Frederick County Asks PSC For Pause in Solar Projects While Finalizing Zoning Bill

A Frederick News-Post article (2017-04-19) reported that Frederick County Executive Jan Gardner and County Council Vice President M.C. Keegan-Ayer a letter to the Maryland Public Service Commission (PSC) on April 11 requesting the PSC hold consideration of two utility scale solar projects while the County finalizes zoning legislation for solar farm siting. The two projects, LeGore Bridge Solar Center and Biggs Ford Solar Center, have applied for a certificate of public convenience and necessity (CPCN) with the PSC and have requested expedited consideration. The PSC must grant a CPCN before the projects can begin construction. From the article:

The intent of the letter was to make the commission aware that the County Council was working on local legislation, Gardner said Tuesday. …

Keegan-Ayer wrote the [zoning] bill that is currently in front on the council, which would regulate the construction of commercial-scale solar on agricultural land. The bill protects the county’s prime agricultural soils and the viewshed along U.S. 15, which is also recognized as the Journey Through Hallowed Ground.

Another aim of the letter was to alert the commission that the companies may be trying to accelerate their applications and projects in order to circumvent the county’s solar bill, should it pass, Keegan-Ayer said. …

“We’re really trying to strike a balance between the needs of green energy and solar collection, and … our agricultural communities and our agricultural heritage,” Gardner said.

The article also discussed energy siting legislation (HB 1350 of 2017) that was passed by the Maryland General Assembly and is awaiting signing by Governor Lawrence “Larry” Hogan. The legislation was a MACo 2017 Legislative Initiative designed to give a greater local government voice in the siting of energy generation facilities.

Across Maryland, local jurisdictions are having issues controlling energy development, said Leslie Knapp, legal and policy counsel for the Maryland Association of Counties. There have already been lawsuits in Kent County over a solar project and in Allegany County about a wind project.

A state bill that passed both chambers of the General Assembly last session requires the commission to consider whether a proposed energy generating station is consistent with a jurisdiction’s comprehensive plan and its zoning.

The article stated that the current version of the County’s zoning legislation would limit commercial solar facilities  on agricultural land to 75 acres.
Useful Links

Sustainable Growth Commission Updating Reinvest Maryland Policy

A workgroup within the Maryland Sustainable Growth Commission is working to update and refine Commission’s Reinvest Maryland Report, which made State and local government recommendations regarding infill, redevelopment, and revitalization. While in development, Reinvest Maryland was originally known as Infill, Redevelopment, and Revitalization (IRR).

The original report, released in October of 2014, included over 60 recommendations broken down into 8 categories:

  1. Establish a Vision for Reinvestment
  2. Create and Better Fund Innovative, Effective Reinvestment Programs
  3. Identify and Address Regulations and Policies That May Impede Reinvestment
  4. Deploy Targeted Financial Tools
  5. Promote Equitable Development
  6. Encourage Excellence in Community Design and Preservation
  7. Use Metrics to Gauge Success and Provide Accountability
  8. Accelerate Transit-Oriented Development

The original report was supported by MACo.

The workgroup is updating the report to reflect current programs, land use practices, and economic development needs. The updated report will also better highlight programs and recommendations applicable to urban, suburban, and rural growth areas. County representatives on the workgroup include MACo Legal and Policy Counsel Les Knapp and Garrett County Planning and Land Management Director Deborah Carpenter.

Currently, workgroup meetings are occurring every two weeks prior to the Commission’s full meeting on May 22 in Frederick, MD. For further information, please contact Les Knapp at 410.269.0043 or lknapp@mdcounties.org.

Useful Links

Sustainable Growth Commission Webpage

Former Reinvest Maryland Report – Fast Download Version (4 MB)

Former Reinvest Maryland Report – Full Resolution Version (22 MB)

Former Reinvest Maryland Report Appendices

Prior Conduit Street Coverage of Reinvest Maryland/IRR

Anne Arundel County Council Approves Medical Marijuana Zoning Tweak

Anne Arundel County Council members on Monday night passed legislation tweaking the county’s medical marijuana zoning rules, a change officials said will align the law with the council’s original intentions.

