Land & Renewables Connection

In Brookview Solar I, LLC v. Mount Joy Township Board of Supervisors, 305 A.3d 1222 (Pa. Commw. Ct. 2023), the Pennsylvania Commonwealth Court agreed with a lower court and affirmed a municipality’s denial of a conditional use application for a large solar farm in Lancaster County, Pennsylvania. The Brookview Solar I, LLC decision goes beyond zoning issues with solar farms and illustrates the importance of the terms of a zoning ordinance in the conditional use process, even when a municipality may indicate that compliance with certain ordinance requirements is not required.

In 2019, Brookview Solar I, LLC (“Brookview”) filed an application with Mount Joy Township, Lancaster County for conditional use approval for a proposed 75 megawatt solar energy generating facility. That facility was proposed to be located across 1,000 acres, split between two zoning districts. Id. at 1227. A total of 374 acres of the facility were proposed to be located in the Township’s “Baltimore Pike Corridor” district, and the balance of the acreage was in the Township’s agricultural zone. Id. Mount Joy Township’s zoning ordinance allowed solar energy facilities “by right” in the agricultural zone, but solar energy facilities were conditional uses in the Baltimore Pike Corridor district. Id. That meant that Brookview needed to obtain conditional use approval from the Township’s governing body for the part of its proposed solar energy facility that would be located in the Baltimore Pike Corridor.

Brookview submitted a conditional use application detailing its proposed solar energy facility and Mount Joy Township’s zoning officer accepted the application. Brookview’s application contained a glare analysis but lacked considerable detail on matters like stormwater management, the amount of property area that would be covered by solar panels, and internal travel within the solar farm. The Mount Joy Township zoning officer allegedly informed Brookview that its application was complete.

Twenty-one public hearings transpired before the Mount Joy Township Board of Supervisors, with testimony presented by Brookview and dozens of objectors. The Board of Supervisors split its decision; half voted to approve the solar energy facility with conditions and half voted to deny it. Id. at 1227-28. As a result, as a matter of law, Brookview’s conditional use application was denied. Id. Just as the Board of Supervisors did not reach a majority to approve or deny Brookview’s application, the Board of Supervisors also could not agree on factual findings, with the Board preparing two sets of draft, unsigned findings of fact. Id.

Brookview appealed the denial of its conditional use application to the Lancaster County Common Pleas Court. The initial issue before the Common Pleas Court was the standard of review it should apply to the appeal. Mount Joy Township and Brookview proposed that the Common Pleas Court consider the factual findings in the Township’s pair of unsigned draft decisions as if they were adopted by the Board of Supervisors. Id. at 1228. The parties also agreed that the Common Pleas Court should use an appellate standard of review. Id. at 1228.

The Trial Court rejected both of these proposals. It concluded that the Board of Supervisors had not made any factual findings, because there was no indication that either of the draft decisions were formally adopted by the Board of Supervisors. Id. at 1228. The Common Pleas Court reasoned that it was statutorily obligated to make its own findings, and that the parties could not limit the standard of review that was established by statute. Id.

The Common Pleas Court reviewed the record made before the Board of Supervisors and affirmed the denial of Brookview’s conditional use application. A conditional use applicant carries the burden of proof to establish its compliance with the specific, objective criteria of a zoning ordinance. In re Thompson, 896 A.2d 659, 670 (Pa. Commw. Ct. 2006). The Common Pleas Court concluded that Brookview did not satisfy all of the objective criteria in the zoning ordinance, so it was not entitled to conditional use approval. Brookview then appealed to the Commonwealth Court which rendered its decision at the end of November, 2023.

With the Commonwealth Court finding no issue with the Common Pleas Court’s standard of review, the appeal at the Commonwealth Court substantively focused on whether Brookview complied with its obligations under the Mount Joy Township zoning ordinance. More specifically, the Commonwealth Court evaluated the Common Pleas Court’s findings that Brookview failed to include details required by the zoning ordinance about stormwater management, lot coverage and internal movement in its conditional use application. The Commonwealth Court also reviewed the Common Pleas Court’s conclusion that the glare analysis that Brookview submitted with its application was inadmissible.

