Court Rules Onsite Renewable Energy Permitted in All Zoning Districts

In a hugely important judicial decision advancing onsite renewable energy, the Commonwealth Court of Pennsylvania has found ground mounted solar photovoltaics to be an “accessory use” permitted as of right in all zoning districts.

While the benefits, environmental and otherwise, of onsite renewable energy abound, installations of solar panels and small wind turbines are increasingly meeting challenges from zoning regulations. Traditional public utilities often cause their infrastructure to be exempt or permitted as of right, but local zoning ordinances have increasingly been interpreted to find onsite energy facilities (including solar panels) to be a “second principal use” on a property where zoning only permits a single principal use on any property. Such zoning interpretations risk stalling a key segment of the clean energy sector.

Northampton Area School District owns 19 acres in an Agricultural/ Rural Residential zoning district. Lehigh Elementary School is located on the property. The school sought approval to install a solar energy field on 4 acres of the property to generate electric power for the school. The solar energy field would consist of 7,000 solar energy panels, divided into 280 individual units, with each complete unit being approximately 13.5 feet wide and 26 feet long.

The Zoning Officer denied the application and opined that the principal use of the property was public education and the proposed use constituted a “second commercial principal use” of the property. The Zoning Officer also concluded that the zoning ordinance did not provide for the proposed principal use and, therefore, the use required a Conditional Use hearing.

The school argued that the proposed use was “to support the existing use,” i.e., generate solar energy to be used to meet the energy needs of the school.

The court agreed with the school finding that the plain language of the section of the Zoning Ordinance dealing with “Accessory Uses and Structures” states that solar energy units are permitted as an “accessory use” in any zone, so long as they meet the “requirements of the zone” (i.e., height, area, setback and coverage standards). “That should have been the extent of the .. inquiry.”

The court concluded the school could install the solar panels as an accessory use to the school. The case did not address the implications of the school selling power back to the grid, ground mounted solar photovoltaic as a principal use in that agricultural zoning district, or a host of other possible scenarios.

And while the case is one in a significant trend of allowing onsite renewable energy, many zoning ordinances in the U.S. date back to the early 20th century predating modern alternative energy. With ASHRAE 189.1 making mandatory and LEED awarding credits for onsite renewable energy, it is time to modernize and green zoning ordinances.

The case is Northampton Area School District v. Zoning Hearing Board of the Township of Lehigh

Article by Stuart Kaplow, appearing courtesy Green Building Law Update.