Council Bill 21-17 specifies that medical marijuana dispensaries located north of Route 50 or north of the northeast shore of the South River are not allowed within 1,000 feet of a house or school building. Those restrictions do not apply elsewhere in the county.

According to The Capital Gazette,

The change, which passed unanimously, represents a tightening of the previous law, which banned dispensaries within 1,000 feet of homes and schools only if the business was located both north of Route 50 and east of the South River.

Land affected by the updated restriction includes Annapolis, the Broadneck Peninsula, Crofton, Odenton and all of north county, including Glen Burnie and Pasadena.

The change will not apply to an application for a dispensary on West Street, which could become the county’s first. While the site falls within the new boundary lines, it will not be affected because the application is already in progress.

Administration officials and councilmen alike said the bill’s changes describe the law they thought they had passed when the rules for medical marijuana were first crafted in late 2015.

“We believe (this) is the intent when we discussed this bill originally,” said Bernie Marczyk, a lobbyist for County Executive Steve Schuh.

Councilman Chris Trumbauer, an Annapolis Democrat, voted in favor of the bill because, he said, it “just corrects the code to be what we thought we passed back then, so there are no additional regulations put on the industry.”

“I continue to believe that our code is too restrictive for this new industry, but I’m going to vote yes because I’m honoring the compromise we passed last year,” he said.

Councilman Jerry Walker, a Crofton Republican, said fewer regulations may be warranted if the existing rules prove too difficult for fledgling medical marijuana businesses.

“I think the majority of us would like to see them open, and if we create this system that’s too restrictive, too cumbersome, we may need to look at how we set it up,” he said.

Read the full article for more information.

Register Now – Weather It Together: Protecting Maryland’s Historic Buildings from Floods Workshop on May 25

Join the Maryland Historical Trust and Partners for a workshop: Weather It Together: Protecting Maryland’s Historic Buildings from Floods on May 25, 2017 from 8:00 am – 5:00 pm in Crownsville, Maryland.

The workshop will cover how to plan for nuisance flooding and flood events, discuss professional perspectives on flood mitigation and adaptation, and share tools and resources that you can use in your own community. Sessions will be interactive with ample opportunity for questions.

Local planners, emergency management personnel, historic preservation organizations and interested citizens are encouraged to attend.

The deadline to register is May 18, 2017. However, space is limited – so act now!

Your registration fee of $20, payable at the door, will cover a light breakfast, lunch and coffee for the day.

Click here to register for the event!

This workshop is generously supported by the National Park Service through the Hurricane Sandy Disaster Relief Fund. With special thanks to the City of Annapolis for permission to use Weather It Together statewide.

2017 End of Session Wrap-Up: Planning & Zoning

This post summarizes the status of various planning and zoning bills that MACo took a position on for the 2017 Regular Session.

Energy Facilities – Consistency With Local Comprehensive Plans: As introduced, HB 1350 / SB 851 would require the Public Service Commission (PSC), upon receipt of an application for a certificate of public convenience and necessity for a generating station or high voltage overhead transmission line, to send the application materials to each local government where the project will be located. Each local government must review the application materials and determine whether the application is consistent with its comprehensive plan per § 1-303 of the Land Use Article. If the local government determines that the application is not consistent, then the PSC may not hold a public hearing or move forward on the application.

As introduced SB 931 / HB 1592 would allow counties and municipalities with zoning authority to enact binding zoning for utility-scale energy generation facilities that need to obtain a certificate of public convenience and necessity from the PSC or have a generation capacity of at least 2 megawatts. Community or small-scale projects are unaffected.

In order for a local government’s zoning to be binding, the local government must engage in an “enhanced” zoning process for each energy generation technology it wishes to zone for – including meeting with appropriate energy developer representatives and incorporating factors identified by the PSC as important to that energy generation technology. For the zoning to be binding, a local government must generate viable project sites and cannot simply ban a particular technology.

The bill also provides a maximum 1-year moratorium while the zoning is being undertaken, and grandfathering for energy projects already in the “pipeline” and local zoning enacted prior to the start of 2017 as long as the zoning complies with the bill’s requirements. The bill allows the PSC to preempt local zoning that complies with the bill when a proposed generation facility is vital to grid integrity and there is no viable alternative site authorized under the zoning. Finally, the Power Plant Research Program must undertake a study to improve notice and communication for siting.

