Court of Appeals Agrees to Hear Solar Preemption Case

Herald Mail-Media article (2019-02-06) reported that the Maryland Court of Appeals has agreed to review a lower court decision (Board of County Commissioners of Washington County v. Perennial Solar) which held that Public Service Commission (PSC) could preempt local zoning when approving a large-scale solar project (more than 2 megawatts). The specific contested project is 42,000-panel array that would occupy about 86 acres and generate 8-megawatts near Cearfoss Circle in Washington County.

As previously reported on Conduit Street, the Maryland Court of Special Appeals issued an unreported decision on the Perennial Solar case on August 28, 2018, that held that state law allows the 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 Court of Special Appeals later reported the decision (meaning that it can be cited as precedent and used in other cases) after PSC and Perennial Solar petitioned the Court. In response, the Washington County Commissioners filed an appeal with Court of Appeals.

The article noted that interest in the case extends to other counties. From the article:

The case is scheduled for arguments in May, according to a court order.

The order also states that the county commissioners of Kent and Queen Anne’s counties, on the Eastern Shore, may file briefs in support of Washington County.

Other Maryland counties are keeping an eye on the case.

MACo supports solar development but believes local zoning should be recognized when siting large-scale projects. The issue was a MACo legislative initiative in 2017, which led to the passage of HB 1350. That bill 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.

Useful Links

Board of County Commissioners of Washington County v. Perennial Solar, LLC

Prior Conduit Street Coverage of Solar Preemption Case

HB 1350 of 2017