trial court is the factfinder when the board has not made findings
How later courts described this case
- trial court is the factfinder when the board has not made findings
Written by the judges who cited it.
The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Brookview Solar I, LLC, :
Appellant :
:
v. : No. 1055 C.D. 2022
: Argued: September 11, 2023
Mount Joy Township Board of :
Supervisors, Tessa Amoss, :
Dwight Amoss, Travis Berwager, :
Michael Boccabello, Alan Bushbey, :
Tina Bushbey, Larry Combs, Barbara :
Combs, Ann DeGeorge, Nicholas :
Demas, Christine Demas, Thomas :
Dunchack, Sr., Thomas Dunchack, II, :
Glenda Gerrick, Larry Hartlaub, :
Curtis Hawkins, Sherry Hawkins, :
Kathleen Hegan, Joseph Hofmann, :
Philip Hunt, Amanda Martin, Justin :
Martin, Todd McCauslin, Angela :
McCauslin, Angelique Merkson, :
Stephen Merkson, Tom Newhart, :
Carol Newhart, Thea Phipps, Jennifer :
Ricketts, Steven Ricketts, Deborah :
Sanders, Scott Sanders, Suzanne :
Schust, Emily Shoey, Barbara Steele, :
Marilyn Truss, Larry Woltz, Peggy :
Woltz, David Yancosky, Richard :
Ogg, Patricia Ogg, Lawrence R. :
McLaren, Mary Ann Hartlaub, :
Clayton S. Wood, Corbin Wood, :
Steven E. Wood, Christine L. Wood, :
David R. Updyke and Kenneth A. :
Hilbert :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION
BY SENIOR JUDGE LEAVITT FILED: November 30, 2023
Brookview Solar I, LLC (Brookview) appeals an order of the Court of
Common Pleas of Adams County (trial court) that denied Brookview’s conditional
use application to construct a solar energy system in Mount Joy Township
(Township), approximately 500 acres in size. On appeal, Brookview argues that the
trial court erred in several ways. First, it erred in applying a de novo, rather than
appellate, standard of review to the split decision of the Township’s Board of
Supervisors (Board). Second, it erred in holding that Brookview’s site plan failed
to address stormwater management, access roads, and open space requirements,
which are matters to be addressed at the development phase of the project. Third, it
erred in ruling Brookview’s glare analysis report was inadmissible evidence. Fourth,
it erred in burdening Brookview with proving that its proposed solar system would
not be detrimental to the public welfare.
Concluding these claims lack merit, we affirm the trial court.
Background
Brookview1 seeks to build a 75-megawatt photovoltaic solar energy
generating facility over a site of 1,000 acres in the Township. The solar energy
system will be sited on 21 privately-owned parcels, which have been either leased
or purchased by Brookview. Approximately 374 acres to be used for the facility are
located in the Township’s Baltimore Pike Corridor, and the solar energy system will
use approximately 160 of the 374 acres. Hearing Transcript (H.T.), 2/12/2020, at
53; Reproduced Record at 116a (R.R. __). The remainder of the land to be used in
the system is located in the agricultural conservation zone, where a solar energy
system is a use permitted by right. By contrast, a solar energy system is permitted
only by conditional use in the Baltimore Pike Corridor.
1
Brookview is a wholly-owned, indirect affiliate of NextEra Energy Resources, LLC (NextEra).
2
On November 12, 2019, Brookview submitted a conditional use
application for a solar energy system in the Baltimore Pike Corridor. The application
described the proposed solar energy system as follows:
1. Up to twelve (12) ft. tall, ground-mounted solar
photovoltaic modules (single axis tracking).
2. Electrical inverters to convert the power from Direct
Current (DC) to Alternating Current (AC).
3. A collection substation and utility-owned switchyard
required to step-up the voltage to accommodate an
interconnection into the electrical grid.
4. Underground collection lines to connect the panels to the
accessory structures.
5. An eight (8) ft. tall security fence surrounding the facility
as required by Section 11 of the National Electrical Safety Code
(NESC).[2]
6. Safety lighting around the substation.
Initial Conditional Use Application at 2; R.R. 3751a. The application stated that the
proposed solar energy system would comply with the required setback and
landscaping provisions of the Mount Joy Township Zoning Ordinance of 2017,
codified in the Code of the Township of Mount Joy, Chapter 110, Zoning (Zoning
Ordinance).
The Township’s Planning Commission recommended denial of
Brookview’s application “due to the large scope of the project.” R.R. 4780a. The
2
“The National Electrical Safety Code is an industry-wide code prepared under the auspices of the
Bureau of Standards. It does not have the force of law but is voluntarily accepted as a minimum
standard by the electrical industry.” Poorbaugh v. Pennsylvania Public Utility Commission, 666
A.2d 744, 745 n.3 (Pa. Cmwlth. 1995).
3
Planning Commission noted that it had not been provided any of the exhibits
attached to Brookview’s application.
Between January 2020 and March 2021, the Board held 21 public
hearings on Brookview’s conditional use application.3 Forty-four individuals
(Objectors) opposed Brookview’s application, and six individuals (Intervenors)4
supported Brookview’s application. Both Objectors and Intervenors were granted
party status by the Board.
Brookview and Objectors presented testimonial5 and documentary
evidence. Additionally, the Board received testimony and exhibits from several self-
represented citizens as well as unsworn written and oral public comments from 68
citizens.
At the conclusion of the hearings, the Board considered two motions on
Brookview’s conditional use application. One motion was offered to approve the
application with conditions, and the other was offered to deny the application. The
3
A conditional use falls within the jurisdiction of the municipal governing body rather than a
zoning hearing board. In re Thompson, 896 A.2d 659, 670 (Pa. Cmwlth. 2006).
4
Intervenors are Clayton S. Wood, Corbin Wood, Steven E. Wood, Christine L. Wood, David R.
Updyke, and Kenneth A. Hilbert.
5
On behalf of Brookview, the following individuals testified: Chanelle Mayer, project manager
for Google Development at NextEra; Paul Callahan, director of the engineering and construction
division at NextEra; Neal Beasley, a senior project manager in the landscape architecture group at
Timmons Group; Edward (Ted) McGavran, a senior project manager at Timmons Group; Dan
Jamison, a senior project engineer in the energy renewable group at Timmons Group; Andrew
Lines, a partner at the accounting firm of CohnReznick; Clayton Wood, owner of property in
Mount Joy Township and dairy sales leader for the East Coast at Cargill Animal Nutrition; Heather
Sexton, an employee at SWCA Environmental Consultants; and Heath Barefoot, project director
at NextEra.
On behalf of Objectors, the following individuals testified: Mark Heckman, Lawrence
Lahr, Herbert Eckerlin, Dwight Amoss, Joseph Hoffman, Nicholas Demas, Travis Berwager,
Emily Shoey, Barbara Steele, Scott Sanders, Deborah Sanders, Todd McCauslin, Angela
McCauslin, Glenda Gerrick, Lawrence Combs, Thomas Newhart, and Dr. Phillip Hunt.