Push Icons-WONMACo Position: MACo supported HB 1350 / SB 851 and SB 931 / HB 1592, citing the disconnect between modern planning and land preservation laws and outdated energy siting laws that do not acknowledge the much larger land footprint needed for current energy technologies, such as solar. MACo noted that Maryland has seen a “land gold rush” as energy companies are optioning thousands of acres, regardless of local government plans and needs.

FINAL STATUS: MACo worked with affected stakeholders on extensive consensus amendments to both HB 1350 and SB 931. The General Assembly passed HB 1350 with amendments. As amended the bill requires the PSC to:

  1. as part of its review of an application for a certificate of public convenience and necessity (CPCN) for an energy generating station 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; and
  2. provide notice of any CPCN application to the executive branch of any affected local government in addition to the local governing body, include a copy of the application to the affected local governments with the notice, and offer to provide a copy of the application to state legislators representing the affected local governments.

In a separate letter, MACo also reiterated 4 other commitments that were made outside of the bill language:

  1. The Power Plant Research Program will conduct an informal study on improving notice and communication between the State, local governments, and energy developers.
  2. MACo, utility scale solar developers, and other interested stakeholders will work together to develop proposed best practices for developers operating in Maryland.
  3. Senate Finance Chair Thomas “Mac” Middleton will hold interim discussions with interested stakeholders on setting protections regarding energy development on lands subject to a State land preservation or conservation easement or in a Rural Legacy Area.
  4. MACo will commit to not introduce legislation directly affecting the PSC’s CPCN process for the next several years unless there is a significant change in the energy development landscape or the provisions of SB 931 are not working as intended.

The Senate Finance Committee heard SB 851 but took no further action on the bill. SB 931 passed the Senate with amendments identical to HB 1350 but was not released by the House Rules and Executive Nominations Committee for a committee assignment. The House Rules and Executive Nominations Committee did not release HB 1592 for a committee assignment.

MACo Testimony on HB 1350

MACo Testimony on SB 851

MACo Testimony on SB 931

NOTE: There is no MACo written testimony on HB 1592

Commitment Letter for HB 1350 / SB 931

Energy Facilities – Right to Solar Farm: HB 863 would authorize the development of solar facilities on up to 3% of any property under the Maryland Agricultural Land Preservation Foundation (MALPF), the Maryland Environmental Trust (MET) and the Rural Legacy Board (RLB). The bill also sets an aggregate cap which prohibits further solar development once 25% of the total land in each program has solar facilities. The bill also removes certain requirements for solar that remain in place for other renewable energy sources, such as the requirement that a renewable energy project must not interfere significantly with agricultural uses of land subject to a MALPF easement.

Push Icons-DEFEATEDMACo Position: MACo opposed the bill, arguing that the bill would upend long-term planning decisions made at both the State and local level relating to sustaining agriculture and associated secondary industries, protecting natural and scenic lands, and preserving unique historic and cultural features. MACo noted that the current environmental and land use planning system can accommodate considered and well-placed solar development.

FINAL STATUS: HB 863 was withdrawn by the bill’s sponsor.

MACo Testimony on HB 863

BAT Septic System Requirements: As introduced, HB 281 / SB 266 would require the use of best available nitrogen removal technology (BAT) septic systems in the watersheds of the Chesapeake Bay, Atlantic Coastal Bay, and nitrogen-impaired bodies of water.

Push Icons-DEFEATEDMACo Position: MACo opposed the bill, arguing that: (1) the science behind the requirement was not established for areas outside of a critical area; and (2) given the limited amount of nitrogen that the BAT mandate would cover and the costs involved, the mandate was neither efficient nor cost-effective. MACo subsequently dropped its opposition to SB 266 as amended.

