MPC Rules for Data Centers and Solar Farms

Written by Andrew Miller and Katelin Carter, Law Student Intern

When does a data center, solar farm or wind farm ordinance have to be adopted in accordance with the MPC?

In Pennsylvania, there are key procedural differences in the adoption of a land use ordinance versus a general health and safety ordinance.  Municipalities and developers alike must understand and assure compliance with the requirements in the Pennsylvania Municipalities Planning Code, 53 P.S. §§ 10101-11202 (MPC) for adoption of land use ordinances.  Part of the analysis requires understanding whether the ordinance is a land use ordinance triggering the MPC requirements for adoption or a general health and safety ordinance with much more lax adoption procedures.  The requirements are particularly relevant for developers of new and emerging land uses where new ordinances and amendments may be adopted to regulate the uses at any time.  Data center developers, solar developers, wind project developers and other developers of emerging uses should therefore pay close attention to the content and procedural rules for any new or amended ordinance. 

Local municipal governments in Pennsylvania have only the powers expressly granted to them by the state legislature.  The power to regulate land use arises from the MPC, the Pennsylvania land use statute, not from any general health and safety authority otherwise granted to municipalities.  A zoning ordinance or a subdivision and land development ordinance (SALDO) must always be adopted in accordance with the MPC.  But many other ordinances may also regulate land use or at least flirt with the regulation of land use.  Most common in the recent past are ordinances to regulate data centers, solar farms, wind farms, battery storage facilities and short-term lodging rentals.  All of these uses are relatively new in many places and so ordinances have been adopted to place guide rails on the uses.  Many times, the zoning ordinance is amended directly to incorporate regulations for the use.  In those cases, the MPC must clearly be followed.  But we also many times see a stand-alone ordinances adopted to regulate data centers, solar farms, wind farms, battery storage facilities or other similar uses.  Many times these stand-alone ordinances are adopted in places without zoning as a short cut to regulate to the use without the expense and controversy of adopting a full zoning ordinance.  But stand-alone ordinances can also be land use ordinances in disguise requiring compliance with the MPC procedural requirements.    

In order to determine when a stand-alone ordinance is a land use ordinance we may look to the case law in Pennsylvania for guidance.  Not all stand-alone ordinance provisions have been reviewed by the courts but some common types of provisions have been examined.  We can summarize the outcomes of those cases as follows:

Provisions that are hallmarks of land use regulation requiring compliance with the MPC:

• Setbacks.  A “building permit ordinance” regulating the setbacks of buildings from streets has been declared a zoning ordinance requiring compliance with he MPC.  See Board of Supervisors of Franklin Township v. Meals, 426 A.2d 1200 (Pa. Cmwlth. Ct. 1981); Frustaci v. Greene Township Board of Supervisors, 2011 WL 10840742 (Pa. Cmwlth. Ct. Nov. 17, 2011).  However, where the power to regulate a use arises pursuant to other authority such as the Second Class Township Code, the regulation of setbacks may not require adherence to the MPC.
• Lot Size.  Lot sizes have been held to require compliance with the safeguards of zoning laws for adoption.  See Board of Supervisors of Upper Frederick Township v. Moland Development Co., 339 A.2d 141 (Pa. Cmwlth. Ct. 1975).
• Designation of an Area or Zone for a Particular Use.  The designation of the location within the municipality for a particular use amounts to zoning subject to the requirements of the MPC.  See Nalbone v. Borough of Youngsville, 522 A.2d 1173 (Pa. Cmwlth. Ct. 1987).      
• Special Exceptions, Conditional Uses and Variances.  Ordinances providing for special exceptions or variances have been held to require compliance with the safeguards of zoning laws for adoption.  See Nalbone v. Borough of Youngsville, 522 A.2d 1173 (Pa. Cmwlth. Ct. 1987); Borough of Edgeworth v. MacLeod, 456 A.2d 682 (Pa. Cmwlth. Ct. 1983); Board of Supervisors of Upper Frederick Township v. Moland Development Co., 339 A.2d 141 (Pa. Cmwlth. Ct. 1975); Brunner v. Upper Makefield Township Zoning Hearing Board, 315 A.2d 359 (Pa. Cmwlth. Ct. 1974). 
• Solar Permits.  We are also seeing many solar ordinances being adopted with solar permit hearing provisions intended to loosely track a conditional use but not actually called a conditional use.  The only authority for a municipality to regulate solar facilities arises in the MPC.  These hearings are also indistinguishable from conditional use hearings and we, therefore, believe these ordinances are subject to the MPC adoption procedures.  We believe these permit hearing provisions constitute zoning regulation requiring compliance with the MPC adoption procedures.    
• Impact Fees.  An impact fee such as a fee intended to compensate a county for decreases in property values due to development of a hazardous waste site are invalid.  Only impact fees allowed by the MPC and adopted in accordance with the procedural requirements of the MPC are permissible.  See Land Acquisition Services, Inc. v. Clarion County Board of Commissioners, 605 A.2d 465 (Pa. Cmwlth. Ct. 1992).

