Booming Solar Development Faces Local Opposition Throughout Pennsylvania
As a land use attorney familiar with facing local backlash over unpopular developments, I never thought that any industry would provoke the wild-west style public hearings held for natural gas wells, compressor stations and pipelines that started with the unconventional drilling boom in the Appalachian basin more than 15 years ago. But now, local residents are again turning out in force, packing fire halls and middle school gymnasiums to oppose development of the next energy boom: utility scale solar farms.
Solar development has exploded in the Commonwealth over the last five years, even in Western Pennsylvania, where the proliferation of cloudy weather hasn’t seemed to deter solar developers. And, as with oil and gas, municipalities are now catching up by adopting stricter ordinances specifically targeting large scale solar development. Many of these ordinances have placed the burden on solar developers to make significant upfront investments in solar projects at the zoning approval stage. It is now not uncommon for a conditional use proceeding involving a large-scale solar development to take at least 10 to 20 hearings over the course of more than half a year. During that time, solar developers are forced to pay for and present expert testimony (in areas such as stormwater, health and safety, solar glare, property values, endangered species, and others) to demonstrate compliance with sometimes vague conditional use requirements.
A recent reported decision from the Commonwealth Court serves as a cautionary tale for solar developers and the attorneys that represent them. In Brookview Solar I, LLC v. Mount Joy Twp. Bd. of Supervisors, 305 A.3d 1222 (Pa. Cmwlth. 2023), Brookview Solar (a wholly owned subsidiary of NextEra Energy, one of the nation’s largest solar development companies), sought conditional use approval from Mount Joy Township for the construction of a 75-megawatt solar energy facility over a site of approximately 1,000 acres. The Township had previously adopted a solar amendment to its zoning ordinance, which provided specific conditional use criteria for large scale solar energy systems.
Between January 2020 and March 2021, the Township Board of Supervisors held 21 public hearings on Brookview’s conditional use application. To demonstrate compliance with the zoning ordinance’s specific solar requirements, Brookview presented testimony of civil engineers, landscape architects, a property valuation expert, environmental consultants, and various directors and project managers employed at NextEra. Objectors to the development presented testimony regarding stormwater impacts, inadequate buffering of the solar panels, impacts upon ecosystems and wildlife, as well as competing expert testimony regarding property values. At the conclusion of the extended hearings, the Board’s vote on the application resulted in a tie, which caused the application to be denied by operation of law.
Brookview appealed the denial to the Court of Common Pleas of Adams County, which considered the matter on a de novo basis. The trial court did not take any additional evidence, but made its own findings based on the record below. Of particular importance to the trial court proceedings was a specific provision of the zoning ordinance which provided that the applicant submit a “[g]lare analysis demonstrating, through siting or mitigation measures, that any glare produced by the solar energy system will not have an adverse impact.” The trial court concluded that this language established a substantive requirement, and not merely a procedural requirement for the completeness of the NextEra’s application.
In an effort to satisfy the requirement, Brookview submitted a glare analysis report with its application and attempted to submit it into evidence at the first conditional use hearing. However, at hearing, the only person to testify about the report was Brookview’s senior manager, who stated that the report “found no impact.” Objectors sought to preclude admission of the glare analysis report for the stated reason that without any expert testimony, they could not conduct cross-examination on the report’s methodology. The Board did not rule on the objection. However, the Board’s solicitor recommended that the objection be overruled because “the Application [was] submitted to the Township, and all of its parts were properly identified as an exhibit.”
In its de novo review, the trial court ruled the glare analysis report was inadmissible. It reasoned that, without any demonstration of the report’s authenticity or reliability, it did not satisfy even the most lenient standard of evidence. Thus, the glare report did not satisfy the ordinance’s substantive glare requirement, absent direct testimony from its author. And, in addition to glare, the trial court also held that NextEra failed to demonstrate compliance with several other substantive requirements, most importantly a requirement that the conditional use site plan demonstrate actual compliance with the Township’s stormwater management ordinance at the conditional use stage. Accordingly, the trial court affirmed the denial of the application.
On appeal, the Commonwealth Court affirmed the trial court. It found that, despite the Municipalities Planning Code’s (MPC) provision that the formal rules of evidence do not apply to conditional use hearings, hearsay evidence “must [still] be sufficiently corroborated by other evidence in order to be considered competent evidence.” Because Brookview did not provide expert testimony to authenticate the methodology used in the report, Objectors were denied the opportunity to conduct meaningful cross-examination, as required by the MPC. Regarding the trial court’s holding on stormwater, although compliance with stormwater ordinances is not typically required until land development approval is sought, the court held that, because the zoning ordinance specifically required compliance with the stormwater ordinance at the conditional use stage, denial based on that point was also proper. Finally, the court also held that NextEra’s site plan was too vague to demonstrate compliance with the zoning ordinance’s open space and access road requirements.
NextEra did not petition the Pennsylvania Supreme Court for appeal. Accordingly, the Commonwealth Court’s decision now constitutes binding precedent. The decision in Brookview demonstrates that solar developers must approach conditional use proceedings loaded for bear. Developers risk denial if they attempt to satisfy conditional use requirements with conclusory statements and reports. Expert testimony should be prepared and presented as to all technical substantive conditional use requirements and developers should not hesitate to provide substantial rebuttal testimony to address health and safety issues raised by objectors. Finally, even though technical engineering plan requirements are not typically required until later in the land development plan approval stage, developers should make the upfront investment to have such plans prepared where specifically required by the zoning ordinance.