## Facts

- AES Armenia Mountain Wind, LLC proposed a utility-scale wind farm in Tioga County, including up to 124 wind turbines, substations, transmission lines, access roads, and an operations building.
- AES filed a land development application for preliminary approval with the Tioga County Planning Commission.
- AES did not own the project properties in fee simple; it held option agreements covering more than 4,000 acres that granted rights to enter the land and included exclusive easement-like rights during the option period.
- The county subdivision and land use ordinance required screening (natural screening or fencing) where industrial development abutted residential or incompatible uses.
- AES sought a modification/waiver of the screening requirement, asserting complete visual screening was infeasible due to turbine height; it proposed retaining vegetation where practical, using setbacks to reduce views, adding plantings around low-lying structures, and fencing substations per utility safety standards.
- The Planning Commission approved the screening modification/waiver and granted preliminary conditional approval of the land development application.
- Tioga Preservation Group and individual objectors appealed to the Court of Common Pleas, challenging (1) AES’s status as a proper applicant based on its property interests and (2) the evidentiary basis for the screening waiver.
- The trial court affirmed the Commission, and the objectors appealed to the Commonwealth Court.

## Issues

1. Whether an applicant holding option agreements and related entry/easement rights, rather than fee ownership, had a sufficient property interest to seek subdivision/land-development approval under the Municipalities Planning Code and the county ordinance.
2. Whether the Planning Commission committed an error of law or abused its discretion in granting a modification/waiver from the ordinance’s screening requirement for the wind-farm project.

## Decision

- The Commonwealth Court affirmed the order of the Court of Common Pleas, leaving in place the Commission’s preliminary conditional approval and screening waiver.
- The court held AES’s option agreements and associated rights constituted a sufficient present property interest to qualify as a proper applicant.
- The court held the Commission’s waiver decision was supported by substantial evidence and reflected no abuse of discretion or error of law, given the claimed infeasibility of fully screening tall turbines and AES’s proposed alternative measures.

## Legal Principles

- For subdivision and land-development applications, fee simple ownership is not invariably required; a legally enforceable, present property interest (including option- and easement-based rights to access and evaluate/develop) can be sufficient to establish applicant status.
- A planning commission may grant a modification/waiver from an ordinance requirement when strict compliance is impracticable for the project type and the applicant proposes alternative measures that reasonably advance the ordinance’s objectives.
- Appellate review of local land-use approvals and granted waivers is deferential; the court examines whether the decision is supported by substantial evidence and is free of legal error, not whether the reviewing court would have reached the same result.

## Conclusion

The Commonwealth Court upheld the county planning commission’s preliminary approval of a wind-farm land development plan and its waiver of screening requirements, concluding that the developer’s option-and-easement interests were sufficient to apply and that the waiver was supported by record evidence and within the commission’s discretion.


Tioga Preservation Grp. v. Tioga Cnty. Planning Comm'n, 970 A.2d 1200 (Pa. Commw. Ct. 2009)