Court appeal alleges ‘conflict of interest’ between wind farm company and county

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An appeal filed recently in county court alleges that the developer of the Laurel Hill wind energy project may have unfairly benefitted by being represented by the same law firm that represents the county.

The appeal, which challenges the county Planning Commission's approval of preliminary land development plans for the project, was filed by attorney Christian D. Frey, of the law firm Lepley, Engelman and Yaw, on behalf of a group of residents living near the proposed project site.

Both Vermont-based Laurel Hill Wind Energy and Lycoming County are represented by the law firm McNerney, Page, Vanderlin and Hall. The law firm employs attorney Eugene Yaw, who is county solicitor, and Thomas Marshall, who represents the wind energy company.

"The representation of (the law firm) of Lycoming County in various capacities, and specifically as counsel for the commissioners, and of Laurel Hill Wind Energy ... constitutes a conflict of interest," the appeal states.

"We certainly believe that is one of the primary issues here," Frey said. "There is, at the very least, an appearance of impropriety by virtue of the dual representation."

The appeal alleges that opponents of the project were denied due process because of the law firm's "dual representation" of the county and wind energy company.

The appeal also alleges that an ordinance was crafted by the county to specifically allow the wind energy company to circumvent the county Zoning Hearing Board's denial of a special exception needed to build the wind farm.

At the time of the board's denial, and prior to the adoption of an updated county ordinance that deals with wind farms, a special exception was needed to develop wind energy in a resource protection zoning district. Most of the project was proposed in a resource protection zone.

The wind energy company appealed the board's decision in court, but Judge Nancy Butts upheld the board's decision.

The county eventually amended its zoning ordinance to allow wind energy in resource protection zones.

"(The ordinance) was crafted specifically for the purpose of creating a de facto reversal of (Butts' decision)," according to the appeal.

When reached Monday for comment, Yaw said the law firm "went out of its way" to avoid any conflict of interest related to the project.

Whenever an issue arose involving county government with the project, attorneys from different law firms were hired to represent the county, Yaw said.

Yaw's wife, Ann Pepperman, an attorney who also is a member of the county Planning Commission, either did not attend or excused herself from meetings during which the issue of wind energy was discussed.

"(The law firm) went out of its way to stay totally apart from that because we did represent Laurel Hill Wind Energy," Yaw said.

Among the other issues raised in the appeal is the timing of the development plan's approval.

The approval was given before the county Zoning Hearing Board issued a written denial of an appeal by residents Frank Piccolella and Arthur Plaxton of a zoning permit issued for the project by then-county zoning administrator Fred G. Pfeiffer.

According to the appeal, state law does not allow the approval of land development plans until such a decision has been issued.

The appeal also alleges that fraudulent information, including altered aerial photographs, was used to obtain the zoning permit for the project.

According to Planning Commission solicitor Charles F. Greevy III, the board's verbal denial of Piccolella and Plaxton's appeal was enough to allow the commission to consider preliminary land development plans.

"I don't think from the timing that there was a problem going through with the preliminary land development plans," Greevy said.

Greevy said the zoning ordinance that now allows wind energy development in resource protection zones was mostly crafted by planning staff and himself.

"I worked with the commissioners along with planning staff to put it together," he said.

Greevy said he plans to meet with planning staff within the next week to review the appeal.

Piccolella has filed a separate court appeal of the Zoning Hearing Board's decision denying his appeal of the zoning permit.

The appeal alleges, among other things, that the wind energy company's application for the permit should have been denied because it was missing important information.

"The shortcomings of the application are numerous and serious enough to warrant the court's reversal of the decision by (the board)," according to the appeal.

The appeal also claims that Piccolella and his wife Judi's rights were violated because they were not allowed to adequately testify during a July 23 hearing before the board.