Important Zoning Provisions to Analyze for Prospective Solar Developers

Solar developers should be aware of the fundamental zoning ordinance provisions that will affect a project early on in the due diligence process for identifying potential sites for utility scale solar or solar farms. The following are typical provisions that should be researched and reviewed early on in zoning ordinances. Developers should also check subdivision and land development ordinances for similar or supplementary regulations that will apply to land development plans submitted for the utility scale solar or solar farm. 

Zoning Districts

Identify Zones that allow for utility scale solar or solar farms. Districts may provide for utility-scale solar or solar farms as a permitted use (best), special exception or conditional use.

 

 

  • If no Zones permit utility-scale solar or solar farms, the ordinance may still provide an option for conditional use or special exception under a catchall provision that allows uses not otherwise provided for in the ordinance. 
  • If the Zone you wish to develop on does not allow utility-scale solar or solar farms, a Zoning Map change may be in order.
  • A use variance will often be the least desirable option as these variances are tough to defend if ever challenged, but it is nonetheless an option.  

 

 

Special or Supplemental Regulations

Zoning ordinances will provide additional regulations specific to certain uses. If utility-scale solar or solar farms are allowed under the ordinance, there will almost always be a section of supplemental regulations governing the utility scale solar or solar farm. This is typically the meat of the land-use regulations applying to utility-scale solar or solar farms. 

 

Lot Coverage

Check for lot coverage or impervious area regulations. Solar arrays may be counted as impervious coverage or building coverage. If included, it may be very difficult for a solar developer to meet the lot coverage limitations. 

 

Height Limitations

Look for any height limitations in the solar ordinance. Many solar ordinance provisions defer to the height provisions for the zone in which the proposed solar site will be located. Height limitations are not typically a problem for the solar arrays themselves, but these limitations can present problems for outgoing overhead electrical lines or other accessory structures like lightning rods. 

 

Tree Removal

Many solar ordinances will contain provisions placing limitations on tree removal. This may severely limit or require variances to clear a site, which could add significant cost and time to permitting utility-scale solar or solar farm.  

 

Access Requirements

Provisions that regulate access drive width and location should be reviewed to make sure the utility-scale solar or solar farm can meet the requirements.

 

 

  • If site access will be connected to a state highway, a state Highway Occupancy Permit (HOP) will be required.
  • Access drives will almost always require stormwater management as well. 

 

 

Screening and Landscaping Requirements

Many ordinances require native vegetative screening to screen the utility-scale solar or solar from surrounding properties. These requirements may be very specific. A good screening plan that meets the ordinance requirements can help reduce the concerns of neighbors early on. However, screening requirements that refer broadly to adjacent zoning districts can be overly burdensome and unnecessary. Better ordinance provisions provide for screening requirements that apply to actual uses or structures. 

 

Setback Requirements

All ordinances have setback or yard requirements, which are almost always measured from the street right-of-way line (not the edge of cartway). These provisions may be general to a zone or district or they may be specific to the utility-scale solar or solar farm use. Developers should also review what is allowed or disallowed in a setback, such as fences, parking, access drives, screening, walls, etc. Developers should review setbacks early to identify any need for dimensional variances. 

 

Glare/Noise Requirements

Glare has been frequently overstated as a concern for utility-scale solar and solar farms. With the advancement of panel technology glare has been almost completely eliminated. Nevertheless, many ordinances still require glare studies. Glare study requirements should focus on glare impacting public streets or nearby structures. In the same vein, utility-scale solar and solar farms produce little noise after construction. A developer should still review the ordinance for noise limitations or study requirements, including when the municipality expects these studies to be done. 

 

Fencing

Fence provisions may be in the utility-scale solar or solar farm special regulations, or in other more general fence provisions. Developers should review the provisions to determine whether fences can be in setbacks. Fence opacity and height requirements should also be considered. 

 

Internal Lot Lines

If the land being put together for the utility-scale solar or solar farm spreads across multiple lots, internal lot lines should be reviewed with setback provisions in mind. Setback are usually measured from any lot line, so internal lot lines can greatly reduce usable area. Reverse subdivisions can be incorporated into land development plans. However, reverse subdivision are not possible where the lots to be leased for the utility-scale solar or solar farm are under different ownership. 

 

Compatible Uses

Many zoning ordinances limit lots to one principal use. Because utility-scale solar and solar farms are almost always a principal use, most ordinances do not allow other uses like residences, agrivoltaics or other forms of agriculture to continue even though the solar use is a passive use. Ordinances should be written to allow other compatible uses. Care should also be taken to craft language that allows preservation of existing homesteads and re-establishment of non-conforming uses if the land ever returns to its original use when the solar lease expires.  