4
vote tied.6 As a result, the application was denied by operation of law.
Subsequently, the Board provided the parties with written notice of the application’s
denial. The notice included, as attachments, unsigned “draft written decisions in
support of each motion.” R.R. 4546a.
Brookview appealed to the trial court.
Trial Court Decision
Before the trial court, the parties stipulated that those factual findings
that appeared in the two draft decisions presented to the Board members could be
considered by the trial court as adopted by the Board. The parties also agreed that
the trial court’s review of the Board’s decision should be limited to abuse of
discretion or error of law, i.e., an appellate standard of review.
The trial court rejected the stipulation, holding that the Board did not
make any findings of fact. The trial court explained that neither of the two draft
decisions had been adopted by the Board; each was unsigned. Further, the Board’s
minutes recorded that the motion to approve the application was accompanied by a
draft decision, but they did not record that the motion to deny the application was
similarly accompanied by a draft decision. Simply, none of the findings in either
draft decision could be factually or legally construed as having been adopted by a
majority of the Board. As a consequence, the trial court concluded that “statutory
law directs that the common pleas court ‘shall make its own findings of fact based
on the record below . . . .’” Trial Court Op., 1/12/2022, at 23; R.R. 4638a (quoting
6
The Board is comprised of five members. However, one supervisor recused himself and did not
attend the hearings. Thus, Brookview’s conditional use application was considered by the four
remaining Board members.
5
Section 1005-A of the Pennsylvania Municipalities Planning Code (MPC),7 53 P.S.
§11005-A). The trial court also reasoned that the parties, by stipulation, could not
determine the trial court’s standard of review, which was a matter committed to the
trial court by statute.
Because the parties informed the court that they did not wish to present
any additional evidence, the trial court conducted a de novo review of the record that
was made before the Board. The trial court reached several conclusions and findings
that are relevant to this appeal:
3. Section 301 of the Zoning Ordinance identifies “solar
energy systems” as a conditional use in the [Baltimore Pike
Corridor].
4. Zoning Ordinance Section 1201 sets forth the criteria
governing the filing and consideration of conditional use
applications.
5. Zoning Ordinance Section 402.11 identifies specific
requirements applicable to the development of a “solar energy
system.”
....
21. Brookview’s application includes as an attachment a glare
analysis prepared by Capitol Airspace Group.
22. Although the glare study indicates “[t]here is no predicted
glare for residences . . . [or] along the routes for cars,” Brookview
did not present the author of the report or any expert testimony
on the subject.
....
30. The amended site plan submitted by Brookview identifies
points of access to the several lots but does not identify the
dimensions or precise location of the interior travel aisles.
Engineered details of the access drives necessary to determine
7
Act of July 31, 1968, P.L. 805, as amended, added by the Act of December 21, 1988, P.L. 1329,
53 P.S. §11005-A. The text of Section 1005-A of the MPC is set forth in the text of the opinion,
infra.
6
compliance with Chapter 86 of the Township Code[8] (relating to
subdivision and land development) have not been provided.
Applicant’s Exhibit 16; June 24, 2020 Tr., pg. 110.
....
39. There is no evidence of record that the Project complies
with the dimensional requirements for the [Baltimore Pike
Corridor] related to open space (20 percent) as required in
[Zoning] Ordinance Section 302(a).
40. The record lacks credible evidence concerning maximum
lot coverage (50 percent) as required by [Zoning] Ordinance
Section 302(a).
41. Brookview has failed to offer credible evidence related to
the internal circulation of access roads.
....
44. Except as otherwise set forth herein, Brookview’s Project
complies with [Zoning] Ordinance requirements related
generally to all uses within the [Baltimore Pike Corridor] and the
Zoning Ordinance generally.
45. Brookview’s application complies with the filing
requirements set forth in Section 1201A(1) of the Zoning
Ordinance except as otherwise set forth hereinabove.
....
48. The purpose of the [Baltimore Pike Corridor] “is to take
advantage of the corridor’s historic function as a major
thoroughfare and to continue the established mixed use and
intensive development pattern along the corridor, subject to
appropriate siting and design controls that foster the continued
efficiency of [the Baltimore Pike] as a major corridor, enhance
the appearance of land use along [the Baltimore Pike], protect
and preserve the historic features along [the Baltimore Pike], and
minimize adverse impacts of non-residential uses on residential
uses.” [Zoning] Ordinance Section 205.
8
The Second Class Township Code, Act of May 1, 1933, P.L. 103, as amended, 53 P.S. §§65101-
68701.
7
49. Brookview has failed to demonstrate by credible evidence
that the proposed use is consistent with the purposes and intent
of the [Zoning] Ordinance’s description of the [Baltimore Pike
Corridor]. The proposed Project will monopolize approximately
10 percent of the acreage in the district for a single use.
50. Brookview has failed to prove 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.
Trial Court Op., 9/2/2022, at 4-11. In short, the trial court found Brookview’s
application for a conditional use satisfactory in some respects and unsatisfactory in
others.
Initially, the trial court addressed Objectors’ challenge to the
admissibility of Brookview’s glare analysis report, which measured the impact of
the proposed solar energy system on pilots, vehicles, and residents. Brookview’s
report was attached to its conditional use application, but it did not present an expert
to testify at the Board hearing about the report’s analysis and conclusions. Objectors
asserted that without Brookview’s proffer of the expert who authored the report, they
could not conduct cross-examination, a right guaranteed by Section 908(5) of the
MPC, 53 P.S. §10908(5).9 Brookview countered that the glare analysis is a
procedural requirement of the application and not a substantive requirement.
Accordingly, it did not need to present a glare analysis expert at the hearing to
explain the report.
The trial court was not persuaded by Brookview’s argument. It began
with the Zoning Ordinance, which provides that a permit application for a solar
energy system shall include:
9
It states: “[t]he parties shall have the right to be represented by counsel and shall be afforded the
opportunity to respond and present evidence and argument and cross-examine adverse witnesses
on all relevant issues.” Section 908(5) of the MPC, 53 P.S. §10908(5).
8
Glare analysis demonstrating, through siting or mitigation
measures, that any glare produced by the solar energy system
will not have an adverse impact.
ZONING ORDINANCE §110-402(II)(2)(b). The trial court concluded that this language
established a substantive requirement, i.e., that the applicant must demonstrate that
by “siting or other mitigation,” its proposed energy system will not generate glare
that will have an adverse impact. Id. The trial court reasoned that the term
“demonstrating” made it clear that the expert’s “conclusion [must] be credibly
supported by evidence.” Trial Court Op., 9/2/2022, at 14.
Brookview’s glare analysis report, attached to its application, was
identified as Brookview Exhibit 1 at the Board hearing of January 15, 2020. At a
subsequent hearing, the only person to testify about the report was Brookview’s
senior manager, who stated that the report “found no impact.” H.T., 2/12/2020, at
81-82; R.R. 144a-45a. Objectors objected to the admission of the glare analysis
report for the stated reason that without any expert testimony, they could not conduct
cross-examination on the report’s methodology. The Board did not rule on the
objection; however, the Board’s solicitor recommended that the objection be
overruled because “the Application [was] submitted to the Township, and all of its
parts were properly identified as an exhibit.” H.T., 8/27/2020, at 149; R.R. 1043a.
