ARCHBALD — A majority of Jessup Borough Council believes that the zoning ordinance preventing developer Invenergy LLC from constructing a power plant is flawed, but they haven’t decided yet how to fix it.
At a special meeting Wednesday in the Valley View High School auditorium, council members voted 6 to 1 that the borough zoning ordinance is defective and unduly excludes power plants — a challenge Invenergy posed as it seeks to build a plant in an area that is not zoned to host it.
Council members James Brunozzi, Maggie Alunni, Pat Kurpis, Michael Gasper, Lorraine Stevens and Randy Santarelli voted “yes”
Councilman Joe Mellado cast the only no vote. He could not be reached for comment after the meeting.
They voted unanimously to delay deciding on a “cure” to amend the ordinance.
Invenergy, a Chicago firm that proposes to build a 1,500-megawatt natural-gas-fired plant near the Casey Highway in Jessup, has offered several possible cures; however, council members may choose to devise their own fix.
The vote followed summary statements by opposition attorney Don Miles, who called Invenergy a “bully.”
“They tried to buy your vote by offering a cheap handout, half a million dollars a year, to borough organizations while they earn billions from this plant,” he said referencing a community host agreement Invenergy has offered contingent on the project’s approval.
In his summary statement, Invenergy attorney Mike Blazer attacked Mr. Miles claiming his opponent presented skewed information.
“As he did throughout the hearing, he avoided the facts and he avoided the law,” he said.
Invenergy had challenged the zoning ordinance’s validity, claiming height restrictions, setback requirements and a rule that all equipment must be enclosed in buildings prohibits them from building a plant anywhere in Jessup, even in an M-2 zone, which allows power generation facilities as a conditional use.
Invenergy wants to build in an M-1A zone, which does not allow such plants.
During the hearing, which spanned about four months, setbacks remained the primary battleground as attorneys argued whether a 2,000-foot setback applies to commercial or residential development.
“We have to assume that the words ‘existing development’ means any development, not just residential,” borough solicitor Richard Fanucci said Wednesday in his opinion to council. “And if that’s the case … there’s nowhere in the current M-2 zones, and likely any others, for this to be built.”
There’s about 12 acres in one of two M-2 zones that sits 2,000 feet beyond a residential zone, but it’s too small for the 44 acres that Invenergy documents show are needed for the plant.
Mr. Miles disagreed with Mr. Fanucci and said historically the only reason for such setback rules is to protect residential areas.
“The intention here was to keep it away from residences,” he said.
Following the meeting, Jason Petrochko, a Jessup resident who opposes the plant, questioned Invenergy’s integrity saying that in company attorneys’ earlier documents, they noted development means only residential zones.
“Somewhere along the lines they changed gears to say it meant a different kind of development,” he said
Mr. Blazer has countered that argument, saying that both the state and borough’s planning code make no distinction.
Mr. Blazer offered to waive the Aug. 28 deadline — 45 days from the hearing’s conclusion on July 14 — for council’s decision on a cure until Sept. 11 because it was unclear whether council had satisfied the law by deciding only that the ordinance is defective and not addressing the cure.
Attorneys also agreed that Mr. Miles’ window to appeal the council’s decision begins when council decides on a cure.
Invenergy Vice President of Thermal Development Dan Ewan said he was pleased with the outcome and grateful to council members.
“I appreciate all the time and effort they put into it,” he said. “I know it wasn’t easy.”