Background
Veterans Way Solar 1, LLC proposed constructing a 30-acre “agri-voltaic system” — combining solar energy production with pollinator plants — in Tyrone Township’s Agricultural/Residential District in Perry County. The project required zoning approval, and the developer argued the system qualified as a “Public Utility Facility” under the Township Zoning Ordinance, which permits such facilities in any zoning district. The Ordinance defines a “Public Utility Facility” as “a structure and its equipment, where necessary, for the transmission and exchange of power.”
The case followed a tortuous procedural path. The initial zoning officer (who was improperly serving simultaneously as a township supervisor) denied the application. After Common Pleas remanded on that procedural defect, a different zoning officer approved the project, finding it met the “Public Utility Facility” definition. The Township then appealed that approval to the Zoning Hearing Board, which reversed, reasoning the system could not be a “Public Utility Facility” because the applicant was not a public utility. Common Pleas affirmed the denial, ultimately clarifying in its Rule 1925(a) opinion that the dispositive issue was that the solar farm was designed to generate power rather than transmit it.
The developer appealed to the Commonwealth Court, arguing the Ordinance’s broad language encompassed the solar farm’s transmission infrastructure and that, at minimum, any ambiguity should be construed in favor of the landowner.
The Court’s Holding
The Commonwealth Court affirmed. Writing for a unanimous panel, Judge Wallace held that the Ordinance’s definition of “Public Utility Facility” — covering structures for the “transmission and exchange” of power — does not encompass power generation facilities. Although the solar farm would include electric lines to transmit generated electricity to the PPL grid, the court reasoned that the primary purpose of the system was to produce electricity, with transmission being merely secondary. The presence of transmission infrastructure on the property did not bring the solar panels or the system as a whole within the definition.
The court relied heavily on its prior decision in Grant v. Zoning Hearing Board of the Township of Penn, 776 A.2d 356 (Pa. Cmwlth. 2001), which drew a clear line between power generation and power transmission for zoning purposes. It also noted that the Ordinance separately addresses “solar collectors and solar-related equipment” only as appurtenances to buildings or accessory structures — confirming the drafters did not intend to permit commercial-scale solar farms through the “Public Utility Facility” designation. Accepting the developer’s interpretation, the court warned, would permit construction of coal-fired, gas-fired, or nuclear power plants in any township district simply because the generated power would connect to the existing grid — an absurd result.
The court also rejected the developer’s judicial-admission argument. The Township and Board had taken seemingly inconsistent positions — first arguing the system was a “Public Utility Facility” that was simply in the wrong district, then arguing it was not a “Public Utility Facility” at all. But the court held that the proper interpretation of an ordinance is a question of law, not fact, and therefore cannot be the subject of a judicial admission.
Key Takeaways
- Under Pennsylvania zoning law, a commercial solar farm is a power generation facility, not a power transmission facility, and does not qualify as a “Public Utility Facility” under ordinance language permitting structures for the “transmission and exchange” of power.
- The presence of on-site transmission infrastructure (power lines connecting to the grid) does not transform a generation facility into a permitted “Public Utility Facility” — the primary purpose of the use controls.
- The rule that zoning ambiguities should be resolved in favor of the landowner yields to the principle against absurd results — here, permitting any power plant in any district.
- Inconsistent legal positions taken by a municipality during zoning proceedings do not constitute judicial admissions because ordinance interpretation is a question of law, not fact.
Why It Matters
This decision is a significant setback for solar developers seeking to site utility-scale projects in Pennsylvania’s agricultural and residential zones by classifying them as public utility facilities. The court’s sharp distinction between power generation and power transmission means that solar farms cannot piggyback on ordinance provisions designed to accommodate transmission and distribution infrastructure like substations and power lines. Developers will need to pursue other avenues — such as seeking zoning amendments, conditional use approvals, or special exceptions — rather than relying on existing “public utility” categories.
The opinion also highlights a broader tension in Pennsylvania land use law: municipalities that have not updated their ordinances to address commercial solar energy face both developers seeking creative interpretations and neighbors concerned about industrial-scale projects in rural areas. For practitioners representing solar developers, the decision underscores the need to advocate for express solar-farm provisions at the municipal level rather than litigate around existing definitions that were drafted before utility-scale solar became commercially viable.