In its de novo review, the trial court ruled the glare analysis report
inadmissible. Notwithstanding the report’s identification as an exhibit attached to
the application, the trial court held that this did not constitute an admission of the
report for probative evidentiary value. Without any demonstration of the report’s
authenticity or reliability, it did not satisfy even the most lenient standard of
evidence. Because the height of the solar panels examined in the analysis was not
the height of the panels Brookview intended to install, the report could not support
9
a finding that Brookview met its burden of proving that the glare from the project
would “not have an adverse impact,” even if it were admitted. ZONING ORDINANCE
§110-402(II)(2)(b). For that reason alone, the trial court held Brookview did not
qualify for a conditional use. Trial Court Op., 9/2/2022, at 26-27.
As to burden of proof and persuasion, the trial court acknowledged that
generally an objector bears the burden of proving an adverse impact on public
welfare where a conditional use meets the objective criteria. However, in this case,
Article 12 of the Zoning Ordinance placed the burden of proof on public welfare
considerations upon the applicant. ZONING ORDINANCE §§110-1201-110-1205; R.R.
4316a-21a.
Turning to Brookview’s site plan, the trial court identified several
deficiencies. These related to stormwater management; access drive and interior
travel aisles; and maximum lot coverage.
As to stormwater management, Brookview claimed that it had to
demonstrate only a substantial likelihood that it would meet that requirement in
future proceedings. While generally accurate, the Zoning Ordinance requires the
applicant’s site plan to demonstrate actual compliance with Chapter 81, Stormwater
Management, of the Zoning Ordinance. ZONING ORDINANCE §110-402(II)(2)(a)[3].
Accordingly, the trial court rejected Brookview’s argument that it had to show only
a “substantial likelihood” of compliance with stormwater management.
In the alternative, Brookview argued that even if the Zoning Ordinance
did require a stormwater management plan to be submitted with the application, the
acceptance of the application by the Township’s Zoning Officer excused its
noncompliance. The trial court also rejected that argument, explaining that the
10
Zoning Officer lacked authority to waive provisions of the Zoning Ordinance.
Section 614 of the MPC provides, in relevant part, as follows:
The zoning officer shall administer the zoning ordinance in
accordance with its literal terms, and shall not have the power to
permit any construction or any use or change of use which does
not conform to the zoning ordinance.
53 P.S. §10614.
As to the project’s access drives and interior travel aisles, Brookview’s
engineer testified that the access roads on the site plan were tentative because “[t]he
access roads are a function of the layouts. The layout cannot really be determined
until the actual panel is selected.” H.T., 8/27/2020, at 26; R.R. 919a. The trial court
concluded that a “tentative” plan did not comply with the Zoning Ordinance. See
ZONING ORDINANCE §110-402(II)(6); R.R. 4241a.10
As to the open space requirement for a conditional use, the trial court
found the record devoid of evidence on the open space on the parcels to be developed
with Brookview’s solar energy system. The Zoning Ordinance sets standards for the
10
It states:
An access drive meeting the requirements of Chapter 86 (Subdivision and Land
Development) of the Code of the Township of Mount Joy shall be provided. The
interior of the solar energy system shall be improved with interior travel aisles
sufficient in location, dimension and construction to allow access by maintenance
vehicles and emergency management vehicles.
ZONING ORDINANCE §110-402(II)(6); R.R. 4241a.
11
minimum open space11 percentage (20%) and maximum lot coverage12 percentage
(50%) for parcels in the Baltimore Pike Corridor. ZONING ORDINANCE §110-302(a);
R.R. 4001a. Brookview offered testimony on the maximum lot coverage, but the
trial court did not credit this testimony because it was based upon a hypothetical
solar panel size and not the actual size, which was still unknown. Even Brookview’s
senior project engineer acknowledged the likelihood that the lot coverage ratio of
the project would change in the future.
Finally, as to the public welfare standards, the trial court noted that
Brookview’s solar energy system would use approximately 10% of the land in the
Baltimore Pike Corridor. This conflicted with the intent of the Zoning Ordinance to
continue the mixed use established in that district. ZONING ORDINANCE §110-205;13
11
Open space is defined as:
Any area of land or water, or a combination of land and water, within a development
site that is free of improvement. Open spaces may include required setbacks, utility
easements where the utility facilities are located underground, and streets, access
drives, driveways and stormwater management facilities where there is a necessity
to locate these features in the open space and where such features cross the open
space in a perpendicular manner.
ZONING ORDINANCE §110-111(B); R.R. 4183a.
12
Lot coverage is defined as:
A percentage of the lot area covered with structures, including any portion of a
structure elevated above grade, except above-ground swimming pools and
playground equipment, and impervious area as defined in this chapter.
ZONING ORDINANCE §110-111(B); R.R. 4178a.
13
It provides, in relevant part:
The purpose of the [Baltimore Pike Corridor District] is to take advantage of the
corridor’s historic function as a major thoroughfare and to continue the established
mixed use and intensive development pattern along the corridor, subject to
appropriate siting and design controls that foster the continued efficiency of State
Road 97 as a major corridor, enhance the appearance of land use along State Road
97, protect and preserve the historic features along State Road 97, and minimize
adverse impacts of non-residential uses on residential uses.
ZONING ORDINANCE §110-205; R.R. 3998a.
12
R.R. 3998a. Because Brookview could not identify any specifics on the solar panels
to be used, it was impossible for the trial court to determine whether they would
place the health and safety of neighboring residents at risk.
For all these reasons, the trial court affirmed the Board’s denial of
Brookview’s application for conditional use.
Brookview appealed the trial court’s decision.
Appeal
On appeal,14 Brookview raises four issues.15 First, it argues that the
trial court erred in reviewing the Board’s decision de novo. Second, it argues that
the trial court erred in holding that Brookview did not satisfy the specific and
objective requirements set forth in the Zoning Ordinance for a conditional use.
Third, it argues that the trial court erred in ruling that Brookview’s glare analysis
report was inadmissible. Fourth, it argues that the trial court erred in holding that
Brookview had the burden of proof and persuasion with regard to the impact of its
proposed solar energy system on the public welfare and that it did not meet this
burden. We address these issues seriatim.
14
In a case where the trial court takes no additional evidence, but makes its own findings based on
the record before the board, we review the trial court’s decision. Koutrakos v. Zoning Hearing
Board of Newtown Township, Delaware County, 685 A.2d 639, 642 (Pa. Cmwlth. 1996). See also
Gryshuk v. Kolb, 685 A.2d 629, 633 (Pa. Cmwlth. 1996) (trial court is the factfinder when the
board has not made findings). Our standard of review is whether the trial court committed an
abuse of discretion or an error of law. Faulkner v. Board of Adjustment of Moosic Borough, 624
A.2d 677, 679 (Pa. Cmwlth. 1993). We may conclude that the trial court abused its discretion only
if its findings were not supported by substantial evidence, which is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion. Valley View Civic Association
v. Zoning Board of Adjustment, 462 A.2d 637, 640 (Pa. 1983).
