A Muncy attorney provided case law for Muncy Creek Township supervisors to review prior to their decision on conditional use for a concentrated animal feeding (CAFO) operation-solar farm.

Supervisors Eric Newcomer, chair, and Harley Fry II will hold a public meeting and have a verbal decision announced June 25 at 5 p.m., with additional time through July 11 to issue a written decision on both applicants’ conditional use requests.

They are looking at the application for Sunny Side Up Farms, a proposed five-barn 350,000 free-range chicken egg-laying operation and Bollinger Solar LLC, a proposed 52,000 solar panel array on the property zoned for agricultural conservation and residential use on Clarkstown Road. The site lies between Fogelman and Muncy Exchange roads.

Attorney Layne Oden, who lives a half-mile from the proposed site, cited three cases in Pennsylvania of interest.

The first case was Brookview Solar versus Mount Joy Township Board of Supervisors.

The debate referred to a massive, controversial renewable energy dispute in Mount Joy Township, Adams County. It is not two separate solar facilities competing, but rather a proposed $90 million, 1,000-acre industrial solar farm proposed by Brookview Solar I (a subsidiary of NextEra Energy) and the local resistance from Mount Joy Township.

The board decided that the applicant had failed to meet the required criteria because they did not address the element of stormwater, Oden said.

Upon appeal to the trial court, the trial court upheld the denial stating that a zoning officer does not have the legal authority to relax the required conditions to be a conditional use.

At the hearing before the board the objectors came forward with evidence on the detriment to the health, safety and welfare of the community. Their witnesses testified about existing water runoff and potential contamination. The trial court held, and it was not addressed at the Commonwealth Court, but the trial court upheld the denial because the applicant failed to rebut the testimony provided by the objecting parties of the danger to the health, safety and welfare of the community.

A second case cited was of Cogan Properties LLC versus East Union Township Zoning Hearing Board, a Schuylkill County dispute.

“The guy wanted to build a gun range in his backyard, however, he did need the commissioners’ approval,” Oden said.

The issue that went to the Commonwealth Court and the court upheld the fact relevant to the appeal the applicant did not meet its burden to establish the criteria that the proposed use of the property would be compatible with adjoining developments and the character of the zoning district and neighborhood in which the applicant sought to construct the proposed gun range.

“I reiterate it’s not about ‘does the ordinance allow this’,” Oden said, referring to this proposed CAFO solar project. “One of the factors for the board’s consideration is does this proposed use fit within the neighborhood and the adjoining properties?”

Regardless of zoning, there are more residences surrounding this proposed tract than there are farms, Oden said.

The final case for the Muncy Creek Township board to review was West Lampeter Solar 1, LLC v. West Lampeter Township, Lancaster County. It dealt with a proposed solar farm that was going to be an agrivoltaic project with sheep.

The holding by the Commonwealth Court confirmed the trial court, which stated that the state Department of Agriculture specifically advises that a commercial scale solar or “solar farm” does not meet the definition of normal agricultural operation under the Right to Farm Act.

It further held the board’s conclusion that “agrivoltaics does not constitute an agricultural use is unassailable,” Oden said.

The zoning board did not err in holding that the applicant’s solar farm would constitute the principle use and sheep grazing enterprises would not constitute the accessory use.

“The holding of that case basically says agrivoltaics (ain’t) a thing,” Oden said.

Oden questions

evidence

“I don’t think the evidence is here to allow this board to make a fully informed decision on what the applicant proposes to do and what potential effects of that proposed use are,” Oden said.

He also noted the applicant was very gracious in amending its proposed site plans and changing entrances, adding some trees – when requested to do so, the applicant could have just as easily provided a nutrient management plan, or an odor abatement plan or added other facilities to the map for the board’s consideration, Oden said.

“The conspiracist in me thinks there has to be a reason why that was not done,” he said.

“I think it is absolutely within your realm as a board of supervisors to deny this application for failing to meet the requirements to be considered,” he said.

In the event the board does not agree, that is “your right, it happens all of the time,” he said.

Should the board elect to approve the conditional use for the CAFO operation, Oden said he believed it was incumbent upon the board to put as many reasonable conditions as possible to protect the neighborhood.

Among these should be an absolute prohibition of access from Fogelman Road, he said.

“You must be provided with complete information as to stormwater, septic, and utility information prior to approval,” Oden said.

“You must receive a traffic study conducted by an independent third party,” he said.

“I believe a requirement that the applicant test every domestic water well within a half a mile is reasonable,” he said.

“I believe it is further reasonable that that test continue every six months,” he said.

“I believe it is reasonable for this board to require a periodic animal count and verification that the applicant is housing as many chickens as in the proposal,” he said.

“I believe road bonding is to be considered,” he said. “I believe it is reasonable for the applicant to put a water meter in on their private well to confirm what the actual water usage is and its potential effects on the water table,” he said.

Under the solar application, Oden said he believed the plan showed 52,000 panels on 87-plus-or-minus acres. Driving around the block every day, Oden said he did research on the county Geographic Information Systems (GIS) map. He said he discovered that many panels would be like taking the Lycoming Mall, including the building itself, the parking lot, add in the Miele Manufacturing building, the movie theater, Tractor Supply and its parking lot – is 87 acres.

“Imagine that covered in solar panels,” he said.

The township did not have a solar ordinance in effect when the application was filed, which precipitated the need for the conditional use hearing for the solar project.

The use may only be permitted if:

It is similar to and compatible with other uses in the zone where the subject property is located. There is regulation that sets forth the uses in the agricultural and conservation district. “I would submit that 52,000 solar panels are not akin to agricultural use (look at West Lampeter case). It is not a single or to an attached dwelling, it is not equivalent to a mobile home, it is not equivalent to an agri-business, it is not a timbering operation, it is not equivalent to animal kennels or hospitals, or a cemetery.

Special exception is a sawmill, which it is not believed to be equivalent to as a solar farm.

Under conditional uses, the applicant has indicated that the solar energy farm is similar to extraction of crude oil and natural gas conditional use. In this section, in addition to general use requirements all drilling activities will require a lot area of not less than 10 acres. All wells shall be located at least 500 feet from any residential structure.

In any residential district a planted buffer of at least 100 feet in depth shall be installed around the well in order to shield the well from residential uses. Wells shall comply with all requirements of state or federal agencies.

As part of any application for a well the applicant shall identify all state and local roads to be used in the township for construction, operation, maintenance and disassembly of the operation. The township engineer or a qualified third party engineer hired by the township and paid for by the applicant shall document road conditions prior to initiation of the operation and then 30 days after it is complete or as weather permits.

The township may post and bond roads. Any damage caused by the applicant or his contractors shall be promptly repaired at the applicant’s expense.

“While I do not anticipate road damage solely from the construction of solar panels, I think it is still something the township should pursue,” Oden said.

“I believe if the applicant is asking to be treated the equivalent of a gas extraction activity then they should also be required to meet the required setbacks and vegetative buffer zones,” Oden said.

If they are going to have 12 separate solar projects that is a dozen separate lots with appropriate setbacks,” he said.

“I am certain of few things in life but I am absolutely certain that when you guys decided to circulate your nominating positions, this is not what you intended to do with your Wednesday evenings,” he said.

“Your attention to this is appreciated, not only by me but also to the citizens who are sitting behind me,” he added.

Oden said their (supervisors/public) participation in the hearings was appreciated because “without citizen participation the Republic doesn’t function.”