 

Decommissioning

Almost all solar ordinances require decommissioning plans at the time of establishing the utility-scale solar or solar farm. Most require posting some form of financial security acceptable to the local municipality to secure the expense of dismantling and removing the utility scale solar or solar farm and restoring the land to its original condition. A developer should review these decommissioning provisions and the timing and amount of the security required as this may vary widely among ordinances. The most favorable ordinances require financial security in an amount that takes into consideration the salvage value of any solar arrays and does not require posting of the surety until after the use has been established. 

For any other questions related (or unrelated) to utility scale solar or solar farm development, please don’t hesitate to email Andy Miller (amiller@mpl-law.com), Cory Dillinger (cdillinger@mpl-law.com) or anyone in our office with questions or comments.

Solar Farm Developers Need to Prioritize an Updated Solar Ordinance or Text Amendment over Variances

With today’s quickly shifting solar landscape, solar developers frequently encounter zoning ordinances which either don’t allow for solar farms or utility-scale solar, or greatly limit this type of development. When a solar developer faces this issue they must understand their options moving forward. Proposing a solar ordinance or amending a previous solar ordinance may seem like a waste of time and resources relative to its benefits, but our firm has seen great benefits from this course of action when compared to seeking variances for a solar farm or utility-scale solar development. Here is a brief explanation comparing the two different approaches: 

Benefits of an Ordinance Amendment

  • Many solar ordinances were written more than a decade ago. More importantly, these ordinances placed an emphasis on residential/rooftop solar rather than utility-scale solar or solar farms.
  • Rather than working towards a variance granted by a non-governing board, the developer may be able to work alongside of the governing board of the municipality in crafting a new solar ordinance or amending a previous solar ordinance. 
  • A comprehensive solar ordinance creates better certainty and predictability to developers, neighbors, and local governments.
  • A comprehensive solar ordinance which outlines specifications for solar farms or utility-scale solar can bolster the local community and attract agrivoltaic farmers.
  • Vast array of local and model solar ordinances to work with as a starting point.

Problems with Variances

  • By nature of a variance, a variance is an exception rather than the general rule.
  • If a use variance is needed, it is likely that dimensional variances are also needed.
  • Dimensional variances can be quite difficult to identify early on.
    • E.g., a solar developer can be granted a use variance and dimensional variances for their proposed development site, but the developer may find a change in layout requires an additional dimensional variance that will delay approval times and open the project back up for challenges and conditions. 
  • Use variances are almost impossible to defend if challenged.
    • To uphold a use variance, the proponent must establish that:
  1. That there are unique physical circumstances or conditions, including irregularity, narrowness, or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to the particular property and that the unnecessary hardship is due to such conditions and not the circumstances or conditions generally created by the provisions of the zoning ordinance in the neighborhood or district in which the property is located;
  2. That because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of the zoning ordinance and that the authorization of a variance is therefore necessary to enable the reasonable use of the property;
  3. That such unnecessary hardship has not been created by the appellant;
  4. That the variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located, nor substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare; and
  5. That the variance, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue.

The second and third element for variances are hard or impossible to establish. What is the land being used for? If the land is already developed or in a beneficial use (such as agriculture) the applicant can’t establish this requirement. The third element goes hand-in-hand with the second. The developer is the proponent of the variance, and therefore, this hardship has likely been self-created by the desire for its particular use.

In addition to the procedural hurdles variances present, an applicant may also be subject to conditions and challenges from a zoning hearing board. A zoning hearing board which may consist of members who have little or no planning background or technical expertise. These members may also base their opinions off of a single presentation on the proposed solar farm or utility-scale solar project. In our firm’s experience, it is almost always more beneficial for a solar farm or utility-scale solar developer to prioritize a solar ordinance or an amendment to an existing solar ordinance rather than relying on unpredictable and unreliable variances.

Determining and understanding the legal framework under which a development project must conform to is but one aspect of a comprehensive and successful utility-scale solar or solar farm project. For any other questions related (or unrelated) to this type of development, please don’t hesitate to email Andy Miller (amiller@mpl-law.com), Cory Dillinger (cdillinger@mpl-law.com) or anyone in our office with questions or comments. 

Pennsylvania Department of Environmental Protection Stormwater Guidelines for Solar Farms

In early 2019, the Pennsylvania Department of Environmental Protection released a Frequently Asked Questions (FAQ) article addressing National Pollution Discharge Elimination System (“NPDES”) permits and requirements for utility-scale solar and solar farm development. Our firm has analyzed this FAQ and addressed what we consider the most important points for utility-scale solar and solar farm developers. 

Why do I need NPDES permits for a solar panel farm?

