A developer wants a judge to remove a restrictive covenant on a property in Newton Twp. so it can build a solar farm there.

Attorney Jeffrey Malak filed a declaratory judgment lawsuit last week in Lackawanna County Court on behalf of Newton Solar 1 LLC against the state Department of Conservation and Natural Resources and the Department of General Services seeking to remove the restrictive covenant on the property on Hillside Drive near Newton Ransom Boulevard and Country Club Drive.

Township supervisors denied a plan by New Leaf Energy, the Massachusetts-based company doing business as Newton Solar 1 LLC, and Borrego Solar Systems Inc. of Oakland, California, to build nearly 12,000 solar panels on the property last fall. If approved, the developer would purchase the property from its current owner, Summit Hills Realty.

Supervisors cited resident health and safety and deed restrictions on the property that only allows for agricultural use as factors in their decision. They also said the developer didn’t present information proving a solar farm is an allowable use on the property.

Malak appealed the supervisors’ decision in December and it remains ongoing.

He said in the most recent lawsuit the restrictive covenant on the property, and the state agencies’ decision to enforce it, would render the property unprofitable for use and may preclude Newton Solar 1 from purchasing it.

The restrictive covenant, based on a state law, prohibits the developer from using the property for any purposes except agriculture, horticultural, forestland, livestock or open space, Malak said in the lawsuit.

Newton Solar 1 asked the agencies in an email to consent to building the solar farm last June but they denied the developer’s request. Malak said in the lawsuit the property has “little to no economic value” to the developer and the property’s owner because the project can’t proceed on the property, adding the owner continues to incur costs and expenses to maintain it and can’t sell it to the developer.

He said the agencies have not enforced a restrictive covenant on a neighboring property.

Malak is asking the court to declare the restrictive covenant unenforceable, along with costs and other relief the court deems necessary.

The agencies have not responded to the lawsuit.

Originally Published: April 24, 2025 at 12:50 PM EDT