FINAL STATUS: The House Environment and Transportation Committee heard HB 281 but took no further action on the bill. The Senate passed SB 266 with amendments that: (1) deleted the requirement to install BAT septic systems outside of the Chesapeake and Atlantic Coastal Bays critical areas; (2) codified a funding priority system for the distribution of septic system account monies within the Bay Restoration Fund; and (3) required the Bay Cabinet to: (i) recommend alternative nitrogen reductions to make up for the nitrogen lost by not using BAT septics outside of the critical areas; and (ii) recommend a new prioritization of Bay Restoration Funds based on a determination of the most cost-effective methods for reducing nitrogen in the critical areas and other nitrogen-impaired waters. The House Environment and Transportation Committee heard SB 266 but took no further action on the bill.

MACo Testimony on HB 281

MACo Testimony on SB 266

Forest Conservation Act – Task Force on Forest Conservation Act Offset Policy: As introduced, HB 599 / SB 365 would have:

  1. increased the minimum reforestation rate under Maryland’s Forest Conservation Act (FCA) from ¼ acre for every acre removed to 1 acre for every acre removed;
  2. limited an existing exemption under the FCA for the clearing of public utility rights of way and land for electric generating stations to areas of 1 acre or less of forest; and
  3. authorized the Maryland Department of Natural Resources (DNR) or a local jurisdiction with a forest conservation program to increase the rates under the fee-in-lieu by 20% for each acre where money is contributed in lieu of meeting the program’s reforestation or afforestation requirements.

Push Icons-DEFEATEDMACo Position: MACo opposed the initial bill, citing: (1) the significant hurdles the bill’s 1:1 reforestation ratio would impose on development and redevelopment projects; (2) the increase in utility costs on local governments, businesses, and residents; and (3) the uncertainty and potentially significant cost increases applied to the fee-in-lieu. MACo also questioned the need for the bill based on recent statewide tree canopy cover measurements.

FINAL STATUS: The House Environment and Transportation Committee heard HB 599 but took no further action on the bill. The Senate passed SB 365 with amendments turning the bill into a Task Force on Forest Conservation Act Offset Policy. MACo also opposed the amended version of SB 365, citing the unbalanced membership of the Task Force, the Task Force’s apparently pre-determined outcomes, the limited data the Task Force could consider, and the fact that DNR is currently required to undertake an almost identical study. The House Environment and Transportation Committee heard SB 365 but took no further action on the bill.

MACo Testimony on HB 599

MACo Testimony on SB 365

Forest Conservation Act – Local Authority for More Stringent Provisions: HB 617 / SB 29 clarifies that local governments with planning and zoning may adopt forest conservation thresholds and reforestation requirements that are more stringent than those required under the FCA.

Push Icons-WONMACo Position: MACo supported the bill, advocating that despite the clear intent of the existing FCA language, both counties and municipalities have faced challenges to their authority to actually implement a local program with stricter requirements. MACo cited that a 2015 Maryland Attorney General Opinion and a 2016 letter of advice that both supported the ability of a local government to be more stringent than the base FCA requirements.

FINAL STATUS: The General Assembly passed HB 617 and SB 29 with amendments adding afforestation to the bill’s clarifying language.

MACo Testimony on HB 617

MACo Testimony on SB 29

Building Codes – Assistance for Sprinkler Systems & Other Code Requirements: There were two bills that sought to provide relief for single-family home buyers from the costs of installing sprinkler systems and similar building code mandates. HB 107 would allow the Maryland Department of Housing and Community Development (DHCD) to provide funding assistance through either its Community Development Administration or Down Payment and Settlement Expense Loan Program for a growth-related project not in a Priority Funding Area for the construction or purchase of a newly constructed single-family home or the purchase of a loan for a newly-constructed single-family home if DHCD determines that the cost of compliance with building and fire codes makes it difficult for a low- or moderate-income family to purchase a newly constructed single-family home.

HB 1623 and SB 1103 (identical bills but not listed as cross-filed) would create a Home Sprinkler and Fire Safety Assistance Fund within DHCD. The Fund consists of money appropriated in the State budget – but does not mandate funding. The Fund may award grants to applicants in the order in which they apply to offset costs of installing a sprinkler system. In order to qualify, a homebuyer must be in the process of purchasing a home that:

  1. is a single-family detached home;
  2. is less than 2,500 square feet;
  3. uses well water and is not in an area where public water is provided or where there is a plan to provide public water; and
  4. will be the homebuyer’s primary residence and owner-occupied.

