Westmoreland judge ponders Unity solar farm appeal

A heated dispute over a proposed solar farm in Unity might be headed back to the local zoning board.

Westmoreland County Common Pleas Judge Harry Smail Jr. on Thursday suggested the option of remanding the appeal filed by developer Ninemile Run Solar Master Tenant LLC to the township zoning hearing board, though both sides urged him to rule immediately in their favor.

The heart of the dispute centers on a clashing interpretation of a single word: “coverage.” The developer’s proposed power-generating solar array is planned for an agriculturally zoned property along Charles Houck Road, which allows a maximum of 20% coverage.

Ninemile Run attorney Michael Korns argued the solar panels and related infrastructure will cover 10.65 acres, accounting for just under 17% of the 62.84-acre property.

“At the end of the day, those numbers are the only ones that matter,” Korns said.

But attorneys representing the township and its zoning board argue that “coverage” should include the entire area within the perimeter fence that would surround the solar farm.

“The township views this development as a unit,” said David DeRose, who represents the zoning board.

“That’s our divide,” Smail told the opposed attorneys. “That’s why we’re here.”

Township officials, including zoning board attorney David DeRose and township solicitor Gary Falatovich, also contend the developer initially failed to submit a surveyed site plan for the array. They argue that without that plan, the zoning board had no way to determine if Ninemile Run’s application for a needed special exception complied with the coverage restriction, leading to the application’s denial. They maintain the applicant failed to meet its burden of proof.

All sides agree the township ordinance governing solar arrays does not spell out a definition of “coverage,” one of the primary topics of contention in the appeal.

Smail said if he remands the case, he would instruct the zoning board to focus only on the major points of contention, expressing concern a second look might otherwise simply retrace the ground covered during a series of four hearings last year.

Since the zoning panel turned down Ninemile Run’s plans for an array by a 3-2 vote Dec. 18, the board gave initial approval for a separate proposed solar farm in the township — to be located at a reclaimed former quarry off Bethel Church Road.

Also, township supervisors amended the local solar farm zoning guidelines. The revised version confines placement of arrays to property in the township’s conservation zone, a sparsely populated area along Chestnut Ridge.

Before that rule change took place, Korns said, Ninemile Run filed a new application for the proposed Charles Houck Road array — this time including a surveyed site plan.

That followup application has been stayed while the court appeal plays out.