A judge upheld Mount Joy Township supervisors’ denial of a conditional use zoning permit required for an industrial-scale solar energy project proposed by Brookview Solar 1.
The proposal would place thousands of solar panels on hundreds of acres along Baltimore Pike (Pa. Route 97) northwest of Littlestown.
In a 43-page document, Adams County Court of Common Pleas President Judge Michael George found “Brookview has failed to demonstrate by credible evidence that the proposed use will not detract from the use and enjoyment of adjacent or nearby lots, substantially change the character of the neighborhood, or adversely affect property values.” George’s ruling was dated Sept. 2.
Brookview’s application “lacks a number of critical details specifically required” by the township zoning ordinance, George wrote.
“There is some truth to Brookview’s position that details might ultimately be flushed out as the Project advances through the approval process, but their interpretation is entirely contrary to the plain language of the Ordinance,” George wrote.
“Brookview’s suggestion that conditional use approval should be granted simply upon their promise of future compliance essentially vitiates the entire purpose of the ordinance,” the judge wrote.
“One simply can’t assess” potential impacts “unless sufficient information is present,” but “this is exactly what the current Brookview application attempts. It is also the exact concern addressed by the Ordinance which requires critical details concerning issues like stormwater management, glare impact, and dimensional details at the time the application is considered for approval,” George wrote.
George ruled an analysis of glare emanating from solar panels, submitted by Brookview, was not enough to demonstrate a lack of adverse impact.
The judge rejected Brookview’s argument that merely submitting an analysis, as required by ordinance, was sufficient.
“Brookview’s interpretation would allow the crayon artwork of a first grader, accompanied by the words ‘the glare produced by the Project would not have an adverse impact’ as being sufficient,” George wrote.
George also wrote that Brookview, during 21 public hearings between January 2020 and March 2021, had not presented an expert witness whom opponents could cross-examine regarding the glare analysis.
The judge also wrote of “Brookview’s failure to demonstrate compliance with the Township’s Chapter 81 Stormwater Management requirements.” George rejected Brookview’s contention that a detailed plan was not required until later in the process.
Brookview cited a letter and testimony from the township zoning officer indicating a stormwater management plan is not required as part of a conditional use application, but George ruled otherwise.
“The suggestion that an individual zoning officer can individually usurp all of these procedural safeguards is nonsensical and offensive to concepts of due process,” the judge wrote.
“Numerous witnesses expressed concern over the Project’s stormwater runoff and the impact it would have on their enjoyment and use of their properties adjoining the Project site,” George wrote.
Brookview’s argument “attempts to rewrite the Ordinance by suggesting entitlement to a conditional use without providing the details which permit the Board, or the parties, the opportunity to evaluate either specific objective requirements of the Ordinance or the Project’s impact on public welfare,” George wrote.
‘Capture a cloud’
“The nature of Brookview’s application reminds one of trying to capture a cloud; the application’s constant shifting of critical details makes definitiveness for meaningful evaluation impossible. Unfortunately for Brookview, the Ordinance requires more,” the judge wrote.
George reached “a similar conclusion” concerning “Brookview’s lack of compliance with the specific requirement that the application identify and access drive and interior travel aisles in compliance with the Township’s subdivision and land development code,” he wrote.
“Brookview has also failed to offer sufficient evidence to prove compliance” with limits on “minimum open space percentage and maximum lot coverage,” George wrote.
Brookview “has failed to prove by credible evidence” that the project would be consistent with the “purpose” of the Baltimore Pike Corridor District (BPCD) as set forth in the township zoning ordinance, George wrote.
Though the purpose seeks “to continue the established mixed use and intensive development pattern along the corridor,” George wrote that the proposed project would “monopolize approximately 10 percent of the acreage in the district for a single use.”
Tie votes last year
Brookview appealed the denial, which resulted from a pair of 2-2 votes in June 2021 by the township board of supervisors.
A motion to approve failed, with Jeffrey Patterson and John Gormont voting in favor and Terry Scholle and Bernie Mazer voting against. A motion to deny also failed, with the ayes and nays flipped. Unable to break the tie was Supervisor David Updyke, who was not present, and who recused himself from the proceedings because he would profit from leasing land he owns to Brookview. Patterson and Gormont are no longer supervisors; Scholle and Mazer continue to serve.
Efforts to contact attorneys representing Brookview were unsuccessful. Attorney Walter Tilley, who represented Updyke and other landowners who favor the solar proposal, declined to comment.
The ruling affects only the approximately 391-acre portion of Brookview’s proposal within the township’s Baltimore Pike Corridor zoning district.
Other site advances
Proceeding separately is another portion in the township’s Agricultural Conservation (AC) district, where solar energy facilities are permitted “by right,” meaning no conditional use permit is needed, but regulations related to land development and other matters still apply.
Township supervisors approved a land development plan last month after negotiating several points with Brookview’s attorneys during the meeting, but construction can’t progress until a final plan is approved for properties totaling 528 acres, of which solar panels would occupy 88 acres. Voting for the approval were supervisors Mazer, Scholle, and Gil Clark. Abstaining were Todd McCauslin and Christine Demas, who were legal parties in opposition to Brookview, but withdrew after being elected last November.
During the same meeting last month, township engineer Erik Vranich said he and township attorney Susan Smith have begun discussions with firms that could review a glare analysis. After Vranich and township Zoning and Code Enforcement Officer Shannon Hare said they lack professional expertise to evaluate the study, the supervisors voted last month to spend up to $20,000 to hire a lighting engineer or equivalent professional to do so. The supervisors can review the professional’s evaluation of the study as they approach a decision on Brookview’s final land development plan, Smith said.
Brookview’s parent company is Florida-based NextEra Energy Resources.