Additionally, the homeowner must fall under the income limits established by the Maryland Mortgage Program.

Push Icons-MORE WORKMACo Position: MACo supported HB 107 with an amendment requiring DHCD , when first establishing a funding program in a county, to consult with a county and modify the program’s criteria to address any concerns of the county. MACo cited the challenges some jurisdictions are facing with housing costs in order to comply with the sprinkler and other building code mandates.

MACo supported HB 1623 and SB 1103, noting the dramatic reduction of building permits for moderate- and low-income housing in rural areas since the passage of the sprinkler system mandate in 2012 (HB 366/SB 602). For homes not on public water, sprinklers can impose significant additional costs for high pressure pumps and water storage tanks.

FINAL STATUS: The House Environment and Transportation Committee heard HB 107 but took no further action on the bill.

The House Rules and Executive Nominations did not release HB 1623 for a committee assignment. The Senate Education, Health, and Environmental Affairs Committee gave SB 1103 an unfavorable report.

MACo Testimony on HB 107

MACo Testimony on SB 1103

NOTE: There is no MACo written testimony on HB 1623

Backyard Gardens – Prohibitions on Restrictions: HB 434 / SB 62 would restrict a local government or homeowner association from prohibiting or limiting the installation or cultivation of a backyard garden on single-family home or townhouse property by an owner or tenant. “Backyard” is defined to mean the portion of a property extending from the rear of the dwelling unit to the end of the plot. The bill’s prohibition also applies to any contract, deed, covenant, rental agreement, or any other legal contract.

Push Icons-DEFEATEDMACo Position: MACo opposed the bill, stating that it needlessly infringed on local land use authority and used vague definitions and terms that would need significant clarification. MACo also question whether the bill’s abrogation of existing contractual restrictions on establishing backyard gardens was constitutional.

FINAL STATUS: The House Environment and Transportation Committee gave HB 434 an unfavorable report. The Senate Education, Health, and Environmental Affairs Committee gave SB 62 an unfavorable report.

MACo Testimony on HB 434

MACo Testimony on SB 62

Development Limitations on Land Adjacent to Certain Historic Properties: HB 583 / SB421 set a series of requirements on property located in a charter or code home rule county that seeks to redevelop or improve but is adjacent to certain “religious property” – property having been continuously operated by a religious institution since at least the 18th century. For such properties, an improvement to the property may only be authorized if:

  1. there is at least a 600-foot buffer between the adjacent property and the religious property;
  2. all capital projects approved by the county for the Consolidated Transportation Plan proximate to the adjacent property have been completed;
  3. if the adjacent property is within or adjacent to a municipality, the municipality and the State Highway Administration (if applicable) have approved the improvement;
  4. the adjacent property owner enters into a covenant with the owner of a religious property to allow any bells or chimes on the religious property to ring in perpetuity in the same manner as they have previously rung; and
  5. the adjacent property owner is financially responsible for any improvement that the religious property must make based on the improvements to the adjacent property.

Push Icons-DEFEATEDMACo Position: MACo opposed the bill for unnecessarily infringing on local land use autonomy, creating an overbroad remedy that would apply to many properties throughout the state, and likely making it impossible for adjacent property in urban areas from redeveloping or improving due to the impossibility of complying with the 600-foot buffer requirement.

FINAL STATUS: The House Environment and Transportation Committee canceled the hearing for HB 583 and took no further action. The Senate Education, Health, and Environmental Affairs Committee heard SB 421 but took no further action on the bill.

MACo Testimony on SB 421

NOTE: There is no MACo written testimony for HB 583.

Roadside Tree Preservation and Maintenance: HB 1118 requires DNR to adopt regulations governing: (1) the planting, maintenance, and protection of any roadside tree; and (2) required notice to the appropriate State or local government agency about the need, if necessary, to remediate a hazard caused by the removal of a roadside tree. DNR may grant a permit for the maintenance or removal of a roadside tree in extremely limited cases. The tree must be: (1) a hazard or danger to property, public safety, or health; or (2) dead, dying, or deteriorating. DNR may not grant a roadside tree permit to improve general aesthetics of the right-of-way or an adjacent property or for the convenience of an adjacent property owner or resident.

