Renewable Energy, Zoning and Land Use

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.

What is a Conditional Use?

A conditional use is a type of land use under Pennsylvania law. While its name may suggest a level of uncertainty about whether that land use is allowed, that is not the case. There is an established process for conditional uses under the law. Lack of familiarity with the conditional use process can have a negative impact on those seeking a conditional use or opposing a conditional use.

A conditional use is a land use that has been approved for a particular zoning district, as long as the specific proposal satisfies the standards that are contained in the zoning ordinance. Ligo v. Slippery Rock Township, 936 A.2d 1236, 1242 (Pa.Commw. Ct. 2007). In fact "a conditional use is nothing more than a special exception which falls within the jurisdiction of the municipal legislative body, rather than the zoning hearing board.” Bailey v. Upper Southampton Township, 690 A.2d 1324, 1326 (Pa. Commw. Ct. 1997).

Like a special exception, the first step when addressing a conditional use is to look to the zoning ordinance to see if the land use in question is identified in the particular zoning district where it is being proposed. The zoning ordinance will contain criteria for the conditional use that the applicant must satisfy. Ligo, 936 A.2d at 1242.

A conditional use application is considered by the governing body of the municipality - for example, township supervisors or borough council. There must be at least one public hearing regarding the conditional use. 53 P.S. § 10913.2; Luke v. Cataldi, 932 A.2d 45 (Pa. 2007). A "record" is created at the conditional use public hearing(s) where witnesses testify and evidence is received. 53 P.S. § 10908. At conditional use public hearings, the chairman of the governing body has the authority to administer oaths and a stenographic transcript of the hearing must be kept. 53 P.S. § 10908; Nowak v. Zoning Hrg. Bd. of Bridgeville Borough, 445 A.2d 1350, 1351 (Pa. Cmmw. Ct. 1982). Parties at conditional use hearings have the right to be represented by counsel and witnesses are subject to examination and cross-examination. 53 P.S. § 10908.

Based on the record presented to it, if the municipal governing body concludes that the conditional use applicant met its burden to demonstrate that the proposed conditional use satisfies the ordinance requirements, the conditional use applicant is entitled to the conditional use, and the burden shifts to the objectors. HHI Trucking & Supply, Inc. v. Borough of Oakmont, 990 A.2d 152 (Pa. Commw. Ct. 2010). Objectors to a conditional use must prove, to a high degree of probability, that aspects of the proposed conditional use will adversely impact the health, safety and welfare of the community in ways not expected by the legislative body when it established its list of approved, conditional uses.East Manchester Zoning Hearing Board v. Dallmeyer, 609 A.2d 604, 610 (Pa. Commw. Ct. 1992). Conditional use determinations can be appealed to the court of common pleas after a decision is rendered. 53 P.S. § 11002-A. Unless the court of common pleas decides to receive new evidence, a court considering an appeal from a municipal governing body’s approval/denial of a conditional use is limited to considering what is in the "record" created at the hearing(s) before the governing body. Alridge v. Jackson Township, 983 A.2d 247, 260 (Pa. Commw. Ct. 2009).

It is important that property owners seeking approval for a conditional use, or opposing a conditional use, recognize the formal nature of the conditional use process. Even though conditional use hearings occur at the municipal building, and before an elected body that residents may be familiar with from attending meetings, the conditional use process does not function like the bi-weekly or monthly meetings where the governing body addresses residents’ concerns regarding matters like the budget, road paving and snow plowing.

When reviewing conditional use applications, a municipal governing body functions as a quasi-judicial body, acting in a different role than its legislative function. See, In re Arnold, 984 A.2d 1 (Pa. Commw. Ct. 2009). At conditional use hearings before the governing body, “the board cannot simultaneously fulfill both of its roles as an adjudicator and as the governing body representing the municipality” so “the board and the municipality must be treated as separate entities, because the board must avoid even the appearance of bias or impropriety.” Marshall v. Charlestown Township Board of Supervisors, 169 A.3d 162, 166 (Pa. Commw. Ct. 2017). Accordingly, a governing body functions differently when considering conditional use hearings versus its day-to-day legislative role and those participating in conditional use hearings should prepare for something more akin to a court proceeding than a standard municipal meeting.

Whether you are seeking conditional use approval, opposing a proposed conditional use, or appealing from a conditional use determination, the zoning and land use attorneys at Houston Harbaugh can help. Call attorney Brendan A. O'Donnell by phone at 412-288-2226 or by email at odonnellba@hh-law.com.

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 energyoil 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
Head shot photo of Pittsburgh, Pennsylvania Oil and Gas Lawyer Brendan O'Donnell at Houston Harbaugh

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.