2008, 2009 Pa. Commw. LEXIS 77 (Pa. Commw. March 3, 2009).

Summary:
An entity with an option to lease a property for which it seeks land development approval for a wind farm has an ownership interest sufficient to constitute an “applicant” and “landowner” as required by the Municipalities Planning Code, and a municipality may grant a waiver from a provision of its ordinance if it would exact undue hardship or the request for waiver is for an innovative design that advances the purpose of the ordinance.
Case Details:

AES Armenia Mountain Wind, LLC, had option agreements to lease more than 4,000 acres in Tioga County and filed an application for preliminary land use approval for a wind farm consisting of 124 turbines and necessary buildings, transmission lines and roads.  The application included a request for a waiver from the requirement in the Subdivision and Land Use Ordinance requiring natural screening or fencing where an industrial development abuts residential property.  The Planning Commission held hearings and, over objection by the Tioga Preservation Group, granted the application, including a waiver of the screening/fencing provision of the Ordinance.  The Preservation Group filed a land use appeal with the Common Pleas Court which upheld the decision of the Planning Commission, resulting in further appeal to Commonwealth Court.

On appeal, the Preservation Group first argued that because AES held only an option to lease the subject property, it did not have the required ownership interest to constitute an applicant under the MPC.  The Commonwealth Court rejected this challenge, explaining that under the terms of the Option Agreements, AES had an interest beyond a proposed leaseholder, but instead had a proprietary interest in the subject properties sufficient under the MPC.

The Preservation Group also argued that the Commission erred in granting the waiver from the screening requirement because there was no evidence to allow the Commission to find that AES could not, in fact, comply with the provisions of the Ordinance.  The Court also rejected this argument.  The Court explained that a municipality may grant a waiver or modification from the provisions of an ordinance where enforcement would be unreasonable or result in undue hardship.  Further, the MPC allows a modification or wavier where the municipality determines that the land development plan is an innovative design that advances the purpose of the ordinance.  The evidence in this case demonstrated that compliance with the Ordinance was not reasonable, there were aspects of the property that would provide natural screening, requiring fences would block the wind and obstruct the project, and it would be unreasonable to require fencing because it would provide little to no additional benefit to the community.  As a result, the Court determined that the Planning Commission acted within its authority under the MPC and upheld the application with the requested waiver.

Date of Decision: 3/3/09

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