An applicant for a permit for a program of general tree care must also demonstrate to the satisfaction of DNR that the program includes reasonable standards and procedures to protect and preserve roadside trees. Finally, a person who removes a roadside tree must replace the tree with a species and in a location and timeframe approved by the permit.

Push Icons-IMPROVEDMACo Position: MACo opposed the bill, noting that DNR already has extensive and longstanding regulations in place to govern tree care. The bill would adversely affect local government tree programs and may increase costs for tree replacements. After discussion with the bill’s sponsor, MACo offered several amendments and subsequently withdrew its opposition when the House adopted the amendments.

FINAL STATUS: The House passed the bill with the MACo amendments, which clarified that DNR may issue a permit to maintain or remove roadside trees: (1) to enable necessary improvements, repairs, or expansion of conduits, rights-of-way, roadways, or other infrastructure; (2) to enable development that meets local zoning and land use requirements; or (3) in the discretion of DNR, consistent with its roadside tree program. The Senate Education, Health, and Environmental Affairs Committee heard the HB 1118 but took no further action on the bill.

MACo Testimony on HB 1118

Development Tiers – Residential Major Subdivisions in Tier III and Tier IV Areas: HB 1355 would allow local jurisdiction may authorize a residential major subdivision served by septic systems, community systems, or shared systems in a Tier III area if: (1) the development rights for the property existed on December 1, 2012; (2) at least 10% of the remaining portion of the jurisdiction’s Tier III area is protected in specified ways; and (3) at least 25% of the remaining portion of the jurisdiction’s total land area is protected in specified ways. The same provisions apply for a Tier IV area but the protection thresholds are 20% within Tier IV and 30% for the remaining land outside the Tier.

Push Icons-NOT IDEALMACo Position: MACo supported the bill with an amendment to have the bill’s tier provisions only apply in a county where the local governing body has formally adopted the provisions of § 9-206(f)(2) and (3) into a local ordinance. This allows counties the option of whether to utilize the bill’s provisions rather than mandate that all counties be subject to the provisions. MACo also noted that the bill would provide an alternative under the Tier system to address issues of lost development rights in rural areas while not repealing the Tiers.

FINAL STATUS: The House Environment and Transportation Committee gave an unfavorable report to HB 1355.

MACo Testimony on HB 1355

Temporary Family Health Care Structures – Local Permits: SB 532 would have required a local legislative body to acknowledge a temporary family health care structure as a permitted accessory use in areas with single-family detached dwellings if the structure is used by a family member for the care of a related mentally or physically impaired individual. The legislative body may not require a caregiver to obtain a special use permit for the structure or impose any zoning law on the structure (subject to certain exceptions).

The bill also defines the size, design, and requirements the structure must meet and limits a local government to charging a $100 application fee and a $50 annual renewal fee. Finally, the bill exempts the services provided by the caregiver from being included as an “assisted living program” under the Health – General Article.

Push Icons-DEFEATEDMACo Position: MACo opposed the bill, arguing that while well-intentioned the bill would impose a “one size fits all” solution in all communities, regardless of public safety or hygiene concerns or neighborhood characteristics.

FINAL STATUS: The Senate Finance Committee heard SB 532 but took no further action on the bill.

MACo Testimony on SB 532

Click here for a round-up of the wrap-ups for all policy areas

Hogan Reappointment of Two to Cabinet Sets Up Legal Fight With Assembly

Setting up a potential constitutional clash, Governor Larry Hogan reappointed two officials to his Cabinet on Wednesday who failed to make it through the confirmation process during the General Assembly session that ended Monday, April 10.

Hogan named Dennis R. Schrader to head the Department of Health and Mental Hygiene despite withdrawing his name after a dispute with Maryland Senate Democrats.

He also announced he would keep Wendi Peters, whose nomination was turned down by the Senate Executive Nominations Committee but withdrawn before full Senate action, as acting planning secretary.

According to The Baltimore Sun,

The governor’s office contends that Hogan, who had signaled his intention to reappoint the officials, is within his rights under the law. The Democratic leaders of the Senate contend that Hogan is violating the Maryland Constitution.