Brookview acknowledged that its conditional use application did not contain considerable detail regarding stormwater management, the amount of lot area that would be covered by solar panels, and internal traffic routings within its solar farm site. But, it argued that those details were unnecessary as part of its conditional use application, as the particulars associated with those points would be developed in further proceedings and later permits. Brookview at 1236. Brookview also pointed to the Mount Joy Township zoning officer accepting Brookview’s conditional use application and allegedly indicating that it was complete as support for its contention that it satisfied the ordinance requirements.

The Commonwealth Court was unpersuaded by the argument that Brookview’s conditional use application passed muster because the zoning officer accepted it and allegedly said that it was complete. According to the Commonwealth Court, the zoning officer’s decision did not, and could not, bind the Board of Supervisors, which had the duty under the zoning ordinance to act on the conditional use application. Id. at 1237.

As to the site plan details of a conditional use application, Commonwealth Court agreed with the Common Pleas Court’s conclusion that Brookview was required to provide more detail than it included in its application. The Commonwealth Court observed that its jurisprudence included two lines of cases: those cases findingthat zoning applications could not be denied for failures to address site plan issues and those cases supporting the view that zoning applications could be denied for failing to address site plan issues. These two lines of cases coexist because “the parameters of a conditional use application are determined by the terms of the particular zoning ordinance.” Brookview at 1236.

The Commonwealth Court’s focus on the requirements of the zoning ordinance was important, given that Mount Joy Township and Brookview both seemed to argue that Brookview’s application was complete. Mount Joy Township contended that Brookview only needed to show “the proposed use demonstrates a substantial likelihood of compliance with the requirements of the Zoning Ordinance.” Id. at 1236. Brookview also had argued before the Common Pleas Court that “there were no deficiencies in Brookview’s site plan.” Id. at 1237.

Although Brookview and Mount Joy Township argued that a section of the zoning ordinance only required conditional use applicants to show a substantial likelihood of compliance with ordinance requirements for stormwater, the Commonwealth Court found that there were more specific standards associated with solar farm developments which Brookview did not satisfy. Id. at 1238-39. Concerning the lot area that would be covered by solar panels, the Commonwealth Court also found that Brookview failed to meet ordinance requirements.  Brookview presented evidence about solar panel coverage on the lot, but that was not credited because it was speculative since Brookview had not selected a solar panel size. Id. at 1239.

Similarly, the Commonwealth Court found that Brookview did not satisfy the ordinance requirement to show specific access routes through its site. Id. Although Brookview contended that its failure to provide this information was based on assurances from the Mount Joy Township zoning officer, the Commonwealth Court noted that the zoning officer had no authority to waive zoning ordinance requirements and that “Brookview acted at its peril by ignoring the express requirement in the Zoning Ordinance.” Id. at 1240.

The Commonwealth Court then turned to the Common Pleas Court’s conclusion that Brookview’s glare report was inadmissible. The Mount Joy Township zoning ordinance required a conditional use permit application to include 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.” Id. at 1230. Brookview submitted a glare report with its application, with the report concluding that no glare from the solar farm was predicted to impact residences or roadways. However, Brookview did not identify the glare study’s authors, and the only testimony about the glare study that Brookview introduced at the public hearings was one of its own witnesses who testified that the glare study “found no impact”. Id.

Brookview contended that it did not need to present a witness at the public hearings before the Board of Supervisors to testify about the glare report. Brookview reasoned that “so long as the  conditions use application includes a glare analysis stating, ‘any glare produced by the solar energy system will not have an adverse impact,’” the conditional use applicant satisfied the zoning ordinance requirements. Id. at 1240. The objectors contended that the glare study should not be admitted into the record because without expert testimony, they could not cross-examine the authors about the methodology used in the report. Id. at 1241.

