Posted by: Patricia Salkin | August 10, 2019

Maryland Court of Appeals Removes Local Authority to Zone Solar Farms

This post was contributed by William C. Wantz, Esq.

The Maryland Court of Appeals, applying the judicial doctrine of implied preemption, has removed from Maryland local government the power to zone solar farms regulated by the Maryland Public Service Commission.  Previously, Washington County required a special exception for a large solar farms selling energy at wholesale.  Choosing between concurrent and exclusive regulation, The Court of Appeals chose exclusive, finding preemption through implication, contrary to Maryland’s longstanding express legislative policy that “planning and zoning controls shall be implemented by local government.”  Md.Ann. Code, Land Use Article, §4-401;10-201; Local Government Article, §§5-212, 10-324   In limiting its analysis to implied preemption, the Court acknowledged that there is no express preemption of local planning and zoning under prevailing Maryland statutory law. This overt judicial erosion of local land use authority through judicial interpretation removes traditionally local concepts of special exception jurisprudence from the solar farm decision-making process.  Vicinal compatibility of solar farms will now be determined – if at all – by a centralized, State-controlled agency.

The litigation giving rise to the Court’s decision began in judicial review of a challenged special exception for a regulated wholesale solar generating facility to be located on 86 acres of leased tillable farmland adjacent to the rural community of Cearfoss.  Twenty-nine surrounding homeowners joined in opposition to the project on the basis of inconsistency of the proposed use with the County comprehensive plan and significant diminution in resale value of their contiguous and adjacent single-family homes.  By Maryland statute, plan inconsistency precludes the grant of a special exception.  Statutory “consistency” is a defined term requiring that a proposed special exception use be in furtherance of, and not contrary to the local comprehensive plan.  Md.Ann.Code, Land Use Article, §§1-301, et seq.

The Court of Appeals noted the tension between local zoning authority and State advocacy of a renewable energy agenda.  The Court could have delegated regulation of utility-related issues to the State’s utility commission, leaving traditional issues of farmland preservation and vicinal compatibility to local government.  Instead, the Court removed local government from the decision-making process.

The Court did not comment on the lack of knowledge and experience of the Public Service Commission (PSC) and its staff of public utility law judges (PULJ) in the field of local government land use planning and zoning, or the contribution of local geographical familiarity, knowledge and acquired experience in the planning and zoning-regulatory process.  The Court considered recent post-hoc amendments to the State’s utility regulations calling upon the PSC and its PULJ’s (supported by the PSC and utility industry lobbyists as a compromise to avoid express preemption), inviting local government to have an ex-officio, non-voting seat at the table, and requiring “due consideration” by the PSC of local zoning and comprehensive plans.  The Court also found support for its decision in proposed legislation which was introduced but never voted upon by either chamber of the Maryland General Assembly.

With Maryland’s 23 counties and 157 municipalities, one would expect PULJ’s to have relatively less familiarity with local community planning and regulatory matters in each of Maryland’s autonomous local land use jurisdictions than local planners and zoning officials.  It remains to be seen how utility regulators will acquire necessary local geographical familiarity and proficiency in locally established land use policy across Maryland’s diverse jurisdictions in which solar farms are proposed.  It is not enough that farmers are willing to lease.

Other unresolved issues include how the Commission will give “due consideration” to local planning and zoning.  Nothing requires local government or planning staff to participate or assist in the State’s administrative process.  It is unlikely that local planning staff will attend.

The future of judicially-preempted site plan requirements likewise  remains uncertain. Site plan review has traditionally been an essential component of the zoning process. Unlike judicial review in local land use matters, The Public Utilities Article allows the introduction of new evidence in circuit court appeals. Because standing in appeals from the Public Service Commission is broader than in judicial review of land use decisions, the Court’s decision will predictably expand standing of potential opponents in contested solar farm approval proceedings. How the statutory requirement of “due consideration” of local zoning and comprehensive plans will play out remains unclear.   In thoughtful consolation to local government, Judge Booth observed in footnote 22 of the Court’s opinion:

“[T]his holding should not be read to suggest that local governments do not have the authority to address solar projects in their comprehensive plans and zoning regulations.”

Board of County Commissioners of Washington County v. Perennial Solar, LLC,  2019 WL 3071755 (MD  7/15/2019).

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