“The advice-and-consent process is a fundamental tenet of American democracy and the separation of powers,” said Sen. Bill Ferguson, chairman of the Executive Nominations Committee.

But Hogan spokesman Doug Mayer countered by saying that the Senate’s nomination process this year was “very political” and asserted the governor’s power to appoint whom he wants.

“The governor 100 percent has the power to withdraw and reappoint,” Mayer said.

The reppointments came just one day after the Republican governor and the Democratic leaders of the General Assembly praised the bipartisan accomplishments of the legislative session. Hogan’s actions raise questions about whether the Senate can block any individual from exercising the powers of a high state office if the governor is determined to appoint that person. If not resolved before January, the dispute could hang over any pending Hogan appointments that require confirmation.

Ferguson, a Baltimore Democrat, said Hogan’s actions put the state and its citizens in jeopardy.

“The validity of the acting secretaries’ power is in question as a result of the governor’s decision because the governor has willfully bypassed the constitution,” Ferguson said. In the case of the health department, he said, citizens could go to court to challenge enforcement decisions on the grounds that the secretary doesn’t hold the office legally.

Seeing a confrontation looming, the legislature adopted budget language this year to bar the use of state funds to pay the salaries of secretaries or acting secretaries who were nominated during the session but who did not win confirmation before their names were withdrawn. That provision takes effect July 1.

“We think that’s unconstitutional, and we think they know it,” Mayer said.

A letter of advice dated March 15 from the state attorney general’s office says that in Peters’ case, “nothing prevents the governor from choosing as his recess appointee the person whose nomination had been submitted but then withdrawn” because she had not been rejected by the full Senate.

However, the letter also says the legislature may use the budget bill to block the payment of the salary of someone appointed after the session whom the committee had rejected and whose name had been withdrawn — as in the case of Peters. Lawmakers are waiting for answers to a request for an opinion on issues concerning Schrader.

Mayer said Hogan is relying on the advice of his own general counsel rather than the opinion of the office headed by Democratic Attorney General Brian E. Frosh.

Read the full article for more information.

The Last Day: How Did Counties Fare?

With several issues coming down to the final day of the 2017 legislative session, here’s a quick wrap-up of their final disposition. As is almost always the case, the final results are a mixed bag of successes and disappointments.

ENERGY SITING BILL PASSESHB 1350 included a final compromise to grant counties greater input into the certificate process to approve large-scale energy generation facilities.

ATTORNEYS FEE LEGISLATION DEFEATED ON SENATE FLOORSB 705, a bill that spent most of the last three weeks of the session on the Senate floor, was defeated after several more “special order” motions to delay its consideration. MACo had opposed the bill, citing its broad effects and costs from lawsuits well beyond the targeted “access to justice” sphere.

NEXT-GEN 911 COMMISSION AND FLEXIBILITY BILL DIES IN HOUSE COMMITTEESB 466, an amended-down version of legislation to advance Maryland 9-1-1 call centers toward “next generation” technology failed to receive a vote in its House Committee, and was defeated. MACo had supported the modest bill, but questions kept the Health and Government Operations Committee from taking the bill up on Monday.

ELECTION SCANNERS COST SPLIT FAILS – A late session effort (SB 406) to codify the 50/50 state/county cost split passed the House, but failed to progress through its final procedural steps and was defeated as time ran out.

STORMWATER COMPROMISE STALLS IN SENATEHB 656 was a bill MACo initially opposed, but committed to lengthy negotiations and developed into a compromise to fairly apply government stormwater charges on properties owned by other governments. The House approved the compromise, but the Senate was unable to gather the support from the dually assigned committees, and the bill died. The framework of the bill, however, may offer a roadmap for county/municipal agreements in the future, even without passage.

MACo Energy Siting Initiative Poised For Final Passage

The Senate Finance Committee gave a favorable report to HB 1350 on April 6, which the House had amended to become its version of MACo’s energy siting Legislative Initiative, SB 931. HB 1350 will need to pass second and third-reader votes in the Senate prior to the General Assembly adjourning Sine Die on Monday, April 10. SB 931 has already passed the Senate unanimously (47-0) and it is expected HB 1350 will also pass with no issues.

