Developer appeals Unity zoning decision against proposed solar farm to Westmoreland court

Developers of a proposed solar farm in Unity have appealed a 3-2 decision by the township zoning hearing board to deny a needed special exception for the project.

The appeal filed recently in Westmoreland County Court claims the board’s Dec. 18 decision against the solar array that is planned for agricultural land along Charles Houck Road was “arbitrary, capricious and an abuse of discretion.”

Filed by Pittsburgh attorney Michael Korns on behalf of Portland, Ore.-based Ninemile Run Solar Master Tenant LLC, the appeal also asserts the board’s decision wasn’t supported by township ordinances or by evidence presented during a lengthy four-part hearing that began June 25.

Korns argued Ninemile Run Solar’s rights to due process and an unbiased decision-making tribunal were violated. Ninemile Run is affiliated with GreenKey Solar.

Korns said the appeal was filed Jan. 17 to meet a 30-day deadline for contesting the zoning decision.

He told TribLive Monday he has since received the zoning board’s written opinion explaining its decision and planned to file amendments adding more information to the Ninemile Run appeal.

He said he could not discuss further details of the legal action.

Unity Zoning Solicitor David DeRose had said the 30-day appeal window should begin when the opinion was issued. That apparently occurred Jan. 17.

The opinion, signed by chairperson Kathy Matta, indicates the zoning board denied the special exception because it found GreenKey’s solar farm development would exceed the maximum 20% “coverage” allowed on the roughly 62-acre lot owned by Joseph Stas.

Matta, Gabe Monzo and Dorothy Zello voted to deny the exception, overruling fellow board members Jackie Nindel and John Inselmini.

The majority of the board rejected GreenKey’s contention that it would be using about 10.65 acres, or slightly less than 17% of the property.

During the hearing, GreenKey representative Tracy Tackett argued the coverage calculation should not include 12-foot gaps in between rows of about 12,800 solar panels proposed for the site.

The board instead accepted the interpretation of township zoning officer Harry Hosack, who said he would measure the perimeter around the installed array and count all the area inside as coverage.

That board determined that “development of a solar farm with a solar panel array should be looked at as more of a unit and not as almost individual panels, therefore occupying more than 20% of the area in question.”

The board said GreenKey “should have followed through (as agreed upon) with a detailed site plan to satisfy the questions and concerns that were raised in the zoning hearings concerning the exact location of the solar panel arrays, the fencing to be installed, the size and scope of the solar panel arrays, location of the driveway and access points.”

Tackett told the board such detailed drawings normally weren’t required at the initial step of seeking zoning approval but would be submitted later when GreenKey would seek approval of its land development plan.

The zoning board indicated, in this case, it was expecting a more detailed site plan to be submitted for the final Dec. 18 zoning hearing, adding, “The applicant did not object to producing such a plan.”

Ordinance changes eyed

At their meeting Thursday, the Unity supervisors are expected to consider proposed changes to township regulations that would not affect the GreenKey appeal but would set new guidelines for other potential solar arrays going forward.

Under a proposed ordinance amendment, solar farms would no longer be considered in Unity’s agricultural zone but would be permitted only in a conservation zone along the township’s eastern border.

In another change, any structure or equipment involved in the operation of a solar farm must be at least 500 feet from any adjoining lot — an increase from the current 100-foot setback.

The revised ordinance spells out other requirements that the zoning board found lacking in the GreenKey proposal: a scaled drawing of the site that is prepared by a surveyor and shows the solar farm’s operating area; and a “coverage area” determined by measuring along the perimeter of all solar panels, buildings, substations or other accessory structures.

On Thursday, the supervisors also are expected to vote on revised guidelines for student housing and for use of all-terrain vehicles on off-road trails.