Northampton Area Sch. Dist. v. Zoning Hearing Bd. of the Twp. of Lehigh

• Decision Date: 09 April 2013
• Citation: 64 A.3d 1152
• Parties: NORTHAMPTON AREA SCHOOL DISTRICT, Metrotek Electrical Services, Co. a/k/a Alliance Energy Group, LLC, Appellants v. ZONING HEARING BOARD OF the TOWNSHIP OF LEHIGH, Northampton County and Lehigh Township.
• Court: Pennsylvania Commonwealth Court

64 A.3d 1152

NORTHAMPTON AREA SCHOOL DISTRICT, Metrotek Electrical Services, Co. a/k/a Alliance Energy Group, LLC, Appellants

v.ZONING HEARING BOARD OF the TOWNSHIP OF LEHIGH, Northampton County and Lehigh Township.

Commonwealth Court of Pennsylvania.

Argued Dec. 10, 2012.

Decided April 9, 2013.

Blake C. Marles, Bethlehem, for appellants.

Thomas M. Caffrey, Allentown, for appellee Zoning Hearing Board of the Township of Lehigh, Northampton County.

James F. Preston, Bethlehem, for appellee the Township of Lehigh.

BEFORE: McGINLEY, Judge, and SIMPSON, Judge, and FRIEDMAN, Senior Judge.

OPINION BY Judge McGINLEY.

Northampton Area School District (School District) and Alliance Energy Group, LLC (Applicants) appeal from the order of the Court of Common Pleas of Northampton County (common pleas court) which affirmed the Lehigh Township Zoning Hearing Board's (ZHB) denial of Applicants' request for approval to install a solar energy field as an “accessory use.”

The School District owns nineteen acres in the Agricultural/Rural Residential (A/RR) Zoning District of Lehigh Township (Property). The principal use of the Property is “public education.” The “Lehigh Elementary School” (School) is located on the Property.

In October 2010, Applicants sought approval to install a solar energy field on four acres located at the southeast corner ¹ of the Property to generate electric power to 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 proposed use constituted a “second commercial principal use” of the Property.² The Zoning Officer also concluded that the Zoning Ordinance did not provide for the proposed use and, therefore, the use required a Conditional Use Hearing before the Board of Supervisors.

On December 8, 2010, Applicants appealed to the ZHB. Applicants argued that the proposed use was not a second principal use. According to Applicants, the purpose of the solar energy field was “to support the existing use,” i.e., generate solar energy that would be used to meet the energy needs of the school. It would not be used to supply energy to any other party. They argued that the use was a permitted “accessory use” under Section 180–25(A) entitled “Accessory Uses—Alternative Energy Systems” which provided: “Solar energy units shall be permitted in any zone and subject to the requirements of that zone.” (Emphasis added). In the event the ZHB deemed the use a “second principal use” Applicants sought “special exception” approval. Two public hearings were held on February 2, 2011, and February 17, 2011.

Applicants presented the testimony of Robert Toedter (Toedter), a licensed professional engineer. Toedter testified that the solar energy field was desirable because the School District would obtain energy at a significantly lower cost, and save between two and four million dollars over a twenty-year term. Hearing Transcript, February 2, 2011, at 25–26; Reproduced Record (R.R.) at 51 a52a. He explained that the solar energy field would also provide an educational component because the elementary and high schools could run programs regarding the application of solar energy, power and electricity. H.T. at 24; R.R. at 50a. He explained that the solar energy panels would comply with all building codes, and comply with all appropriate setbacks and requirements of the A/RR Zoning District. He also confirmed the solar energy panels would create no noise, no glare, no vibration, and, in his opinion, there were no deleterious effects on the surrounding neighborhoods. H.T. at 27–28; R.R. at 53a–54a. The solar energy field would be surrounded by vegetation. There would be no soil disturbance, and the solar energy panels would be weather and wind resistant.

On March 10, 2011, the ZHB issued a written decision which consisted of two separate rulings. First, the ZHB concluded that the proposed use did not constitute a “second principal use” which required “special exception” approval. The ZHB also rejected Applicants' argument that Section 180–25(A) of the Zoning Ordinance permits a solar energy field as an accessory use “as of right” in the A/RR Zoning District.

