Community and utility scale solar in PA and NY

by Stephen Wagner

“Because utility scale solar is relatively new in Pennsylvania, most municipalities have no zoning ordinances dealing with solar,” stated Darrin Youker, director of state government affairs with Pennsylvania Farm Bureau (PFB), during a recent webinar. He also serves as the principal lobbyist for PFB in Harrisburg. In 2017, Youker was appointed to the Board of Directors for the Center for Rural Pennsylvania, a bipartisan research agency for Pennsylvania government.

“A recent study done by Penn State’s Dickinson School of Law found that 87% of all our municipalities lack any kind of zoning laws governing solar development,” he said. “We also don’t have a comprehensive standard statewide land use policy when it comes to solar.” But some neighboring states have looked at compatibility of solar with prime soils and other agricultural situations. However, there are some existing laws in Pennsylvania that can influence solar development.

Solar power that is produced primarily for off-site consumption, community scale solar, is not allowed on farmland that has been preserved through the state’s Farmland Preservation Program. Pennsylvania has a Clean and Green program, “a preferential tax assessment program that bases property taxes on use values rather than fair market values. This ordinarily results in a tax savings for landowners. The Pennsylvania General Assembly enacted the program in 1974 as a tool to encourage protection of the Commonwealth’s valuable farmland, forestland and open spaces. Currently, more than 9.3 million acres are enrolled statewide,” according to the state Department of Agriculture.

Before getting into land use concerns, Youker addressed community solar. “Community solar developments are typically smaller than utility scale,” he said. “However, Pennsylvania law right now does not allow community solar to exist in Pennsylvania. It is allowed in New York. Briefly, community solar allows multiple individuals to have access to solar energy.”

When it comes to energy production, the Keystone State envisions two possible scenarios. The first is where you think of solar on your home or business producing energy for your own use. The second is utilities where an energy-generating facility is producing energy and putting that into the grid, either a coal-fired power plant or utility-scale solar. Community is sort of a hybrid between those two, where there are multiple subscribers, most of whom are not going to own the land where that facility is located.

In New York, there’s a lot of conversation about solar development statewide. Elizabeth Wolters, deputy director, Division of Public Policy at New York Farm Bureau, said, “Right now we depend largely on hydroelectric power. You will see that what is in the hopper now is that there is a huge shift in where our renewable resources are expected to come from.” Currently in the renewable queue are off-shore winds, but Wolters said there is also a lot of large scale solar currently contracted in the pipeline as well. Landowners are starting to receive additional solicitations for solar energy on their property.

She talked about two kinds of solar in New York. “You have the large scale, which is the big utility centralized generation; and we also have distributed solar,” which she described as encompassing a lot of different types of solar (home-based solar, business-based solar, etc.). “In New York State, legislation was passed recently creating an Office of Renewable Siting, which replaces the old Article 10 siting of utility scale renewable energy projects. Anything 25 watts or greater, going forward, that is renewable energy will be going through this new office. One of the things, from a Farm Bureau perspective, that we were encouraged to see actually within the law is there is input from the Department of Agriculture and Markets in the new office of Renewal Energy Siting. Furthermore, there are regulations that the Department of Ag has put out that are also weapons within office regulations which will help when negotiating contracts, because as a starting point, there are criteria that should be met when dealing with agricultural lands, including having an agricultural monitor.

“This is also starting to contain more ag-specific components, which is really interesting to watch. If you are an agricultural landowner or farmer, this will help to start conversations, obviously with an attorney, with a developer when siting on a farmland,” she said.

Another component is mitigation fees. If you are developing on lands, soil classifications can have mitigation fees associated with those soil types, and those will be held by a local community and be utilized to help support agriculture elsewhere in the county.

Here are some things you might want to consider as you discuss leases, said Wolters: “Similar to Pennsylvania, there are tax assessment implications if you have a farm and are getting ag assessment, and you’re looking to put your land into solar development. Think of the conversion penalties that may ensue. Who’s paying those penalties – the developer or you? If you consider farming the rest of your land, what protections might you lose if that land is converted out of ag production and you lose district protections?”

Wolters footnoted historic preservation considerations as well. How many farms are on historic properties? This must be considered if you have any benefits, tax benefits or are looking to receive any benefits through historic preservation programs.

“We don’t have in New York a set plan for renewal energy in terms of siting or where it’s going to go,” Wolters said. “The process is very open. State laws and local laws don’t really have a plan in mind. The other challenge is that local laws vary widely.”

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