The Maryland Court of Special Appeals has now released a precedent-setting opinion, Board of County Commissioners of Washington County v. Perennial Solar, LLC, which holds that the state can preempt local zoning when granting approval for the siting of a large scale solar project.
As previously reported on Conduit Street, the Court issued a decision in late August which held that state law allows the Public Service Commission (PSC) to preempt by implication the zoning of a local government when granting a certificate of convenience and public necessity (CPCN) for solar energy generating systems. A CPCN is a state approval for the siting of large scale solar projects. The decision was previously issued as an “unreported decision” which meant it could not be cited as either precedent or persuasive authority in any other case. However, the Court reported the decision, meaning that it can be applied in other cases, after the PSC and Perennial Solar petitioned the Court.
There are two types of preemption – express and implied. Express preemption is where the General Assembly has clearly stated in statute that only the state is allowed to legislate in a particular policy area. Implied preemption, which is at the heart of this case, is where the General Assembly has acted with such force that an intent by the State to occupy the entire field must be implied. Implied preemption is not created by statute but rather is a doctrine developed in the courts.
The case outlined the complicated factors Maryland Courts use when reviewing implied preemption and then applied those factors to the facts of the case. One of MACo’s 2019 Legislative Initiatives is to create a clearer rule for when the state preempts local governments by removing the implied preemption doctrine.
While this case now sets precedent for the state to preempt local zoning, there is one important consideration that must be noted: the case decision is based on State law that was in existence prior to the adoption of HB 1350 of 2017. HB 1350 now requires the PSC to give due consideration to: (i) the consistency of the application with the comprehensive plan and zoning of each county or municipal corporation in which any portion of the generation station is proposed to be located; and (ii) the efforts by affected parties to resolve any issues presented by such a county or municipal corporation. HB 1350 was the result of a MACo Legislative Initiative to ensure local governments have a role in determining where solar facilities and other energy generation facilities are located. Several PSC decisions made since the passage of HB 1350 have sided with local zoning.