15
For purposes of this opinion, we have rearranged Brookview’s issues on appeal.
13
Applicable Principles
The law on conditional uses is well established. A conditional use is
defined as “[a] use permitted in a particular zoning district pursuant to the provisions
in Article VI” of the MPC. See Section 107(a) of the MPC, 53 P.S. §10107(a). A
governing body has authority to grant a conditional use “pursuant to express
standards and criteria set forth in the zoning ordinance.” Section 603(c)(2) of the
MPC, 53 P.S. §10603(c)(2). A conditional use involves the use of the land, as
opposed to the particular design details of the development. Joseph v. North
Whitehall Township Board of Supervisors, 16 A.3d 1209, 1215 (Pa. Cmwlth. 2011).
An applicant is entitled to a conditional use as a matter of right, unless it is
determined “that the use does not satisfy the specific, objective criteria in the zoning
ordinance for that conditional use.” In re Drumore Crossings, L.P., 984 A.2d 589,
595 (Pa. Cmwlth. 2009).
The applicant bears the burden of establishing that the proposed
conditional use satisfies the specific criteria in the zoning ordinance. Id. The board
is the factfinder, with the responsibility for credibility determinations and the weight
to be assigned the evidence. Joseph, 16 A.3d at 1218. If the board is persuaded that
the application complies with the zoning ordinance, a presumption arises that “the
proposed use is consistent with the general welfare of the community.” H.E. Rohrer,
Inc. v. Zoning Hearing Board of Jackson Township, 808 A.2d 1014, 1018 (Pa.
Cmwlth. 2002). A conditional use evidences a legislative determination that the use
will not have an adverse impact on the public interest in normal circumstances. In
re Cutler Group, Inc., 880 A.2d 39, 42 (Pa. Cmwlth. 2005).
The burden then “shifts to [the] objectors to rebut the presumption by
proving that there is a high degree of probability the proposed use will adversely
14
affect the welfare of the community in a way not normally expected from the type
of use.” H.E. Rohrer, Inc., 808 A.2d at 1018. “Mere speculation” of possible harm
is not sufficient, and the objectors’ burden may not be satisfied with personal opinion
or bald assertions. Id. Pointedly, a “conditional use application must be granted
unless the objectors present sufficient evidence that the proposed use has a
detrimental effect on the public health, safety and welfare.” In re McGlynn, 974
A.2d 525, 537 (Pa. Cmwlth. 2009) (emphasis added).
With these principles in mind, we turn to Brookview’s issues on appeal.
Analysis
I. Trial Court’s Standard of Review
Brookview argues that the trial court erred in reviewing the record de
novo.16 It contends the trial court should have applied an appellate standard of
review to the Board’s denial of its conditional use application because the Board
considered two draft decisions, each containing many of the same findings of fact
and conclusions of law.17 It contends that the findings of fact common to each draft
decision constitute actual findings of the Board.
16
In its brief, Brookview focused much of its argument on challenging the trial court’s de novo
review. At argument, however, Brookview focused on its reliance on the Zoning Officer’s
assurance that certain items in its conditional use application could be addressed later on during
the zoning permitting process.
17
Brookview argues that the findings in the two draft opinions differed at paragraphs 24, 26, 49,
69, 71-75, and 78. R.R. 4611a-12a. Brookview contends that the entirety of the Board voted in
favor of paragraphs 1-23, 25, 27-48, 50-68, 70, and 76-77. Likewise, Brookview argues that the
Board voted in favor of the majority of the conclusions of law, with minor exceptions, in
paragraphs 3 and 6. Thus, the entire Board voted in favor of paragraphs 1, 2, 4-5, and 7-9.
However, the record does not confirm that a draft decision in support of the motion to deny
the application was even presented to the entire Board, let alone voted on.
15
The MPC requires a written determination within 45 days of the last
hearing. Section 908(9) of the MPC, 53 P.S. §10908(9). It further provides as
follows:
Where the application is contested or denied, each decision shall
be accompanied by findings of fact and conclusions based
thereon together with the reasons therefor.
Id. Where the record does not include findings and conclusions, the MPC requires
the trial court to make them. Section 1005-A of the MPC states, in pertinent part, as
follows:
If the record below includes findings of fact made by the
governing body, board or agency whose decision or action is
brought up for review and the court does not take additional
evidence or appoint a referee to take additional evidence, the
findings of the governing body, board or agency shall not be
disturbed by the court if supported by substantial evidence. If the
record does not include findings of fact or if additional evidence
is taken by the court or by a referee, the court shall make its own
findings of fact based on the record below as supplemented by
the additional evidence, if any.
53 P.S. §11005-A (emphasis added).
At the June 3, 2021, meeting, the Board recorded the following votes:
Mr. [Jeff] Patterson moved, seconded by Mr. [John] Gormont,
that, based on the findings of fact and conclusions of law, the
[Board] [] approve the application for a conditional use for a
solar energy use as described in the Application and at public
hearing, subject to the following conditions[.]
....
Chairman Gormont and Supervisor Patterson voted yes,
Supervisors [Bernie] Mazer and [Terry] Scholle voted no. Mr.
Mazer moved, seconded by Mr. Scholle[,] to deny the
application. Supervisors Mazer and Scholle voted yes, Chairman
Gormont and Supervisor Patterson voted no.
16
Board Meeting Minutes, 6/3/2021, at 3; https://mtjoytwp.us/wp-
content/uploads/12.-June-3-2021-Workshop-Meeting-Minutes.pdf (last visited
November 30, 2023). As a result of the Board’s tie vote, Brookview’s application
was denied by operation of law.
On June 7, 2021, the Board solicitor provided the parties a written
notice of the application’s denial, attaching two unsigned versions of a document
titled, “Decision of the Mount Joy Board of Supervisors.” The notice stated that one
draft was prepared in support of the motion to approve the application, and the other
was prepared in support of the motion to deny the application. They were provided
“for information.” R.R. 4546a.
Although the drafts share some common factual findings, none was
formally adopted by a majority of the Board. Section 906(a) of the MPC states that
“[f]or the conduct of any hearing and the taking of any action, a quorum shall be not
less than a majority of all the members of the board[.]” 53 P.S. §10906(a). Here,
there was an equally divided vote and two unsigned “drafts” of factual findings.
Further, the above-quoted minutes from the meeting do not record that the motion
to deny the application was accompanied by a draft decision, as was the motion to
approve. In any case, each motion received two votes. Simply, there was no
majority on a single factual finding.
