SCHOOL DIST. v. ZONING HEARING BD.No. 680 C.D. 2012
64 A.3d 1152 (2013)
NORTHAMPTON AREA SCHOOL DISTRICT, Metrotek Electrical Services, Co. a/k/a Alliance Energy Group, LLC, Appellants
ZONING HEARING BOARD OF the TOWNSHIP OF LEHIGH, Northampton County and Lehigh Township.
ZONING HEARING BOARD OF the TOWNSHIP OF LEHIGH, Northampton County and Lehigh Township.
Commonwealth Court of Pennsylvania.
Argued December 10, 2012.
Decided April 9, 2013.
Blake C. Maries, 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
The Zoning Officer denied the application and opined that the proposed use constituted a "second commercial principal use" of the Property.
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 solar
The ZHB relied on Hess v. Warwick Township Zoning Hearing Board,
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:
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:
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 located
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.
Applicants argue that their proposed solar energy field is permitted as of right on the Property. They contend that the common pleas court misinterpreted Section 180-25(A) of the Ordinance which specifically designates solar energy units as an "accessory use" allowed in every Zoning District. Again, Section 180-25(A) titled "Accessory Uses and Structures" provides, in part:
Applicants argue that the Township has already legislatively determined that solar energy units are "customarily incidental" to every principal use in every Zoning District. It was unnecessary for Applicants to separately and independently establish that solar energy units are "customarily incidental" to a school.
The interpretation of a zoning ordinance is a question of law. A & L Investments. In deciding whether a zoning hearing board correctly interprets a zoning ordinance, this Court must bear in mind that zoning ordinances should receive reasonable and fair construction in light of the subject matter dealt with and the manifest intention of the local legislative body. Appeal of Perrin, 305 Pa. 42, 55, 156 A. 305, 308-09 (1931). A court ascertaining the intent of the drafters of an ordinance, should presume they did not intend a result which is absurd, unreasonable or impossible of execution. Rudolph v. Zoning
After reviewing Section 180-25(A) in context of the Zoning Ordinance, this Court agrees with Applicants. The plain language of the Zoning Ordinance states that solar energy units are permitted as an "accessory use" in any zone. The provision is found in the section of the Zoning Ordinance which deals specifically with "Accessory Uses and Structures." The inclusion of solar energy units in this Section is telling and indicative of the Township's legislative declaration that solar energy units are a permitted "accessory use" so long as they meet the "requirements of the zone.[
The Ordinance does not define the term "requirements of the zone." However, this Court finds that this language clearly and unambiguously refers to the height, area, setback and coverage standards applicable to "accessory uses" in each particular zone. Section 180-16 of the Zoning Ordinance sets forth the requirements for "accessory uses" in the A/RR Zoning District. The only requirements for "accessory uses" in the A/RR Zoning District are the limitation of structure height (20 feet) and the limitation against the placement of an "accessory use" or structure in the front yard. By all accounts, Applicants' proposed use met these standards.
That should have been the extent of the ZHB's inquiry.
The ZHB, instead, looked to the special exception provisions that pertain to a school use in the A/RR Zoning District. The ZHB reasoned that public and private schools were permitted in the A/RR Zoning District by special exception under Section 180-16(C)(12), subject to the "specific criteria" in Section 180-94(G). Again, this Section permits "accessory uses customarily incidental" to the school. The ZHB looked to the "requirements" of Section 180-94(G) to determine whether Applicants' solar energy field use was a permitted "accessory use." This was a clear error of law.
First, "accessory use" is defined in Section 83-26 of the Zoning Ordinance as: "[a] subordinate use or building customarily incidental to, and located on the same lot occupied by, the main use or building." (Emphasis added) The term "customarily incidental" is incorporated within the definition of "accessory use." If solar energy units are permitted as an "accessory use" there is no reason for an applicant to separately establish that they are "customarily incidental" to the principal use when the very definition of "accessory use" requires that such use be "customarily incidental." Because solar energy units were already legislatively declared by the Township to be an "accessory use" for every use in every zone it was unnecessary for the ZHB to inquire into whether the use was "customarily incidental" to a school. By undertaking the inquiry of whether the use was "customarily incidental" to a school, the ZHB overrode the legislative declaration that the solar energy units are an "accessory use." In other words, the ZHB proceeded to decide whether the proposed solar energy field constituted a permitted "accessory use" when that question was
The ZHB's interpretation is also circuitous. Under the ZHB's interpretation solar energy units are a permitted "accessory use" in every zone under Section 180-25(A) so long as the use is permitted as an "accessory use" in each zone. This interpretation is not tenable.
The ZHB's interpretation renders Section 180-25(A) inoperative and the permissive nature of the provision a nullity. The readily-ascertainable intent of Section 180-25(A) was to promote the use of alternative energy systems in each zoning district. The clear intent of Section 180-25(A) was to encourage on-site generation of electric power from this alternative energy source, regardless of the nature of the underlying use. Undoubtedly, the goal of such a policy is to supplant existing off-site sources of electric power generation, rather than traditionally relying on fossil fuels, with clean, renewable energy sources. The ZHB's interpretation would force landowners wishing to further this intent to first demonstrate that such alternative energy uses are "customarily incidental" to their underlying use, which will be difficult, if not impossible, to show given their relative newness and dearth.
This Court concludes that the common pleas court erred as a matter of law when it affirmed the ZHB's dismissal of the Application to install the solar energy field. The order of the common pleas court is reversed.
AND NOW, this 9th day of April, 2013, the order of the Court of Common Pleas of Northampton County in the above-captioned case is hereby reversed. The matter is remanded and the Zoning Hearing Board is directed to approve Northampton Area School District's and Alliance Energy Group, LLC's application to install the solar energy field as an accessory use to the Lehigh Elementary School.
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