Jul 23 - McClatchy-Tribune Regional News - Kevin Flowers Erie Times-News, Pa.

The hearing featured nearly three hours of debate, argument and sometimes-fiery discussion, much of it about a single word.

When it was over, the proposed scrap-tires-to-energy plant's tentative zoning OK from the city of Erie had disappeared.

The city's Zoning Hearing Board on Tuesday voted 4-1 in favor of Erie resident Robert Petroff's appeal of the city's prior decision to grant preliminary zoning approval to the $235 million plant, proposed for the former International Paper Co. site on East Lake Road.

Twenty-seven businesses in the area of the proposed plant and dozens of citizens were in support of Petroff's appeal.

Opponents of the plant, many of whom live in residential neighborhoods near the site, dominated the crowd of more than 100 people who packed Erie City Council Chambers on Wednesday afternoon for the hearing.

Members of the audience clapped and cheered when the board's decision was announced.

The plant's developers, Erie Renewable Energy LLC, can appeal the Zoning Hearing Board's decision to Erie County Common Pleas Court, or start the city's zoning approval process all over again, said Armand Chimenti, the city's zoning officer.

The company's plans regarding the Zoning Hearing Board's decision were not immediately clear Tuesday.

But Randy Barnes, president of Keep Erie's Environment Protected, said he doubts the zoning decision will stop developers from pushing forward with their plans for the 90-megawatt scrap-tires-to-energy plant, known as Port Erie Power.

K.E.E.P. is the grass-roots organization that formed in opposition to the plant, and is concerned the plant could be a health risk to nearby residents and dangerous to the environment.

"We're pleased that the board saw this plan for what it really was," Barnes said. "But to me, it seems that this (hearing) hasn't stopped anything or convinced them to (abandon) their plan."

Chimenti granted the plant's developers preliminary zoning approval on May 8.

But Zoning Hearing Board members agreed with the crux argument of Petroff's lawyer, Ed Betza, who argued that Chimenti erred by classifying two boilers at the plant, each as high as 175 feet, as "appurtenances" according to city zoning laws.

Appurtenances, by the city's definition, are structures annexed to a more substantial building, like a chimney on a house.

Betza argued that the boilers are not appurtenances that are part of a main plant building, but separate structures that should be governed by the zoning ordinance separately.

Under city zoning rules, such separate structures cannot be more than 100 feet high -- which means the boilers' height violates city zoning laws, Betza argued.

An appurtenance, under city zoning laws, can exceed that 100-foot height limit.

The Zoning Hearing Board did not disagree that the boilers at the plant are necessary to its operation, since they help produce steam to move electricity-creating turbines.

But board member Ron Desser, a former city zoning officer, explained the decision to the audience by saying: "We do not feel these boilers should be (classified) as appurtenances, but principal structures of the plant."

Betza also said that a May 8 letter Chimenti sent to Erie real estate developer Greg Rubino, Erie Renewable Energy's president, was not specific enough about why the plant received preliminary zoning approval.

"The letter simply says (the plant) is in compliance," Betza told the board. "This is a very broad approval."

Chimenti said at the hearing that his letter to Rubino was simply to explain that he believed the plant met conditions for preliminary approval.

If the city were to find issues with the plant's plans later, Chimenti said, those issues could be addressed before a final zoning OK is given.

"They read much more into the letter than I did," Chimenti said of Petroff and the plant's opponents.

Asked after Tuesday's hearing if he believes he is a scapegoat, Chimenti said: "Not really. I personally thought the (boilers) were appurtenances. That's why I made the decision I did."

Pittsburgh-based lawyer Clifford Levine, who represented Erie Renewable Energy at Tuesday's hearing, argued that the board should not overturn the plant's preliminary approval. Levine also said that any changes the city deems necessary "can easily be made" without yanking that tentative zoning OK.

Councilwoman Jessica Horan-Kunco and Councilman Pat Cappabianca -- both of whom oppose the plant -- also spoke at Tuesday's meeting.

Each said they also believe Chimenti should not have given the plant a preliminary go-ahead under city zoning rules.

Horan-Kunco added that the Zoning Hearing Board, not Chimenti, should have decided the appurtenance issue regarding the boilers.

"Whether you're for or against this, you need to uphold the (zoning) law," Horan-Kunco said.

Erie resident Beverly Potts, 66, told the board that Erie Renewable Energy owes it to Erie residents to be specific about the plant's operations, in part because of potential health and environmental risks.

Potts lives on Elm Court, a few blocks from the plant.

"Everything (from plant developers) is approximate. There's no room for approximate," Potts said.

Besides Desser, Zoning Hearing Board members Lisa Austin, Dale Niemenski and Salvador Parco voted to support the zoning appeal. Board Chairman Jeffrey Johnson voted against it.