Provisions that are hallmarks of a general health and safety ordinance:

• Setbacks and Districts for Junkyards and Landfills.  Municipalities may regulate setbacks for junkyards and landfills through the specific powers granted under 53 P.S. § 65708 to regulate such facilities.  This is a specific exception to the general principal that regulation of setbacks requires compliance with he MPC. See IA Construction Corporation v. Township of Bradford, 598 A.2d 1347 (PA. Cmwlth. Ct. 1991); Mt. Joy Township v. Davies Used Auto Parts, 472 A.2d 1172 (Pa. Cmwlth. Ct. 1984).  Likewise, municipalities may designate zoning districts for landfills without the ordinance being considered a zoning ordinance.  See Land Acquisition Services, Inc. v. Clarion County Board of Commissioners, 605 A.2d 465 (Pa. Cmwlth. Ct. 1992).
• Steep Slope, Landslide and Floodplain Regulations.  An ordinance regulating the location of timber and logging to minimize floods, landslides, and dangerous stormwater runoff; to prevent damage to roads, damage to drains, damage to public utilities, damage to watercourses, fire hazards, and reduction in property value; and to enhance the natural beauty and environment held to be allowed under general police powers rather than zoning regulation.  See Taylor v. Harmony Township Board of Commissioners, 851 A.2d 1020 (Pa. Cmwlth. Ct. 2004). 
• Stormwater Regulations.  Stormwater regulations have been held to be permissible exercise of general police powers rather than zoning regulation even where the regulations establish setbacks and utilize other hallmarks of zoning.  Such ordinances have as their primary purpose the regulation of stormwater rather than any particular land use and, therefore, do not constitute zoning.  The authority for municipalities to regulate stormwater also arises under several independent sources such as the Federal Clean Water Act and the Pennsylvania Clean Streams Law.  See Delchester Developers, L.P. v. Zoning Hearing Board of London Grove Township, 161 A.3d 1081 (Pa. Cmwlth. Ct. 2017).   

A few important threads run through the cases mentioned.  When the primary purpose of an ordinance is to regulate a new use that will be established on the land and will require a land development plan for the future development, the ordinance is much more likely to be a land use ordinance subject to the MPC.  However, if the primary purpose of the ordinance is to only regulate a health and safety concern that impacts a use (such as steep slopes, floodplains or storm water) then the ordinance is likely to be only a general police power ordinance.  Likewise, if the authority to regulate a use arises outside the MPC (such as junkyards and landfills), the ordinance is also likely to be only a general police power ordinance. 

Based on these general concepts, we believe that most data center, solar farm and wind farm ordinances that limit the location of facilities to specific locations or establish setbacks, lot sizes or hearing procedures should be considered land use ordinances subject to the requirements of the MPC.  Importantly, the MPC specifically states as one of its purposes “to promote the conservation of energy through the use of planning practices and to promote the effective utilization of renewable energy sources.”  53 P.S. § 10105.  No other general laws provide for the regulation of solar farms or wind farms specifically.  Therefore, solar farm and wind farm ordinances in particular should be considered land use ordinances because the power to regulate them arises expressly from the MPC.    

Municipalities should be careful when adopting data center, solar farm or wind farm ordinances without following the MPC as they could be challenged.  We believe those ordinances could be invalidated by Pennsylvania’s courts because the primary purpose of those ordinances in most cases is to regulate the location and use of land for a specific purpose.   

Whether you’re drafting, adopting, or challenging an energy ordinance, MPL Law Firm’s land use attorneys can help you navigate the MPC with confidence. Request a consultation today.