Local LU&Z Preempted in the Solar Field


On a day yielding no sunshine, but rather the first snow of the winter season in parts of Maryland, the Maryland Court of Special Appeals reissued its decision in Board of County Commn. of Washington County v. Perennial Solar, LLC, (citations currently unavailable), as a reported opinion. Perennial Solar may now be used as precedent for the proposition that state law preempts local zoning authority with respect to solar fields.

On August 28, 2018, the Court of Special Appeals issued unreported opinion, Board of County Commn. of Washington County v. Perennial Solar, LLC, 2018 WL 4090873, that upheld the issuance of a certificate of public convenience and necessity (CPCN) for a solar farm on the basis that local zoning regulations are preempted by State law and the applicant, although not a public utility company, was governed by the PSC because it qualified as a “person” over which the PSC has jurisdiction to issue a CPCN under PUA § 7-207(b)(1)(i).  

However, the CPCN at issue was subject to PUA § 7-207(e) before the amendments enacted by H.D. 1350, 2017 Leg., 437th Sess. (Md. 2017) and S. 851, 2017 Leg., 437th Sess. (Md. 2017), which added two additional criteria to the CPCN process.  Those additional criteria are that the Maryland Public Service Commission (PSC) must give “due consideration” to: (1) the consistency of the application with the comprehensive plan and zoning of each county or municipal corporation where any portion of the generating station is proposed to be located” and; (2) “the efforts to resolve any issues presented by a county or municipal corporation where any portion of the generating station is proposed to be located.”

But, as set forth in the seminal case holding that State law impliedly preempted local law in the field of public utility service, Howard County v. PEPCO., 319 Md. 511 (1990), the “due consideration” test is not a controlling deference or approval rights allocated to the local jurisdiction that would frustrate State preemption.

Thus, the viability of preemption of local zoning requirements and Comprehensive Plan recommendations by the State appears to becoming a more certain proposition in Maryland.

This blog was written by Casey Cirner at Miles & Stockbridge.

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