Last Thursday the Washington Township Zoning Board held a hearing to listen to arguments that challenged the validity of the township's commercial solar panel ordinance. 

            Several months ago, Thomas Powanda, who at the time, was the chairman of the Washington Township Board of Supervisors, mentioned at a public meeting that he did not want to see commercial solar panels throughout the township. Within a short time of Powanda's remarks, an ordinance restricting commercial solar panels was proposed.

            Washington Township did have a solar panel ordinance that permitted solar panels on roofs and on land for private use.  

            After a review of the proposed ordinance, the Berks County Planning Commission warned the township its ordinance was too restrictive.  Nevertheless, the supervisors enacted the ordinance. 

            Commercial solar panels were restricted in many zoning districts that included watershed conservation areas and near high-traffic roads. 

            Several large property owners who have resisted the proposals of developers to build homes on their land were concerned by Powanda's remarks.  Those same large landowners struggle with huge tax bills on their properties in an attempt to protect the environment, maintain the township's rural atmosphere, and prevent the strain on services that occurs when housing developments are built.

            When the commercial solar panel ordinance was enacted the large landowners warned there would be a legal challenge to the township's commercial solar panel ordinance because they deemed it exclusionary.  Within a month of the enactment of the ordinance, Washington Township was put in the position of defending the validity of its ordinance.

            Washington CSG 1, LLC, challenged the township's commercial solar panel ordinance on behalf of Sun Vest Solar.  Attorney Sean Gallagher represented Sun Vest Solar.  Mike Gombar acted as solicitor for the township's zoning hearing board. 

            Bill French, regional director and project developer for Sun Vest Solar, testified as an expert witness that his company would like to construct solar panels on a 23-acre site near Old Route 100 and Sycamore Road.  Approximately 12 of those acres will contain commercial solar panels. 

            French noted solar panels need between 15 and 40 acres.  Ideally, they need to be placed in a south-facing location, near an electric substation, and where three-phase electric power is close.  The land must be open, contiguous with no trees and not in a flood plain.  French explained solar panels do not have a glare because they absorb sunlight instead of reflecting it.  

            Once the solar panels are constructed, there is no maintenance.  There will be no lighting or building on the site.  It will be monitored by wireless means.  The solar panels are also silent. 

            An eight-foot agricultural knot fence with screening will surround the solar panels.  Prairie flowers and prairie grasses will be seeded around the solar panels for a natural meadow look that will also attract pollinators. 

            If weeds crop up near the panels a form of Roundup, accepted by the United States Department of Agriculture (USDA) for agricultural use, will be spot sprayed, but only where necessary.  Roundup is commonly used in farming to eradicate noxious weeds in a field. It breaks down easily so it is unlikely to enter wells or the watershed. 

            French testified Sun Vest Solar will adhere to all state, county, and township stormwater regulations.  No easements from neighboring property owners will be necessary.  When the solar panel's useful life is finished, the land will revert to its natural state.

            Andrew Schwartz, a landscape architect and urban planner for 30 years, testified as an expert witness for Sun Vest Solar that the township commercial solar panel ordinance is restrictive.

            Schwartz remarked that out of 4,000 acres in Washington Township with nine zoning districts, only the general industrial (GI) zoning district, which is approximately 53 acres, permits commercial solar panels.  He explained that "de jure" zoning is an outright prohibition of a zoning use across all zoning districts.  "De facto" zoning means an ordinance appears on the face to permit a zoning use. 

            When the standards for the zoning classification are so strict, such as the use of setback requirements, the zoning use is actually precluded.  The concept is called "tokenism". 

            The entire Washington Township GI zoning district is less than one percent of the township with only 5.3 contiguous acres.  The GI district is almost all developed with steep slopes. 

            Schwartz testified a court will consider "tokenism" when less than .6% is allotted for a zoning use. 

            In the Washington Township ordinance, in reality, the allotted zoning is .06%. 

            Schwartz asserted the proposed solar panel field will be unmanned with no impact on sewers, roads, or schools.  Additionally, the site will not lose soil or impact wetlands.  Schwartz noted an ordinance that provides for an accessory solar panel use on the roof of a house or barn is not the same as a commercial solar panel use ordinance.

            Several neighbors appeared at the meeting as parties to the zoning hearing.  Their properties are within 500 feet of the proposed solar field.  Several other neighbors wrote letters to the zoning hearing board because they were unable to attend the hearing.  All the neighbors who wrote to the zoning board were in favor of the commercial solar panels.

             If the zoning challenge is denied by the zoning board, the applicant can appeal the decision to the Berks County Court of Common Pleas.  Additionally, anyone who entered their appearance as a party to the zoning hearing has a right to appeal the zoning board decision to the Berks County Court of Common Pleas.

            The validity challenge to the Washington Township commercial solar panel ordinance will be continued until Monday, October 7, at 6 p.m., at the township municipal building. 

            At that time, Washington Township will present its case for the ordinance.