Land & Renewables Connection
Pennsylvania Commonwealth Court Does Not Address Lot-Specific Requirements for Solar Farm Developments
In its May 6, 2025 decision in Protect Elizabeth Township v. Elizabeth Township, the Pennsylvania Supreme Court determined that a local zoning ordinance required oil and gas facilities to be the principal structures on individual tax lots. Because homes were already located on the parcels where oil and gas facilities were proposed in that case, the Commonwealth Court concluded that the oil and gas facilities were not authorized by the local zoning ordinance. This focus on ordinance compliance from individual lots is not solely related to oil and gas cases.
In Lebanon Solar I, LLC v. North Annville Township Board of Supervisors, No. 189 C.D. 2024 (Pa. Commw. Ct. May 23, 2005), a municipality denied a solar energy developer’s proposal for a solar energy generating facility covering approximately 858 acres. That geographic area involved 12 contiguous tax parcels, all of which were zoned “A-1”, where the proposed solar farm development was a conditional use.
After public hearings, the Township’s governing body denied the proposed solar farm conditional use application based on three grounds. First, the solar energy developer’s failure to prove that each of the individual tax lots complied with the conditions for solar farm development in the zoning ordinance. Second, the solar energy developer’s failure to submit a stormwater management plan and bond. Third, the solar farm developer’s failure to propose an adequate vegetative buffer that was governed by the zoning ordinance.
Whereas the Township denied the conditional use application on August 5, 2022, it issued its written decision on May 12, 2022. The solar farm developer filed a land use appeal from the decision on May 12, 2022 and an amended land use appeal on June 17, 2022. In its appeals, the solar energy developer challenged, among other things, the municipality’s requirement that the proposed solar farm development satisfy the zoning ordinance requirements on each of the individual lots that made up the project.
That set the stage for an issue similar to the one in Protect Elizabeth Township. Was zoning ordinance compliance required on each of the tax parcels that made up the project? But, the Commonwealth Court did not answer that question in Lebanon Solar I. The Commonwealth Court concluded that it did not, and could not, reach the merits of the land use appeal because it was untimely. The Lebanon Solar I court concluded that the land use appeal that the solar energy developer filed was untimely. The first land use appeal in early May 2022 was premature and procedurally improper because it preceded the actual written decision. The “amended” notice of appeal was untimely because it was filed more than 30 days after the written decision.
As a result of this procedural dismissal of the appeal, the Commonwealth Court did not substantively address the question of ordinance compliance on individual parcels as part of a larger solar energy development. But, the fact that the municipality denied the conditional use application on that basis, along with others, suggests that compliance with ordinance requirements on a parcel-by-parcel basis is a critical point of consideration in the consideration of any conditional use or special exception application.
If you have questions regarding solar energy leases, developments or land use and zoning matters, contact Brendan A. O’Donnell at odonnellba@hh-law.com or 412-288-2226.
About Us
These are cutting edge legal issues. The law of the future. Renewable energy, zoning and land use issues will shape the future of growth in the region. Houston Harbaugh’s Renewable Energy, Zoning and Land Use practice focuses on assisting clients maximize and protect the value of their properties, whether related to renewable energy, commercial or residential development opportunities.
As renewable energy becomes more reliable, efficient, inexpensive and technologies associated with carbon capture and storage advance, Pennsylvania, West Virginia and Ohio are in position to benefit from these two parallel energy development opportunities. The region’s geographic location and existing infrastructure presents unique opportunities for property owners to participate in solar, wind, geothermal, other renewable energy developments, as well as for carbon capture, carbon sequestration and carbon storage projects. Additionally, legacy oil, gas and coal infrastructure may be repurposed and reused in connection with new energy developments.
With any development, whether renewable energy, commercial or residential, there are a host of zoning and land use issues that directly impact the most basic parts of daily life of both individuals and communities. Determining where and how land can be developed impacts property ownership, property value, quality of life and the economic development and wellbeing of communities. Zoning and land use issues are, on one hand, matters of local concern but, on the other hand, potentially subject to county or state regulations.
The Renewable Energy, Zoning and Land Use practice draws on Houston Harbaugh attorneys’ experience in energy, oil and gas and real property matters to advance clients’ interests in both transactional and litigation matters. Houston Harbaugh’s Renewable Energy, Zoning and Land Use attorneys assist clients with matters including:
- Solar energy leases;
- Wind energy leases;
- Pore space ownership for carbon capture / carbon sequestration / carbon storage, geothermal and waste disposal;
- Ownership of legacy oil, gas and coal infrastructure for repurposing/renewable energy usage;
- Compliance with existing solar, wind and renewable energy leases;
- Surface and subsurface accommodation between competing land uses;
- Variance, Special Exception and Conditional Uses applications/hearings;
- Land use appeals;
- Eminent domain
Brendan A. O'Donnell
An attorney in Houston Harbaugh’s Oil and Gas Practice, Brendan O’Donnell has represented oil and gas owners across Pennsylvania in a wide array of oil and gas matters for over a decade. This experience has involved not only the Marcellus shale and the Utica shale, but more traditional oil and gas development as well.
Brendan maintains a diverse practice, representing clients in all matters involving oil and gas spanning the transactional and litigation realms. On the transactional front, Brendan routinely assists landowners with negotiating oil and gas leases, pipeline rights of way and surface use agreements and subsurface easements related to horizontal drilling as part of Marcellus and Utica shale development. Brendan also frequently reviews royalty statements and oil and gas ownership issues as well as preparing deeds and title curative documents. Brendan also maintains an active litigation practice, representing clients in state and federal courts, as well as private arbitration matters. This litigation often involves title disputes, pooling and unitization challenges, lease termination questions and royalty/ post-production cost claims.
Assisting clients across the spectrum from contract negotiations through litigation and appeals gives Brendan valuable first-hand knowledge about how oil and gas agreements are prepared, how disputes arise and how courts resolve these issues. Brendan stays up-to-date on developments in oil and gas law and writes frequently on the these topics. Additionally, as alternative energy generation like wind and solar are increasingly being developed in oil and gas producing regions, Brendan assists clients with navigating the interplay between these complex energy developments and evaluating solar agreements.
Brendan complements his oil and gas practice by representing property owners, including oil and gas owners, in zoning and land use matters. Brendan has represented clients before municipal bodies and in appeals to court. Brendan is also active in the firm’s Energy and Environmental Law Practice.
Regardless of the type of representation, Brendan prides himself in providing clients with realistic, pragmatic advice. Hiring an attorney is an investment and Brendan focuses on how he can provide value to clients.
Outside of the office, Brendan serves on the Town of McCandless Planning Commission and lives with his family in McCandless. Brendan has visited every one of Allegheny County’s 130 municipalities.
