Posted by: Patricia Salkin | December 29, 2018

MD Court of Special Appeals State Law Preempted Local Zoning Authority with Respect to Solar Energy Generating Facility

This post was authored by Matthew Loeser, Esq.

Appellee, Perennial Solar, LLC, filed an application for a special exception and variance to construct a solar panel farm in Washington County, Maryland. The Washington County Board of Zoning Appeals granted the application, and the Board of County Commissioners of Washington County and several aggrieved residents, appealed the decision to the Circuit Court for Washington County. On a preliminary motion filed by Perennial, Perennial argued that the Maryland Public Services Commission (“PSC”), and its law codified in the Public Utilities Article of the Maryland Code, had exclusive jurisdiction for approving the SEGS proposed by Perennial, including site location approval. The court determined that Public Utilities Article (“PUA”) §7-207 preempted the Washington County Zoning Ordinance and that the PSC had exclusive jurisdiction to approve the type of SEGS proposed by Perennial.

The court first noted that based on the comprehensiveness of § 7-207, local zoning regulations and comprehensive plans are impliedly preempted by state law for SEGSs requiring a CPCN. Specifically, the statute grants the PSC broad authority to determine whether and where the SEGS may be constructed and operated. Furthermore, it was evident that the Legislature intended to have the state govern SEGS approval by requiring local government input into the state’s final decision. Appellants contended that since a CPCN was required “for some but not all solar photovoltaic system-based generating stations”, the legislative body did not intend to preempt the entire field.” The court rejected this arguement, finding that exempting certain generating stations from the CPCN requirement did not lessen the comprehensiveness of § 7-207. The court further found Perennial’s proposed SEGS was not exempt from the CPCN requirement, and the PSC remained the lead agency for this project.

Lastly, Appellants argued that Perennial was not governed by PSC law because the Public Service Commission regulated only solar photovoltaic systems operated by public service companies. Here, the statute expressly provided that “the powers and duties listed in this title do not limit the scope of the general powers and duties of the Commission provided for by this division” and “a person may not begin construction in the State of a generating station” until a CPCN permit is obtained. A “person” was defined as an “individual, receiver, trustee, guardian, personal representative, fiduciary, or representative of any kind and any partnership, firm, association, corporation or other entity.” As the court determined Perennial was “a person” seeking to construct a generating station in Maryland, it was therefore required to get a CPCN through the PSC.

Board of County Commissioners of Washington County v Perennial Solar, 2018 WL 5993859 (MD 11/15/2018)

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