In Pham v. Upper Merion Township Zoning Hearing Board, 113 A.3d
879 (Pa. Cmwlth. 2015), this Court considered whether a zoning board’s split
decision should be given an appellate, or de novo, review by the trial court. At issue
was an application for a variance to use property as a bed and breakfast in a single-
family zoning district. Following a hearing, the zoning board voted two in favor and
two in opposition, which constituted a denial of the variance. Nevertheless, the
17
zoning board issued a unanimous 32-paragraph decision, with 25 findings of fact
and 7 conclusions of law. The trial court affirmed the zoning board’s decision, and
the landowners appealed to this Court. They asserted that the trial court erred in not
applying a de novo standard of review to the zoning board decision.
This Court held that because the board can act only by a majority of its
members, a tie vote requires that “the subject[]matter with which it is dealing must
remain in status quo.” Id. at 888. Nevertheless, because the zoning board had issued
a written decision that was signed by all four members, we held that the zoning
board’s decision was adequate for purposes of an appellate review. The concurrence
of then-Judge Brobson, now Justice Brobson, did not agree that the written decision
was suitable for appellate review because the so-called findings of fact were, in
actuality, mere summaries of the evidence. Pham, 113 A.3d at 894. As such,
findings of fact under Section 1005-A of the MPC were required. Notwithstanding
the trial court’s claim to have applied an appellate standard of review, in actuality, it
did a de novo review. For that reason, the concurrence joined in the panel’s order to
affirm.
Brookview likens the instant matter to Pham, arguing that the Board
issued a decision that contained findings of fact and conclusions of law, upon which
all the board members agreed. Brookview Brief at 18. We disagree. In Pham, all
four board members formally adopted the findings of fact, such as they were. By
contrast, here, neither of the two draft decisions was signed; neither represents a
majority of the Board.
In the absence of findings from the Board, the trial court concluded that
it had to make its own findings under Section 1005-A of the MPC, 53 P.S. §11005-
A. We agree. It was appropriate, and necessary, for the trial court to do so. See
18
also Faulkner, 624 A.2d 677 (common pleas court is the factfinder when reviewing
a zoning board’s deemed approval, which normally implies an absence of board
findings). We reject Brookview’s contrary argument.
Likewise, we are not persuaded by Brookview’s argument that the
parties’ stipulation should have determined the trial court’s standard of review.
Standard of review refers to the manner in which (or “how”) that examination is
conducted. Morrison v. Department of Public Welfare, Office of Mental Health
(Woodville State Hospital), 646 A.2d 565, 570 (Pa. 1994). Parties may limit the
issues available for the court’s consideration, but “the parties cannot stipulate to
matters affecting the jurisdiction, business, or convenience of the courts.”
Northbrook Life Insurance Company v. Commonwealth, 949 A.2d 333, 337 (Pa.
2008) (citations omitted). It goes without saying that parties cannot instruct the trial
court to overlook or disregard the terms of the MPC.
Given the tie vote and the lack of a majority vote on any findings of
fact, the trial court correctly determined that its standard of review was de novo.
II. Site Plan Deficiencies
A. Completeness of Application
Brookview asserts that the trial court erred in affirming the Board’s
denial of a conditional use for the stated reason that its site plan was deficient.
Brookview contends that it was not required to submit detailed engineering plans on
stormwater management, lot coverage, open space, and access roads with its
application. These items, Brookview argues, will be addressed at a later phase in
the permit process. Indeed, the Township informed Brookview that, at this stage, it
need only show that “the proposed use demonstrates a substantial likelihood of
19
compliance with the requirements” of the Zoning Ordinance. Brookview Brief at 27
(citing ZONING ORDINANCE §110-1201(B)(6); R.R. 4317a).
Conditional use applications involve the proposed use of the land and
not the particular design of the proposed development. See Schatz v. New Britain
Township Zoning Hearing Board of Adjustment, 596 A.2d 294, 298 (Pa. Cmwlth.
1991). The level of evidence needed to obtain conditional use approval will be
determined on a case-by-case basis, and it will vary depending on the language of
the applicable ordinance. In re Thompson, 896 A.2d at 670.
In Schatz, this Court held that a zoning hearing board could not reject
an application for a special exception18 for the stated reason that it did not address
sewage capacity, stormwater management, or water supply requirements. We
explained that “such issues are to be addressed further along in the permitting and
approval process.” Schatz, 596 A.2d at 298. In In re Brickstone Realty Corporation,
789 A.2d 333, 339 (Pa. Cmwlth. 2001), we held that detailed design information,
such as a floor plan, was not relevant to a special exception application under the
relevant zoning ordinance. On the other hand, in East Manchester Township Zoning
Hearing Board v. Dallmeyer, 609 A.2d 604 (Pa. Cmwlth. 1992), we held that water
supply and sewage plans had to be addressed in a special exception application
because the applicable zoning ordinance required that submission. Stated otherwise,
the parameters of a conditional use application are determined by the terms of the
particular zoning ordinance.
18
The law on conditional uses and special exceptions is virtually identical. In re Thompson, 896
A.2d at 670. A conditional use proceeding follows the procedures applied in a special exception
proceeding. Sluciak v. Cecil Township Board of Supervisors, 223 A.3d 725, 730 (Pa. Cmwlth.
2019).
20
Brookview argues that the Zoning Officer advised Brookview that its
application was complete and that the specific conditional use provisions in the
Zoning Ordinance had either been satisfied or did not need to be addressed at this
stage of the permitting process. Relying on Nextel Partners, Inc. v. Clarks Summit
Borough/Clarks Summit Borough Council, 958 A.2d 587 (Pa. Cmwlth. 2008),
Brookview argues that the Board and the trial court were bound by the Zoning
Officer’s determination that its site plan was complete.
In Nextel, the zoning ordinance required the zoning officer to “refuse
to accept an incomplete application which does not provide sufficient information
to determine compliance with this [o]rdinance.” Nextel, 958 A.2d at 592.
Nevertheless, the borough council accepted the application along with the $600
application fee. We interpreted this action as acceptance of a completed form
because the borough council “had an obligation under its [o]rdinance to refuse to
accept” an incomplete application. Id. at 593-94. Once the application was
accepted, the clock began running on the deadline for holding a hearing on the
application.
Brookview’s reliance on Nextel is misplaced. Nextel concerned the
calculation of the 60-day deadline for scheduling a hearing on a conditional use
application under Section 908(1.2) of the MPC, 53 P.S. §10908(1.2).19 This case
does not concern the timeliness of the Board’s hearing on Brookview’s application.
Even so, the ordinance in Nextel was unlike the Zoning Ordinance here, which
allows, but does not mandate, the Zoning Officer to reject an incomplete application.
19
Under Section 913.2(b)(2) of the MPC, which was added to the MPC by the Act of December
21, 1988, P.L. 1329, where the governing body fails to “commence, conduct or complete the
required hearing as provided in section 908(1.2), the decision shall be deemed to have been
rendered in favor of the applicant . . . .” 53 P.S. §10913.2(b)(2).
21
It states, in relevant part, that a “failure to comply with the requirements of this
section may lead to the rejection of the application” by the Zoning Officer. ZONING
ORDINANCE §110-1203(A); R.R. 4320a (emphasis added). In any case, Nextel, 958
A.2d at 593, also established that acceptance of a conditional use application does
not constitute a determination that it complies with the technical requirements of the
ordinance.
