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Md. high court: State law trumps county control of solar panels

Booth writes first opinion, quotes Beatles

State law trumps local control over the placement of solar electricity panels, Maryland’s top court unanimously ruled Monday.

In its 7-0 decision, the Court of Appeals said the Maryland General Assembly’s comprehensive delegation of regulatory authority to the state Public Service Commission impliedly preempted county efforts to control panel placement within county borders.

The PSC is required under state law to give due consideration to the desires and concerns of localities, but the commission has the final decision-making authority under the state Public Utilities Article, the high court said.

“Under the plain language of the statute, local government is a significant participant in the process, and local planning and zoning concerns are important in the PSC approval process,” Judge Brynja M. Booth wrote for the high court. “However, the ultimate decision-maker is the PSC, not the local government or local zoning board. Although local zoning laws are preempted and therefore not directly enforceable by the local governments as applied to generating states … they are nevertheless a statutory factor requiring due consideration by the PSC in rendering its ultimate decision.”

The decision marks Booth’s first written opinion as a judge on the Court of Appeals, which she joined on April 18 following her appointment by Gov. Larry Hogan.

Booth, who succeeded retired Judge Sally D. Adkins, opened her opinion on solar regulation by quoting The Beatles: “Here comes the sun, and I say, ‘It’s all right.’”

The high court’s ruling marked a defeat for Washington County, which had sought to exercise local control over the placement of solar panels that Perennial Solar LLC seeks to install. The company successfully argued – as it had in lower courts – that the PSC and not the county has final say over the placement under Maryland law.

The Washington County Circuit Court and the intermediate Court of Special Appeals had held that the county zoning board’s oversight of Perennial’s placement of solar panels is impliedly preempted by state law and PSC control, even though such preemption is not expressly written in the statute.

Upholding these decisions, the Court of Appeals said the PSC’s reviewing authority is “extensive” and the commission has “exclusive authority to approve generating stations” in the state, which would include the approval of Certificates of Public Convenience and Necessity, or CPCNs, for Solar Energy Generating Systems, or SEGS, the court said.

“The General Assembly’s intent to preempt local government’s zoning approval authority over generating stations is clear from the plain text of the statute, which specifically defines the role of local government, as well as planning and zoning considerations in the PSC review and approval process,” Booth wrote. “Although the local governing body’s recommendations are contemplated with ‘due consideration,’ the final determination whether to approve a CPCN for SEGS is ultimately made by the PSC.”

The Eastern Shore counties of Queen Anne’s and Kent supported Washington County’s argument for local control. Their attorney, Christopher F. Drummond, said the county commissioners were “disappointed” with the decision.

“However, practically speaking, the CPCN process at the Public Service Commission has become more sensitive to local land use and zoning issues in the past three or four years and we hope that the state agencies involved will continue to involve local governments and include reasonable conditions of CPCNs that are consistent with local requirements,” added Drummond, a Centreville solo practitioner who argued before the high court on behalf of Queen Anne’s and Kent counties.

Perennial’s attorney, Andrew F. Wilkinson, stated in an email message that he was “pleased” with the high court’s decision.

“The case was well argued on both sides and the decision gives important direction to all parties involved in solar energy in our state moving forward,” said Wilkinson, of Wilkinson Law in Hagerstown.

Deputy Washington County Attorney Kirk C. Downey, who argued the case before the high court, did not return a telephone message Tuesday seeking comment on the decision.

The Court of Appeals rendered its decision in Board of County Commissioners of Washington County, Md. v. Perennial Solar LLC, No. 66 September Term 2018.

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