Pursuant to 25 Pa. Code §102.5(a), if the earth disturbance associated with the construction of the proposed utility scale solar or solar farm is at least 1 acre, NPDES permit coverage is required. Since almost all utility scale solar or solar farms will affect more than 1 acre of land, it is wise to assume that NPDES permit coverage is always needed for these types of projects. 

 

What constitutes “earth disturbance” during development of a solar energy farm?

Each site is unique depending on its own topography, sloping and soil. But, any kind of grading, clearing and grubbing is considered earth disturbance. As well as any disturbance needed for the installation/mounting of the solar devices, including any necessary access roads and support buildings. 

 

How can such minimal earth disturbance affect the underlying land?

According to the Erosion and Sediment Pollution Control Program Manual, even small construction sites can yield the following serious potential hazards:

  1. Exposure of soil to erosive forces;
  2. Increased volumes of stormwater runoff, accelerated erosion and sediment yield;
  3. Alteration of the groundwater regime affecting drainage systems, slope stability and survival of vegetation;
  4. Exposing subsurface materials that are unfavorable to established vegetation; and
  5. Adverse alteration of surface runoff patterns.

Erosion and Sediment Pollution Control Program Manual, PADEP, Pub. No. 363-213-008. 

 

How do I avoid these potential hazards?

Developers proposing utility scale solar or solar farms should locate sites where earth disturbance will be as minimal as possible (flat, cleared and accessible). When earth disturbance is necessary, developers should maximize protection of the existing drainage features and vegetation, avoid soil compaction, and prevent increased stormwater runoff. For more information, see Best Management Practices (BMPs) located in the Erosion and Sediment Pollution Control Program Manual

 

What BMPs can I utilize for my construction site to be considered pervious cover? 

  1. Minimal earth disturbance and grading along with preserving natural vegetative cover via low-impact construction. See BMP 5.6.1-5.6.3. PA Stormwater Best Management Practices Manual, PADEP, Pub. No. 363-0300-002; 
  2. The vegetative cover should have a minimum uniform 90% perennial vegetative cover with a density capable of resisting accelerated erosion and sedimentation. 
  3. The individual photovoltaic panels are organized in a way that:
    1. Allows the passage of runoff between each module.
    2. Allows for vegetative growth beneath the panel and between the arrays.
  4. Solar panels should be situated on a slope of 10% or less.
  5. Find a “sweet spot” for the solar array vertical clearance. A height that is high enough to promote vegetative growth underneath the array, but also low enough to minimize the potential for accelerated erosion between the arrays.

Note: For some solar farms not all of these conditions will be feasible. But, the more a developer is able to do, the more likely their site can maximize pervious coverage. 

 

Are there different requirements for tracked-panel units compared to fixed units?

There are a few noticeable differences. Tracked-panel units will require more land area because they need to be spaced out more due to shading overlap. They also require additional mechanisms to properly track the sun to maximize the direct radiation. The additional land will result in additional earth disturbance, but as long as the BMPs described above are implemented, earth disturbance can still be relatively low. 

 

Can I grow agricultural crops underneath my panels?

Yes, and it is a great way to maximize the use of the land, provided that:

  1. Proposed crops are shade tolerant.
  2. Proposed crops don’t require Moldboard Plowing.
  3. A written erosion and sediment control plan must be developed for agricultural plowing or tilling activities.
  4. The application of herbicides, pesticides, and chemical fertilization is limited to the agronomic needs of the crops.
  5.  Depending on the height of the crops, the height of the panels may need to be increased. As noted above, when panels are placed higher, more controls are needed to address erosion and scour between the panels. 

 

What can I do to better manage wider solar panel modules?

The wider solar panels become, the more difficult it is for adequate vegetative cover to be established and maintained. According to the DEP, additional BMPs can be done to offset this additional width. Infiltration trenches or infiltration berms can be installed down gradient between each row. For more information see PA Stormwater BMP Manual, BMP 6.4.4: Infiltration Trench and BMP 6.4.10: Infiltration Berm and Retentive Grading for additional guidance.

 

 

Are there additional requirements if my proposed construction site needs to be re-graded?

 

If the area needs to be re-graded, soil/landscape restoration and soil amendments should be implemented after the re-grading. For more information see PA Stormwater BMP Manual, BMP 6.7.1: Landscape Restoration and BMP 6.7.3: Soil Amendment and Restoration.

 

For more information please see the Pennsylvania Department of Environmental Protection’s Best Management Practices FAQs for solar farms here

 

NPDES permits and requirements are but one step to developing a comprehensive and successful site plan for a utility scale solar or solar farm project. For any other questions related (or unrelated) to solar development, please don’t hesitate to email Andy Miller (amiller@mpl-law.com), Cory Dillinger (cdillinger@mpl-law.com) or anyone in our office with questions or comments.