Newton Township’s supervisors say they could reject a developer’s 53-acre solar farm plan because of a possible legal violation.
New Leaf Energy, a Massachusetts-based subsidiary of Borrego Solar Systems, wants to build 12,000 solar panels on a portion of the old Summit Hills Golf Club in Lackawanna County. The club’s owners, Martin Kelleher, Roanne Kelleher and Daniel Kelleher are selling the land through their Summit Hills Realty, according to the township.
But the land is protected under the state's ‘Preserving Land for Open Air Spaces’ Act of 1967. The Kelleher family agreed to a state deed restriction in 1987, which conserves land for agricultural, horticultural, forestland, livestock or open space uses.
Keith Eckel is shocked New Leaf brought its proposal to the township. He’s a Clarks Summit resident, former president of the Pennsylvania Farm Bureau (1981-86) and a former member of the Pennsylvania Farmland Preservation Board. Eckel cited the "Open Air Act" at Newton’s conditional use hearing on Aug. 6. The language is clear, he said.
“It is limited strictly to agricultural and open space use,” said Eckel. “There is only one time in the history of the legislation that it’s been lifted. And it took the action of the state House of Representatives and the state Senate and the signature of the governor."
Lawyer: Restriction doesn't apply
New Leaf’s attorney, Jeff Malak from Chariton & Malak, argued the restriction doesn’t apply to his client. He said private contracts don’t apply to zoning decisions, which New Leaf brought to the board of supervisors by requesting to build in the township’s rural resource district.
The state would need to take the developer to court to uphold the act, said Malak.
“It’s a private property right bind between the Commonwealth of Pennsylvania and the landowner. If this matter was going to be enforced, they are the proper body to go and enforce that, meaning the commonwealth. And the commonwealth has the ability to enforce that restriction in a court of common pleas,” said Malak. “This [restriction] is not before the board of supervisors or before a zoning hearing board.”
Supervisor Kevin Carr asked if the developer needed the state's decision before it approached the board.
“So, you don’t know whether or not you can put this on there,” Carr asked.
Project manager Robert Tompkins replied that New Leaf is awaiting the state's approval to use the land for solar. Newton Supervisor Robert Naegele asked if New Leaf will still buy the property if the state upholds the "Open Air Act."
“It is unlikely that we would decide to exercise the option to actually buy the property if we don’t get the approval from the state,” said Tompkins.
Expert: 'Solar does not qualify'
Former Pennsylvania Farm Bureau President Keith Eckel doubts the project will reach final approval.
“Solar does not qualify [under the act]. My recommendation to the board of supervisors is simply to continue this until a letter from the commonwealth is provided, indicating that they have those rights.”
But the project may not receive township approval, regardless of the deed restriction: It may fail the township’s zoning regulations, according to Code Enforcement Officer Scot Haan.
Haan worries the project will impact neighborhood health and welfare, drawing from the township’s zoning code. It provides a ‘checklist’ for developers and supervisors to consider when reviewing conditional use applications. The land is zoned in the rural resource district, which must “preserve agricultural lands and woodlands.” Businesses should be “compatible with working lands,” like for livestock and farming.
He also said the deed restriction should invalidate the developer’s application.
“I think they kind of put the cart before the horse … It’s not a use I think that you should approve without those conditions being met,” said Haan.
'The welfare of our residents'
Township board Chairman Douglas Pallman echoed Haan, noting the proposed solar farm surrounds a residential area.
“One of my biggest concerns, I mean, outside of the deed restrictions that are on the parcel, would be the welfare of our residents. And it goes back to what I count are 13 direct[ly affected] residents.”
New Leaf’s Robert Tompkins promised nearby homeowners would not be affected by the project. He said the developer commissioned CohnReznick, a Chicago-based appraisal firm to research how property values are affected by nearby solar farms.
Margaret Koehler lives on Country Club Road, next to the proposed project. She questioned the research methods, drawing on her experience as a statistics professor at the University of Scranton.
“It’s 15 properties across the whole country. I’m sorry, that is not even statistically valid … you need at least 30 for a sample to be valid,” said Koehler. “... There’s such a thing called researcher bias. And it takes place when the interested party has a financial interest in the outcomes of the research.”
The board also criticized New Leaf’s study. Out of 15 properties, one is in Pennsylvania. Supervisor Naegele said the 90-page document should have focused on Pennsylvania properties and real estate values.
Dana Tamberelli, another Country Club Road resident, added that New Leaf is underestimating how the project will impact residents’ daily lives. She said her property is “butt up” to the property line, and her well is 20 feet away from the project.
“I’m all for solar power, okay? I think a lot of us are. But we want it done the right way, in the right place. This is not the right place,” said Tamberelli.
The board tabled its vote on the Newton solar project until its next conditional use hearing. The meeting is scheduled for Sept. 24 at 6 p.m. at the Newton Township Municipal Building.