Under the Zoning Ordinance, only the Board can act upon an
application for conditional use. ZONING ORDINANCE §110-1201(B) (“The Board of
Supervisors shall hear and act upon an application for conditional use as specifically
authorized by this chapter.”). It is for the Board to determine whether the applicant
has, by credible evidence, satisfied the substantive criteria in the Zoning Ordinance
for a conditional use. That the Zoning Officer did not identify any site plan
deficiencies, R.R. 4422a-23a, 4337a-46a, is irrelevant. That did not bind the Board,
or the trial court, in review of the “technical requirements” applicable to the
proposed conditional use. Nextel, 958 A.2d at 594.
Brookview next argues that Nextel established that a municipality has
a duty of good faith “in reviewing and processing development plans.” Brookview
Brief at 42 (quoting Nextel, 958 A.2d at 593). Brookview relied on the Township’s
assurance that its application complied with the Zoning Ordinance. Indeed, before
the trial court, the Township took the position that there were no deficiencies in
Brookview’s site plan. Brookview contends that the Township’s change of position
requires this Court to remand the application to the Board of Supervisors.
Before the trial court, the Township cited the two unsigned draft
decisions as the basis for its position that the site plan was complete. However, as
explained supra, because neither draft decision was formally adopted by a majority
22
of the Board, the Township’s position (at that time) lacked any foundation in the
evidentiary record.
It is true that a “municipality has a duty to process and review a land
use application in good faith.” Grace Building Company, Inc. v. Richland Township
Board of Supervisors (Pa. Cmwlth., No. 1111 C.D. 2009, filed April 15, 2010)
(unreported), slip op. at 3.20 This includes “providing an applicant a reasonable
opportunity to respond to objections or to modify plans where there has been a
misunderstanding or difference of opinion.” Raum v. Board of Supervisors of
Tredyffrin Township, 370 A.2d 777, 798 (Pa. Cmwlth. 1976). When a municipality
“receives an incomplete application that precludes meaningful review, it should act
clearly and without delay.” Nextel, 958 A.2d at 593. Further, after “application
acceptance, technical requirements and interpretations may be addressed
collaboratively as ordinance compliance is assessed.” Id. at 594.
Given the vote of the Board, we do not accept Brookview’s premise
that there was a misunderstanding or difference of opinion between the Township
and Brookview about the site plan. In any case, Objectors asserted, before the Board,
that the site plan was deficient as to a glare analysis, stormwater management plan,
and access roads. That position continued in the appeal. Once the trial court
determined that it would conduct a de novo review of the record in this matter, all
the parties had the opportunity to introduce additional evidence. Trial Court Op.,
1/12/2022, at 23; R.R. 4638a. Brookview should have used that opportunity to
present evidence relevant to its site plan.21
20
An unreported panel decision of this Court, “issued after January 15, 2008,” may be cited “for
its persuasive value[.]” Section 414(a) of the Commonwealth Court’s Internal Operating
Procedures, 210 Pa. Code §69.414(a).
21
In its brief filed in the trial court, Brookview stated that the original site plan submitted with the
application was revised during the hearings to address comments from the Township and Planning
23
We reject Brookview’s request that this Court remand the matter to the
Board so that Brookview can amend its original conditional use application with a
new site plan. It had that opportunity before the trial court and chose not to use it.
B. Stormwater Management Plan
Conditional uses must adhere to requirements specified in the Zoning
Ordinance, which states, in relevant part, as follows:
The applicant for a conditional use shall demonstrate, by credible
evidence, compliance with these criteria and those criteria
specified elsewhere in this chapter for the use in question:
(6) The proposed use demonstrates a substantial
likelihood of compliance with the requirements of
this chapter.
ZONING ORDINANCE §110-1201(B)(6); R.R. 4317a (emphasis added).
Notwithstanding this general requirement, the Zoning Ordinance established a
specific standard for stormwater management of a proposed solar energy system. It
states as follows:
(2) Application for a zoning permit for the solar energy system
shall include:
(a) A site plan:
....
[3] Demonstrating compliance with Chapter 81,
Stormwater Management, of the Code of the
Township of Mount Joy.
ZONING ORDINANCE §110-402(II)(2)(a)[3]; R.R. 4240a (emphasis added).
Commission. Brookview Trial Court Brief at 21; Original Record (O.R.), Item No. 92 at 21.
Notably, Brookview did not request the trial court to order a remand so it could further revise its
site plan. To the contrary, Brookview advised the trial court “there is no need for any remand to
the Board.” Brookview Trial Court Brief at 65; O.R., Item No. 92 at 65.
24
The trial court held that Brookview did not meet its burden of
“demonstrating” compliance with Section 402(II)(2)(a)[3] of the Zoning Ordinance.
Brookview argues that under Section 1201(B)(6), it was required to demonstrate
merely “a substantial likelihood” that it will satisfy this requirement. ZONING
ORDINANCE §110-1201(B)(6); R.R. 4317a. Future proceedings before the Township
and state agencies will oversee permits needed for the project. The trial court
rejected this argument because Brookview’s application did not even address
stormwater management, let alone demonstrate a substantial likelihood of
compliance with stormwater management requirements.22 Trial Court Op.,
9/2/2022, at 6, Finding of Fact (F.F.) No. 20.
Brookview argues the Zoning Officer’s acceptance of the application
excused Brookview’s failure to include a stormwater management with its site plan.
The Zoning Ordinance provides:
No application shall be deemed filed unless and until the
applicable fee is paid, the related form is properly completed, all
informational requirements set forth in this chapter have been
satisfied, and all necessary signatures are applied. Any failure to
comply with the requirements of this section may lead to the
rejection of the application or appeal because it is [sic]
administratively incomplete by the Zoning Officer.
22
At the hearing, Brookview’s witness, Dan Jamison, an engineer overseeing development of
renewable energy sites, testified:
Q. So, turning back to the Zoning Officer’s letter dated January 14 which is
Exhibit 12, Item 4 mentions a requirement demonstrating compliance with
stormwater management.
What has that compliance shown or done?
A. That compliance will be completed before building permits can be issued.
H.T., 6/24/2020, at 81; R.R. 633a.
25
ZONING ORDINANCE §110-1203(A); R.R. 4320a. Simply, the Zoning Officer’s
acceptance of an application does not determine the technical merits of the site plan.
Nextel, 958 A.2d at 594.
Brookview also asserts that it could not address all the stormwater
management requirements because its solar energy system is at the preliminary
planning stage. Brookview’s engineer, however, testified during cross-examination
that “it is possible to do a preliminary storm[]water plan that would demonstrate the
location of facilities on the property[.]” H.T., 8/27/2020, at 43-44; R.R. 936a-37a.
He explained, however, that it was “too speculative to be able to provide detail as to
stormwater” at this stage. H.T., 8/27/2020, at 36; R.R. 929a.
