MD Appeals Court Finds Implied Preemption Over Siting of Solar Farm

This post was authored by William Wantz, Esq.

A commercial solar farm was proposed for 86 acres adjacent to Cearfoss, a designated rural village in Washington County MD. Washington County’s comprehensive plan and special exception requirement protect rural villages from incompatible encroaching development.

Perennial Solar obtained an option to lease 86 acres adjacent to Cearfoss, on which they proposed to develop a large solar generating facility, and obtained a special exception from the zoning board, despite demonstrable inconsistency with the comprehensive plan and adverse effect on surrounding residential properties.  Cearfoss residents sought judicial review in the Circuit Court, in which the County became an additional party.

On appeal, the Circuit Court dismissed, finding implied preemption of local zoning by the Maryland Public Service Commission (PSC), on the basis of its regulation of large solar generating projects. Implied preemption differs from express preemption in that implied preemption is found by a court, while express preemption is determined by the legislative body.

Cearfoss residents and the County appealed to the Court of Special Appeals. As judicial review continued, Maryland legislatively amended and refined the respective roles of local government and the PSC, requiring an applicant for PSC approval to demonstrate, inter alia, consistency with the local comprehensive plan. The legislative proposal provided a testimonial role for local government in hearings before the PSC.  Finding that local government would have a seat at the regulatory table, the Court of Special Appeals revoked its zoning authority.

Opining that the comprehensive plan was only a guide, and analogizing the need for a solar farm in Cearfoss to a 1990 approval of a regional high-voltage transmission line in Howard County v. Potomac Electric Power Co., 319 Md. 511 (1990), the court observed that the PSC’s regulation of certain solar generating enterprises was pervasive. The court declined to acknowledge local land use expertise, or the relative inexperience of the PSC in local land use controversies.  Nor did the appellate court undertake to reconcile its decision with Maryland’s longstanding statewide legislative public policy that planning and zoning shall be implemented by local government.  Maryland Code, Land Use Article, §4-101 

On November 28, 2018, the Board of County Commissioners filed a petition for a writ of certiorari in the Maryland Court of Appeals.

Board of County Commissioners of Washington County, et al. v. Perennial Solar, LLC, 2018 WL 5993859 (MD App. 11/ 15/2018)