The Court of Common Pleas agreed with the objectors and concluded that the glare study was inadmissible. The Commonwealth Court agreed, reasoning that Brookview did not authenticate its glare analysis report, presented no testimony on the substance of the report, and did not present any testimony about the methodology underlying the report. Additionally, the Commonwealth Court observed that Brookview did not attempt to corroborate the glare report’s conclusion that there would be no adverse impact. Importantly, the Commonwealth Court observed that Section 10908(5) of the Municipalities Planning Code entitled the objectors the ability to cross-examine adverse witnesses, which was unavailable because Brookview did not present an expert witness to testify about the glare report at the hearings before the Board of Supervisors.

As a final point, the Commonwealth Court reviewed an issue about burdens of proof. When a conditional use applicant demonstrates compliance with the specific, objective criteria of a zoning ordinance, “a presumption arises that the use is consistent with the health, safety and general welfare of the community.” Greaton Properties v. Lower Merion Township, 796 A.2d 1038, 1045–46 (Pa. Commw. Ct. 2002). At that point, “[t]he burden then normally shifts to the objectors of the application to present evidence and persuade the Board that the proposed use will have a generally detrimental effect.” Id. at 1046. “The evidence presented by objectors must show a high probability that the use will generate adverse impacts not normally generated by this type of use and that these impacts will pose a substantial threat to the health and safety of the community.” Id.

However, a zoning ordinance may change the objectors’ burdens. In that instance, if objectors present evidence showing that the proposed development will have a detrimental impact on the health, safety and welfare of the community, the conditional use applicant has to address the objections and prove that the proposed use would not violate the health, safety and general welfare of the community. See, EQT Production Company v. Borough of Jefferson Hills, 208 A.3d 1010, 1023, n. 10 (Pa. 2019).

In this matter, Brookview contended that the Common Pleas Court incorrectly assigned a burden of persuasion to Brookview that the application objectors were obliged to carry. Brookview argued that “the trial court erred by placing the burden of persuasion on Brookview, instead of  Objectors, on the issue of whether its proposed solar energy system will have an adverse impact on the general welfare of the community.” Brookview at 1241.

The Commonwealth Court found no error. It cited to several sections of the Mount Joy Township Zoning Ordinance to conclude that a solar farm conditional use applicant had the burden “to demonstrate that the proposed use will not substantially change the character of the lots used by a solar energy system or adversely affect the character of the neighborhood or the reasonable use of neighboring lots.” Id. at 1243. The Commonwealth Court observed that objectors to Brookview’s application had presented evidence showing impacts of the solar facility, such as existing water run-off from the site, water contamination, inadequate buffering of solar panels, detrimental impacts of both the visibility of the site and the site’s impacts on ecosystems and property values. Id.

Interestingly, the Commonwealth Court did not address whether the objectors successfully demonstrated that the proposed solar farm would adversely impact the health, safety and welfare. The Commonwealth Court looked at the burden of persuasion issue as part of Brookview’s broader failures to demonstrate ordinance compliance, writing that “[g]iven the site plan deficiencies, including the absence of a credible glare analysis, the trial court held it was impossible to find that ‘the health and safety of residents or workers on adjacent lots and in the neighborhood’ would be adequately safeguarded’” as required by the ordinance. Brookview at 1243.

As a whole, the Brookview decision had little to do with the technical details or propriety of solar farms. Instead, the Commonwealth Court focused much of its attention on the specific requirements of a zoning ordinance, even going so far as to discount the municipality’s arguments and purported assurances to the applicant that certain ordinance details were unnecessary. The Brookview case serves as a clear directive to those involved in conditional use, and special exception matters, that the text of the zoning ordinance will carry the day. Therefore, conditional use and special exception applicants, or objectors to those applications, would be well-served to focus on the ordinance text when developing a record before a municipality or court on appeal.

Houston Harbaugh’s zoning and land use attorneys assist clients with conditional use, special exception and other zoning issues in Pennsylvania. If you are involved in one of these matters, or have another zoning or land use issue, contact Attorney Brendan A. O’Donnell at 412-288-2226 or odonnellba@hh-law.com

This post is for informational purposes only and is not intended to, nor should it be relied on, to provide legal advice.