The owners of a solar farm who want to locate it in Old Lycoming Township are suing the board of supervisors in a land use appeal before the state Supreme Court.

Daughertys Run Road Solar 1 LLC, a limited liability company, whose principal place of business is New Leaf Energy, Lowell, Massachusetts, is the lessee of property at 916 Daughertys Run Road.

The property is located in what is known as an agricultural rural zoning district of the township. On July 24, the company submitted a conditional use application to construct a solar farm at the location.

On Sept. 24, a hearing was held on the application. At the hearing, the board approved the application for the project with certain conditions. In October, a decision was made to approve the project but with several conditions. The solar company is not appealing the entire decision, only condition No. 1: “The project shall be set back 500 feet from the property line of adjacent properties with existing residential structures.”

Township manager Ann-Marie Brown noted that the applicant’s condition use application was provided to the township planning commission, and the planning commission recommended the board approve the conditional use applications with the conditions.

Township Supervisor Richard Metz and former Supervisor David Shirn, then chairman, approved the project with the conditions. Supervisor Justin Kastner abstained from voting.

Through its attorney, Jeffrey J. Malak, the solar company argues that the action of the board in setting forth condition was “arbitrary, capricious, contrary to law, an abuse of discretion, and contrary to the action,” which should have been taken in light of the evidence presented at the hearing.

He argues that conditions imposed on a conditional use approval must be reasonable as the township may deem necessary to implement under purposes of the act and the zoning ordinance set forth in Pennsylvania Municipalities Planning Code.

Additionally, conditions must be reasonable and must find support in the record warranting the imposition of such conditions based on state caselaw.

As such, the imposition of a condition when there is no evidence in the record to support it is “manifestly unreasonable and an abuse of discretion,” according to Malak.

He argues the board erred when it imposed the condition because the condition is unreasonable.

Moreover, he argues the board erred because there is no evidence in the record to support the condition and erred because the condition is not necessary to implement the purposes of the code and/or zoning ordinance.

Malak, furthermore, said the board erred because the property is located in an agricultural rural zoning district, where the setbacks from adjacent property lines are: front 40-65 feet, side-20 feet, rear-50 feet.

Nowhere in the zoning ordinance does it require or mention a 500-foot setback from adjacent property lines, he said.

The board erred because the project, as approved and submitted, has a front setback of 780 feet, a side setback of 49 feet, and a rear setback of 54 feet, which meets and/or exceeds all zoning ordinance required for a project located in this specific zoning district, he said.

The action was not supported by the testimony and evidence of record, and thereby the decision should be reversed and set aside, Malak said.

As for what might be next, Malak said he expected the court judges to sustain the appeal of the solar farm and remove the condition set forth in the board’s decision.

No money damages are requested and it is not a class action claim.