Zoning Doesn’t Mention Solar- Now What?

Written by Andrew Miller

The zoning ordinance does not provide for solar energy facilities  – Now what do we do?

This is a very common question when a solar developer calls us.  Many ordinances in Pennsylvania never anticipated solar development and simply do not address the use in any specific way.  Never fear, though, we can usually still identify a path forward to zoning approval and land use entitlements.  Several options exist which can each be examined in turn:

1. Does the ordinance have any similar uses that can be applied?  Many times an ordinance will not provide for a solar energy facility but will include provisions for “public/private works facilities” or public utility facilities” or “essential services”.  Each will have a very specific definition, but based on the definition may be broad enough to encompass solar.  Usually, these uses are broadly allowed so if a solar project can fit under one of the definitions the likelihood of then having a permitting path may be high.  But beware, some ordinances also define “power plant” or “electric facility” which may also be broad enough to capture a solar facility in the definition.  Usually these uses are strictly limited and may have excessive setbacks and onerous regulations, The “power plant” and electric facility” use contemplates large-scale, carbon fuel power plants that are entirely different from a solar energy facility.
2. Does the ordinance have a catch-all provision for any “use not otherwise provided for”?  Many ordinances have a catch-all provision allowing uses not otherwise provided for as special exceptions or conditional uses.  We have successfully permitted many solar energy facilities under this catch-all.  The permitting process for a project classified as a use not otherwise provided for is not overly complicated.  The applicant has to show the use is similar to other uses in the zoning district and that it will be compatible with he surrounding area.  If the governing board decides the use is compatible, then they will approve the use.  Because there are no special or specific regulations for the use, a governing board will often attach numerous conditions to the approval.  In this way the governing board will right the regulations on a project by project basis.  Many times to win a case as a use not otherwise provided for, we will solicit testimony of a land planning expert or land use attorney to testify and argue the compatibility of the use with the surrounding area.
3. Will the governing board entertain a zoning text amendment?  A governing board may amend its zoning ordinance at any time.  One strategy when the ordinance does not provide for a solar energy facility is to seek an ordinance amendment to add solar provisions.  However, the decision to do so is purely legislative, meaning the governing board must decide to do so voluntarily.  Many (if not most) governing boards simply won’t consider an amendment.  Even if they will do so, this is often a very long and arduous process.  It can easily take six months or longer to approve an amendment.  Public sentiment on solar development often also works against any voluntary amendment. 
4. If all else fails, does a petition for curative amendment with an exclusionary challenge work?  In Pennsylvania, local municipalities and counties must allow for a “fair share” of a land use. Sometimes, if a use such as a solar energy facility, is completely prohibited or not allowed under the zoning ordinance, a landowner or developer may be able to challenge the ordinance.  The challenge may be brought as a curative amendment petition or a substantive validity challenge to the zoning ordinance coupled with a request for site-specific relief.  We view the curative amendment or validity challenge as a last resort.  Both can be procedurally challenging to bring and also time-consuming.  Both are also adversarial to the municipality so generally have a high likelihood of being appealed if successful which lengthens any approval process.  But both offer a way to hold a municipality accountable for its obligations to provide for solar energy in some form.

If you are developing on a parcel subject to a zoning ordinance that does not provide for solar energy facilities, please do not hesitate to contact Andrew Miller, amiller@mpl-law.com, or Dean Reynosa, dreynosa@mpl-law.com, or Cory Dillinger, cdillinger@mpl-law.com, to discuss a successful strategy for your project.