Background
Formation Energy obtained an option to lease roughly 37 acres of residentially zoned land in South Union Township for a solar farm. The township’s 2021 ordinance allowed solar photovoltaic systems throughout the municipality only as accessory uses. In January 2025, the supervisors adopted another ordinance authorizing photovoltaic power-generation facilities as a primary use by special exception in light-industrial districts.
Formation filed a procedural-validity challenge, asserting defects in the notice used to enact the 2025 ordinance. It contended that before the amendment its project could have qualified in the residential district as a “public service facility,” a category permitting power plants by special exception. The Fayette County trial court sustained preliminary objections and dismissed the challenge.
On appeal, Formation argued that its lease option made it a landowner under the Pennsylvania Municipalities Planning Code and that the new ordinance injured its ability to pursue approval. The dispute required the Commonwealth Court to distinguish statutory landowner status from traditional standing to challenge the enactment process.
The Court’s Holding
In a nonprecedential memorandum by Judge Dumas, the Commonwealth Court affirmed for lack of standing. Section 5571.1 of the Judicial Code supplies the route for a procedural challenge to an ordinance but does not eliminate ordinary standing requirements. Formation therefore had to show a substantial, direct, and immediate interest—an injury different from the general public’s interest in lawful municipal action—regardless of whether its option fit the Planning Code’s definition of landowner.
The alleged injury was not caused by the 2025 amendment. The zoning ordinance defined a public service facility as specified infrastructure erected or operated by a utility, municipality, or governmental agency. Formation was neither a public body nor an entity shown to be regulated as a utility. Its proposed customer-generator solar operation therefore did not fall within that category on the pleadings.
More fundamentally, the 2021 solar ordinance already limited every photovoltaic system installed after its effective date to accessory-use status in all zoning districts. Even if Formation once could have sought approval as a public service facility, the earlier law—not the challenged 2025 amendment—eliminated that possibility. Without a causal connection between the alleged procedural defect and a concrete harm, Formation was not aggrieved and could not litigate the amendment’s validity.
Key Takeaways
- A party using the Judicial Code’s ordinance-challenge procedure still must satisfy traditional Pennsylvania standing rules.
- A lease option or statutory “landowner” label does not by itself prove injury from the particular ordinance challenged.
- Standing requires a causal link between the new enactment and loss of a legally available development path.
- Developers should evaluate earlier zoning amendments and defined-use terms before framing a procedural challenge.
Why It Matters
Formation Energy shows why renewable-energy developers must map the full zoning history, not just the most recent amendment. A procedural defect is not enough if an older, unchallenged provision independently prevents the proposed use. Counsel should identify the exact approval route available immediately before and after enactment and document how the client’s regulated status fits each defined term.
Municipal lawyers can use the decision to separate merits questions from standing at the preliminary-objection stage. If the developer’s asserted project was already unavailable under existing law, the later ordinance may not produce the direct and immediate injury needed for judicial review.