By not addressing stormwater management, Brookview’s application
did not satisfy a specific conditional use requirement in Section 402(II)(2)(a)[3] of
the Zoning Ordinance. Accordingly, the trial court did not err in determining that
Brookview’s application was properly denied.
C. Dimensional Requirements
Brookview argues that the trial court erred in holding that it did not
satisfy the open space and maximum lot coverage requirements of the Zoning
Ordinance. It contends that it provided “testimony and evidence to establish its
compliance,” and it relied on the Zoning Officer’s acceptance of its application.
Brookview Brief at 48.
The Zoning Ordinance requires a site plan to “[d]emonstrat[e]
compliance with requirements of this section and all other applicable requirements
of this chapter, including, but not limited to, the requirements of the zoning district
in which located, parking, landscaping and signage[.]” ZONING ORDINANCE §110-
402(II)(2)(a)[2]; R.R. 4240a (emphasis added). The ordinance sets forth the
26
minimum open space percentage and maximum lot coverage percentage for parcels
in the Baltimore Pike Corridor at 20% and 50% respectively. ZONING CODE §110-
302(A); R.R. 4193a.
The trial court found the record devoid of any discussion on the open
space on the parcels to be developed with Brookview’s solar energy system.
Although Brookview presented evidence on maximum lot coverage, the trial court
did not credit this evidence because it was based upon a hypothetical solar panel
size; Brookview has not yet chosen the actual solar panel size. Brookview conceded
the fact that the size of the solar panel will change the lot-coverage ratio but claimed
that compliance with the Zoning Ordinance will be determined “at the time of final
site plan[.]” H.T., 8/27/2020, at 64; R.R. 957a.
The Zoning Ordinance placed the burden on Brookview to prove at the
hearing its substantial compliance with the open space requirements for a solar
energy system in order to be granted a conditional use. It did not meet this burden,
and we discern no error by the trial court.
D. Access Road and Interior Travel Aisles
Brookview argues that it complied with the Zoning Ordinance
requirements to identify an access drive and interior travel aisles because its site plan
included general information on access roads. The Zoning Ordinance provides as
follows:
An access drive meeting the requirements of Chapter 86
(Subdivision and Land Development) of the Code of the
Township of Mount Joy shall be provided. The interior of the
solar energy system shall be improved with interior travel aisles
sufficient in location, dimension and construction to allow access
by maintenance vehicles and emergency management vehicles.
27
ZONING ORDINANCE §110-402(II)(6); R.R. 4241a. However, the trial court found
that Brookview’s site plan did not identify the precise location of access roads and
did not “offer credible evidence related to the internal circulation of access roads.”
Trial Court Op., 9/2/2022, at 9, F.F. No. 41. Accordingly, Brookview did not satisfy
this specific criterion in the Zoning Ordinance.
Brookview claims, again, that it relied on the Zoning Officer whose
assurance delayed production of this information. As explained, the Zoning Officer
lacked authority to waive any provision of the Zoning Ordinance, which expressly
requires that information on access roads and interior travel aisles be provided in the
conditional use application. ZONING ORDINANCE §110-402(II)(6); R.R. 4241a.
Brookview did not meet this requirement.
Brookview acted at its peril by ignoring the express requirement in the
Zoning Ordinance that an applicant for a conditional use identify the access drive
and interior travel aisles. We discern no error by the trial court.
III. Admissibility of Glare Analysis Report
Brookview next argues that the trial court erred in ruling the glare
analysis report attached to its conditional use application was inadmissible as
evidence. Brookview argues that its glare analysis report fully satisfied the Zoning
Ordinance, obviating the need to present a witness at the hearing. Brookview Brief
at 50.
With respect to glare, Section 402(II)(2)(b) of the Zoning Ordinance
states, in pertinent part, as follows:
(2) Application for a zoning permit for the solar energy
system shall include:
....
28
(b) Glare analysis demonstrating, through siting or
mitigation measures, that any glare produced by the solar
energy system will not have an adverse impact.
ZONING ORDINANCE §110-402(II)(2)(b); R.R. 4240a (emphasis added). This
provision requires an applicant to (1) include a glare analysis with its application for
conditional use and (2) demonstrate that “any glare produced by the solar energy
system will not have an adverse impact.” Id. Whether the applicant makes that
demonstration is a matter for the Board to determine.
Brookview believes that so long as the conditional use application
includes a glare analysis stating, “any glare produced by the solar energy system will
not have an adverse impact,” the applicant has fully satisfied Section 402(II)(2)(b)
of the Zoning Ordinance. However, the terms of a zoning ordinance must be applied
as written, and inconvenient words cannot be omitted. Greth Development Group,
Inc. v. Zoning Hearing Board of Lower Heidelberg Township, 918 A.2d 181, 187
(Pa. Cmwlth. 2007). We agree with the trial court that the Zoning Ordinance
imposed a substantive burden on Brookview to prove that its siting or mitigation
measures will prevent “an adverse impact.”
Objectors challenged the admissibility of the glare analysis report at the
Board hearing because they were not allowed the opportunity to cross-examine the
author on the analysis or the methodology used to reach the conclusions of the report.
In land use hearings, “[t]he parties . . . shall be afforded the opportunity to respond
and present evidence and argument and cross-examine adverse witnesses on all
relevant issues.” Section 908(5) of the MPC, 53 P.S. §10908(5).
Evidence at land use hearings is addressed in the MPC, which provides
that the “[f]ormal rules of evidence shall not apply, but irrelevant, immaterial, or
unduly repetitious evidence may be excluded.” Section 908(6) of the MPC, 53 P.S.
29
§10908(6). Hearsay can be admissible in such a hearing, Town & Country
Management Corporation v. Zoning Hearing Board of Borough of Emmaus, 671
A.2d 790, 792 (Pa. Cmwlth. 1996), but the hearsay evidence “must be sufficiently
corroborated by other evidence in order to be considered competent evidence.” Lake
Adventure Community Association, Inc. v. Dingman Township Zoning Hearing
Board, 79 A.3d 708, 714 n.4 (Pa. Cmwlth. 2013). In the seminal case Walker v.
Unemployment Compensation Board of Review, 367 A.2d 366, 370 (Pa. Cmwlth.
1976), this Court held that hearsay evidence admitted without objection can be given
its natural probative effect and may support a finding of fact if corroborated by
competent evidence in the record.
Brookview did not authenticate the glare analysis report. There was no
testimony on the substance of the analysis or the methodology used to reach the
report’s conclusions. There was no effort by Brookview to show how, or if, other
evidence in the record corroborated the conclusion in the glare analysis report that
there would be no adverse impact. Finally, Brookview’s decision not to present
expert testimony denied Objectors the opportunity to conduct meaningful cross-
examination, as required by the MPC. See Section 908(5) of the MPC, 53 P.S.
§10908(5).
We discern no error in the trial court’s ruling that Brookview’s glare
analysis report was inadmissible.