On the second issue, the ZHB reasoned that Section 180–25(A) allows solarenergy units ³ subject to the “requirements of the zone.” The ZHB noted that the Property was located in the A/RR Zoning District, which permits private and public schools by special exception. The ZHB looked to Section 180–94(A)–(G) ⁴, which outlines the special exception standards for public and private schools in the A/RR Zoning District, specifically Section 180–94(G) which permits “accessory uses customarily incidental” to a public and private school. The ZHB concluded that “in accordance with the requirements of the A/RR District—the zone in which the subject property is located, the proposed solar field is permitted only if it constitutes an ‘accessory use customarily incidental’ to a public or private school.” ZHB Decision, March 10, 2011, at 15.

The ZHB relied on Hess v. Warwick Township Zoning Hearing Board, 977 A.2d 1216 (Pa.Cmwlth.2009), for the definition of “customarily incidental:”

‘Customarily incidental’ is best understood by invoking an objective reasonable person standard. Under the standard, we may look not only at how frequently the proposed accessory use is found in association with the primary use (if such evidence is available, it certainly is relevant) but also at the applicant's particular circumstances, the zoning ordinance and the indications therein as to the governing body's intent regarding the intensity of land use appropriate to the particular district, as well as the surrounding land conditions and any other relevant information, including general experience and common understanding, to reach a legal conclusion as to whether a reasonable person could consider the use in question to be customarily incidental. This approach respects the need for an understandable legal standard and the flexibility that is a necessary component of the analysis. (Emphasis added).

Hess, 977 A.2d at 1224.

Pursuant to Hess, the ZHB went on to consider how frequently solar energy panels were found associated with a school. It noted that Applicants did not present any evidence of “other instances” in which the same or a similar type of solar energy panels were used to generate energy to a school. The ZHB indicated that it, therefore, had “no reason to believe that a solar field like the one proposed here has ever been constructed and used in association with a school facility.” ZHB Decision, March 10, 2011, at 23.

The ZHB also considered the purpose of the A/RR Zoning District:

Purpose. It is the purpose of this zone to promote residential areas and requirements for low density uses and to permit agriculture, conservation, recreation and other open space purposes. It is the intent of this zone to provide for residential development at densities that maintain a rural, open character and continue to rely upon on-site facilities; to provide for adequate housing opportunities by allowing a variety of housing choices; to provide sufficient light, air and privacy through adequate regulation of building density and placement and size; and to allow for the continuation of agriculture to promote the development of open space and recreation activities. This zone closely reflects current land use trends and densities within the Township.

Zoning Ordinance, Section 180–16(A).

Continuing with its analysis of whether the solar panels were “customarily incidental” to the school under Hess, the ZHB concluded that each of the 7,000 panels constituted a “structure” as defined in Section 180–15 of the Zoning Ordinance:

[a]ny assembly of materials constructed or erected with a fixed location on the ground, or attached to something having a fixed location on the ground, any portion of which is above the natural surface of the ground.

The ZHB found that the erection of “7,000 structures” within a four-acre area that would otherwise be devoted to open space was “clearly inconsistent with the stated purpose of the A/RR Zoning District to ‘maintain a rural, open character’ and ‘to promote the development of open space and recreation activities.’ ” ZHB Decision, March 10, 2011, at 24.

The ZHB also found that the Property was not an appropriate site because the solar panels would be in close proximity to residential properties.

Based on the above factors enunciated in Hess, the ZHB concluded that while the proposed solar energy field would be locatedon the same lot as the School, and would be subordinate to the School, the solar energy field did not constitute a permitted “accessory use” because such use was not “customarily incidental” to the School.

Applicants filed a land use appeal on March 30, 2011. Lehigh Township timely intervened. After briefs were filed and oral argument held, the common pleas court, based on the record before the ZHB, affirmed in an opinion and order dated March 5, 2012.

On appeal ⁵, Applicants raise four issues: (1) whether the common pleas court erred when it concluded that the proposed solar energy field was not permitted as an “accessory use” where the Zoning Ordinance expressly permitted solar energy units as “accessory uses” in every Zoning District; (2) whether the common pleas court erred when it concluded that the solar energy field was not “customarily incidental” to the School despite specific findings of fact and conclusions of law that the electricity generated by the solar energy field would be used by the School and would replace a substantial portion of the electricity currently used by the School; (3) whether the common pleas court erred when it concluded that solar energy field was not “customarily incidental” to the School based solely on an alleged lack of evidence...