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Md. court agrees to report decision that state law preempts local solar farm regulation

Standard Solar developed, built and financed this 1.4 megawatt solar project, which is on six acres of school system-owned land at the Fort Smallwood Facilities complex in Pasadena. (Standard Solar photo)

The state, not local governments, has the authority to regulate solar farms, the Maryland Court of Special Appeals has ruled in a reported opinion. (Standard Solar photo)

The state has implicitly preempted local regulation of potential solar farms, according to a ruling from Maryland’s second-highest court re-issued Thursday as a reported opinion.

The three-judge panel’s determination that the Maryland Public Services Commission has exclusive jurisdiction for considering applications for solar farms, previously issued in August as an unreported opinion, can now be cited as precedent and is an issue that other counties are interested in, according to William C. Wantz, a Hagerstown attorney who represented residents opposed to the location of the proposed Washington County facility.

In addition to western Maryland, counties on the Eastern Shore have seen an uptick in the use of farmland for solar revenue and have also faced zoning issues.

“The central issue here is where the power to regulate land use should be placed,” Wantz said.

Perennial Solar LLC’s proposed solar facility on 86 acres of land zoned for agriculture in Cearfoss would impact values for 40 properties, according to Wantz, and the homeowners objected to the Board of Zoning Appeals’ 2015 decision to grant an exception and variance for the project.

“They objected to the adverse effect of the proposed use of this land on their property values,” Wantz said.

The citizens appealed to Washington County Circuit Court and the Board of County Commissioners intervened in the case, but Perennial filed a motion arguing the court lacked jurisdiction to hear the appeal because state law preempts the zoning ordinance. The court agreed, granting the motion.

The Court of Special Appeals affirmed, finding the legislature implicitly preempted local regulation in this area with the Public Utilities Act, which governs the application process for construction of a generating station and provides exemptions for certain systems.

“The statute grants the PSC broad authority to determine whether and where the (solar facilities) may be constructed and operated,” Judge Michael W. Reed wrote for a unanimous three-judge panel.

The Public Service Commission is required to provide notice to interested parties, including the governing body of the county or municipality where the proposed project is located, and allow for public comment, according to the opinion. The commission then gives “due consideration” to the recommendation of the local government, which Wantz said takes authority from the county and has them “sign the witness list” with other parties.

The court determined the county’s zoning regulations were “much less thorough regarding the construction of stations” than the statute, which was comprehensive.

Deputy County Attorney Kirk C. Downey, who handled the case, did not respond to a request for comment Thursday. Hagerstown attorney Andrew F. Wilkinson, who represented Perennial, also did not respond.

Wantz said because the opinion was updated and published, the court has not issued its mandate yet, so the time to seek certiorari in the Court of Appeals has not run.

The case is Board of County Commissioners of Washington County et al. v. Perennial Solar, LLC, No. 1022, Sept. Term 2016.

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