IV. Burden of Proof and Persuasion on Impact to Public
Finally, Brookview argues that the trial court erred by placing the
burden of persuasion on Brookview, instead of Objectors, on the issue of whether
its proposed solar energy system will have an adverse impact on the general welfare
of the community. Brookview contends that “[O]bjectors have the initial evidence
30
presentation duty with respect to the general matter of detriment to health, safety and
general welfare, even if the ordinance has expressly placed the persuasion burden
upon the applicant, where it remains if detriment is identified.” Brookview Brief at
53 (quoting Bray v. Zoning Board of Adjustment, 410 A.2d 909, 912 (Pa. Cmwlth.
1980)). Brookview argues that Objectors had to show a high degree of probability
that the proposed solar facility will adversely affect the health and safety of the
community, and they did not make this case.
In Butler v. Derr Flooring Company, 285 A.2d 538 (Pa. Cmwlth. 1971),
we concluded that the zoning ordinance may place the burden of proof onto the
applicant, explaining as follows:
Once an applicant has met the burden of proving his compliance
with all of the specific conditions and requirements of the zoning
ordinance, he has met his initial burden of proof. If the
protestants to the issuance of a special exception raise specific
issues concerning health, safety and general welfare, then the
burden would continue to be with the applicant. The applicant
would be required to come forward to meet the objections so as
to show that the intended use would not violate the health, safety
and general welfare of the community with relation to such
objections. It would then be the duty of the [b]oard in the
exercise of its discretionary power to determine whether or not
the applicant had met his burden of proof.
Id. at 542 (emphasis added). This was consistent with the township’s zoning
ordinance, which stated that “the burden shall be upon the applicant to prove that
approval for the application will not be detrimental to the health, safety, and general
welfare of the community.” Id.
In Bray, 410 A.2d at 913, this Court reaffirmed the presentation and
persuasion obligations of each party in the context of an application for special
31
exception. Regarding the general criterion of detrimental effect upon the health,
safety, and welfare of the neighborhood, we held that
[the o]bjectors have both the duty and the burden; the ordinance
terms can place the burden on the applicant but cannot shift the
duty.
Id.
In sum, where the zoning ordinance places the burden of proof on the
applicant to demonstrate that the requested conditional use will not detrimentally
affect the health, safety, and general welfare of the community, then “the applicant
has the initial burden to produce evidence, and also to prove, that its proposed use
meets all of the specifications and requirements provided by the [] zoning code for
the grant of a conditional use.” EQT Production Company v. Borough of Jefferson
Hills, 208 A.3d 1010, 1023 n.10 (Pa. 2019). “At that point, the objectors have a
burden to produce evidence showing that the proposed development would have a
detrimental effect on the health, safety, and welfare of the community.” Id. “If the
objectors produce such evidence, the applicant must then prove ‘that the intended
use would not violate the health, safety, and general welfare of the community with
relation to such objections.’” Id. (quoting Butler, 285 A.2d at 542; Bray, 410 A.2d
at 912).
Here, the Zoning Ordinance provides as follows:
For uses permitted by conditional use, [Article 4 of the Zoning
Ordinance] sets forth specific requirements and standards which
must be satisfied. The applicant shall have the burden of proof
that the proposed use meets all applicable requirements and
standards contained within this Ordinance including those
specific to the use, applicable to conditional uses generally,
applicable generally to all uses within the relevant zoning
district, and applicable generally to all uses.
32
ZONING ORDINANCE §110-401(C); R.R. 4002a-03a (emphasis added). As to the
general criteria, the Zoning Ordinance states, in pertinent part, as follows:
The applicant for a conditional use shall demonstrate, by credible
evidence, compliance with these criteria and those criteria
specified elsewhere in [Chapter 110] for the use in question:
....
(3) The proposed use will not substantially change
the character of the subject lot’s neighborhood nor
adversely affect the character of the general
neighborhood, the conservation of property values,
the health and safety of residents or workers on
adjacent lots and in the neighborhood, nor the
reasonable use of neighboring lots. The use of
adjacent lots shall be adequately safeguarded.
ZONING ORDINANCE §110-1201(B)(3); R.R. 4317a (emphasis added). In sum, the
Zoning Ordinance places the burden on the applicant to demonstrate that the
proposed use will not substantially change the character of the lots used by a solar
energy system or adversely affect the character of the neighborhood or the
reasonable use of neighboring lots.
At the hearing before the Board, Objectors came forward with evidence
on the detriment to the health, safety, and welfare of the community. Their witnesses
testified about existing water runoff onto their properties and contamination of water
supply. They also testified about the inadequate buffering of the solar panels, the
visibility of which would adversely impact the enjoyment of their property. Their
evidence addressed adverse impacts upon ecosystems and wildlife caused by the
solar panels. They presented expert evidence on how Brookview’s solar energy
system would affect property values.
33
Brookview and Intervenors complain that Objectors’ proffered
evidence was not sufficiently discussed by the trial court. They also argue that
Objectors’ evidence did not meet the “high probability standard” of Bray, 410 A.2d
909.
The trial court found this inquiry unnecessary. Given the site plan
deficiencies, including the absence of a credible glare analysis, the trial court held it
was impossible to find that “the health and safety of residents or workers on adjacent
lots and in the neighborhood” would be adequately safeguarded. ZONING
ORDINANCE §110-1201(B)(3). We discern no error in the trial court’s holding.
Conclusion
For the reasons set forth herein, we affirm the decision of the trial court.
_________________________________________________________
MARY HANNAH LEAVITT, President Judge Emerita
34
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Brookview Solar I, LLC, :
Appellant :
:
v. : No. 1055 C.D. 2022
:
Mount Joy Township Board of :
Supervisors, Tessa Amoss, :
Dwight Amoss, Travis Berwager, :
Michael Boccabello, Alan Bushbey, :
Tina Bushbey, Larry Combs, Barbara :
Combs, Ann DeGeorge, Nicholas :
Demas, Christine Demas, Thomas :
Dunchack, Sr., Thomas Dunchack, II, :
Glenda Gerrick, Larry Hartlaub, :
Curtis Hawkins, Sherry Hawkins, :
Kathleen Hegan, Joseph Hofmann, :
Philip Hunt, Amanda Martin, Justin :
Martin, Todd McCauslin, Angela :
McCauslin, Angelique Merkson, :
Stephen Merkson, Tom Newhart, :
Carol Newhart, Thea Phipps, Jennifer :
Ricketts, Steven Ricketts, Deborah :
Sanders, Scott Sanders, Suzanne :
Schust, Emily Shoey, Barbara Steele, :
Marilyn Truss, Larry Woltz, Peggy :
Woltz, David Yancosky, Richard :
Ogg, Patricia Ogg, Lawrence R. :
McLaren, Mary Ann Hartlaub, :
Clayton S. Wood, Corbin Wood, :
Steven E. Wood, Christine L. Wood, :
David R. Updyke and Kenneth A. :
Hilbert :
ORDER
AND NOW, this 30th day of November, 2023, the September 2, 2022,
order of the Court of Common Pleas of Adams County is AFFIRMED.
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MARY HANNAH LEAVITT, President Judge Emerita