Dec 24 - McClatchy-Tribune Regional News - George Miller Erie Times-News, Pa.

The third plan proved to be the charm for the proposed $300 million tires-to-energy plant.

The city of Erie's Zoning Office on Tuesday gave final zoning approval to revised plans for the controversial project on the city's east side.

The decision -- delivered by Zoning Officers Armand Chimenti and Katie Deible in an approval letter to the developer, Erie Renewable Energy LLC -- is expected to be appealed by plant opponents to the city's Zoning Hearing Board within the 30-day deadline.

"I can guarantee you, it will be appealed," said Randy Barnes, president of Keep Erie's Environment Protected, a grass-roots organization opposed to the plant.

The developer needs zoning approval to obtain a building permit for the plant, which is to be on the former International Paper Co. property on East Lake Road.

Joseph J. May, a lawyer for the developer, said the company had revised its site plans to comply with the city's interpretations of zoning regulations.

"Obviously, we're pleased with the approval," he said.

Tuesday's approval is one of a series of zoning decisions on the plant.

The issue has mainly centered on whether Erie Renewable Energy must limit the height of a smokestack, boilers and other equipment to a maximum of 100 feet.

The Zoning Office in May gave preliminary approval to two 160-foot boilers, saying they were "appurtenances" and therefore didn't have to comply with the 100-foot height limitation. An appurtenance, under zoning regulations, must be "erected upon" and be "an integral part" of a building.

On July 22, the Zoning Hearing Board overturned that decision, saying the boilers were free-standing structures and therefore did not meet the definition of an appurtenance.

ERE challenged the board's decision in court, but county Judge Shad Connelly on Dec. 12 upheld it.

Even though ERE had appealed the board's ruling to court, the company also submitted to the city on Sept. 24 a revised site plan that showed the boilers enclosed with the turbine building. The plan also included a 300-foot smokestack and a 180-foot cooling and filtering facility, but they were not enclosed in a building.

The Zoning Office rejected that site plan, saying the smokestack and cooling and filtering facilities were free-standing, and not appurtenances as now defined by the Zoning Hearing Board, and therefore had to comply with the 100-foot height limitation.

Erie Renewable Energy appealed that decision to the Zoning Hearing Board and also filed a new site plan that had the boilers, smokestack and cooling and filtering facility enclosed in buildings.

That new site plan was the one approved by the Zoning Office.

In their ruling, the zoning officers said the company's plan complied with the directions of the Zoning Hearing Board.

"To us, they have done everything the Zoning Hearing Board has asked them to," Chimenti said. "So how can we say no?"

But Barnes, the K.E.E.P. president, said the developer is "trying to skirt the intent of what an appurtenance is."

For example, he said the smokestack "has nothing to do with the function of the building" that encloses it.

"All (the company did) is draw a building around it," he said.

Barnes said he doesn't think a decision by the Zoning Hearing Board will end the issue. The board's decision can be appealed to Erie County Court.

"I'm sure one side or the other will keep appealing it until the appeals are exhausted," he said.

Copyright © 2008The McClatchy Company