Posted by: Patricia Salkin | October 17, 2013

PA Commwlth Court Finds School Permitted to Install Solar Panels As Permitted Accessory Use Since The Use Complied with Requirements of Zoning District

The Northampton Area School District, situated on nineteen acres in the Agricultural/Rural Residential zoning district of Lehigh Township, entered into an agreement with Alliance Energy Group, LLC, to place a solar energy field on four acres at the southeast corner of the property. In October 2010, Alliance sought approval to install the 7,000 solar panels, divided into 280 units, with each unit being 13.5 feet wide by 26 feet long. A zoning officer denied the application, stating that the energy field would constitute a “second principal use” which would require an exception and approval by the town’s zoning Board of Supervisors.

Alliance appealed to the Lehigh Township Zoning Hearing Board (ZHB), arguing that the solar field would not constitute a second principal use, but would rather support the existing land use. That is, the power generated would be used to meet the energy needs of the school. To support its argument, Alliance cited the “accessory uses” provision of the Lehigh zoning code, Sec. 180-25(A), which provided that “solar energy units shall be permitted in any zone and subject to the requirements of that zone.” Alternatively, it argued that if the ZHB were to determine that the panels constituted a second principal use, Alliance sought approval under the “special exception” provision that applied to the school.

During the hearing, Alliance presented a licensed professional engineer to testify to the benefits of the solar panel project. Beside there being an educational component associated with alternative energy, the solar field was projected to save the school district somewhere between two and four million dollars over a twenty year period. The expert witness also addressed Lehigh Township zoning requirements: the energy panels would comply with all building codes and setbacks, and would not disturb the local ecology or surrounding neighborhoods.

In March 2011, the ZHB ruled that the special exception provision was inapplicable because the proposed solar panels did not constitute a second principal use. Further, the ZHB held that the school district had no absolute right to the proposed land use and that a solar field was permissible only if it constituted an “accessory use ‘customarily incidental'” to a public or private school. To determine whether solar fields were “customarily incidental,” the ZHB considered whether such panels were in use by other schools. Since Alliance had not presented any evidence of instances in which schools had previously installed solar panels, the ZHB held that the use was not “customarily incidental” to the school district’s accessory land use rights. Finally, the ZHB supported its denial by stating that solar panels themselves ran contrary to the zoning district’s intended purpose, which was “to allow for the continuation of agriculture [and] to promote the development of open space.”

Alliance filed a land use appeal at the end of March 2011. After hearing oral arguments, the Court of Common Pleas of Northampton County affirmed the zoning board’s denial. Along with Alliance, the school district then appealed to the Commonwealth Court of Pennsylvania, arguing the lower court had erred as to both the school’s accessory use rights and “customarily incidental” land use determinations. Alliance argued that Sec. 180-25(A) specifically granted solar fields as an accessory use in every zoning district of Lehigh Township. Also, since the town ordinance already permitted solar energy units in any zone, subject to zonal requirements, it was unnecessary to separately establish whether solar units themselves were “customarily incidental” to the school district’s principal purpose. The high court agreed.

Based on the plain language of the zoning ordinance, Sec. 180-25(A), the Commonwealth Court of Pennsylvania held that the ZHB should have begun with the premise that solar energy units were an approved accessory use. The ordinance’s only demand was to comply with “requirements of the zone.” In this case, solar units were permitted, so long as they comported with the Agricultural/Rural Residential zoning limitations placed on accessory uses. Specifically, the structures could not exceed 20 feet in height, nor could they be placed in the front yard. Otherwise, the school district was free to proceed with Alliance’s plan to install the solar field.

As to the “special exception” provision, the Commonwealth Court found the lower court’s decision to be a “clear error of law.” In examining whether solar units were consistent with the school district’s land use rights, the ZHB failed to recognize that the term “customarily incidental” was incorporated in the very definition of “accessory use.” That is, according to the Lehigh Township zoning ordinance, Sec. 83-26, an accessory use was defined as a “subordinate use customarily incidental to . . . the main use or building.” Therefore, the court held that the ZHB contravened legislative intent to permit solar energy fields as of right in all zones of Lehigh Township.

According to the Commonwealth Court, the Zoning Hearing Board’s interpretation of the law would force landowners to show that their alternative energy uses were “customarily incidental” to an underlying use – a difficult, if not impossible task. Since the clear intent of the zoning ordinance, Sec. 180-25(A), was to promote the use of clean, renewable energy sources, the Commonwealth Court reversed and remanded the case. And so it was that on April 9, 2013, after a two and a half year struggle, the ZHB was finally directed to approve Alliance’s application to install a solar energy field at Lehigh Elementary School.

The PA Supreme Court denied the appeal on 10/2/2013.

Northampton Area School Dist. v. Zoning Hearing Bd. of Twp. of Lehigh, 64 A.3d 1152 (Pa. Commw. Ct. 4/9/2013).

The opinion can be accessed at:


  1. Shameful.

  2. A good judgement after a long struggle..

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