MACo adopted the siting of energy generation facilities as a 2017 Legislative  Initiative in response to concerns from both rural and urban counties who are seeing large-scale energy projects being proposed in sensitive agricultural, historic, or environmental areas. Going forward, MACo believes the bill will ensure that the Maryland Public Service Commission (PSC) will properly weigh local land use concerns when deciding whether to grant an energy generating station a certificate of public convenience and necessity (CPCN) and encourage better communication and outreach practices between energy developers and local governments.

As amended by the House, HB 1350 would:

  1. require the PSC, as part of its review of an application for a CPCN for an energy generating station 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
  2. require the PSC to provide notice of any CPCN application to the executive branch of any affected local government in addition to the local governing body, include a copy of the application to the affected local governments with the notice, and offer to provide a copy of the application to state legislators representing the affected local governments

In a separate letter to the Finance Committee, MACo also reiterated 4 other commitments that were made outside of the bill language:

  1. The Power Plant Research Program will conduct an informal study on improving notice and communication between the State, local governments, and energy developers.
  2. MACo, utility scale solar developers, and other interested stakeholders will work together to develop proposed best practices for developers operating in Maryland.
  3. Senate Finance Chair Thomas “Mac” Middleton will hold interim discussions with interested stakeholders on setting protections regarding energy development on lands subject to a State land preservation or conservation easement or in a Rural Legacy Area.
  4. MACo will commit to not introduce legislation directly affecting the PSC’s CPCN process for the next several years unless there is a significant change in the energy development landscape or the provisions of SB 931 [or HB 1350] are not working as intended.

Senator John Astle sponsored SB 931. Delegate April Rose sponsored HB 1350.

Useful Links

HB 1350 of 2017

SB 931 of 2017

Commitment Letter for SB 931

Prior Conduit Street Coverage on Energy Siting

PSC Embarks on 200 MegaWatt Community Solar Pilot Program

A Frederick News-Post article (2017-04-06) reported that the Maryland Public Service Commission (PSC) is starting a new three-year pilot program designed to add nearly 200 megawatts of community solar projects. The article stated that the PSC plans to accept applications on April 10. From the article:

“We’re very hopeful to see a range of projects,” [PSC senior advisor Jon] Kucskar said.

Thirty percent of the projects are designated to improve access for low- and moderate-income households. A percentage has also been set aside for small solar projects and ones that will be built on brownfields. …

“It’s a pretty robust pilot,” [Potomac Edison spokesman Todd] Meyers said.

Community solar could take several forms. A church could install an array and sell credits to parishioners or donate them to charity to help low- and moderate-income households, or a group of neighbors could purchase a lot and credit the power, Kucskar said as hypothetical examples.

Industrial and commercial projects may make up a majority of the available megawatts, Kucskar said. No project can exceed 2 megawatts.

The commission hopes to see a range of projects, because it will supply better data on the cost and benefits of community solar, the technical impacts and low-income access, to name a few, Kucskar said. A report is expected to be released in July 2019, he said.

Useful Links

PSC Website

2017 MSBA Land Use Institute Tackles Takings, Medical Cannabis, Recent Land Use Case Law

The Real Property Section of the Maryland State Bar Association (MSBA) is hosting its 2017 Land Use Institute on May 5, from 8:15 AM – 4:15 PM at the Columbia Sheraton (10207, Wincopin Circle, Columbia, MD 21044). From the event webpage:

8:15 a.m. – 9:00 a.m.
Check-in and Continental Breakfast

9:00 a.m.
Opening & Welcome

9:10 a.m.
Discussion of Recent Maryland Land Use Appellate Opinions
Hon. Glenn T. Harrell, Jr., Maryland Court of Appeals, (ret.)
Hon. Lynne A. Battaglia, Maryland Court of Appeals, (ret.)
Hon. James A. Kenney, III, Maryland Court of Special Appeals, (ret.)
Hon. Donald E. Beachley, Maryland Court of Special Appeals

10:05 a.m.
Q & A with the Judges panel

10:15 a.m.
Break

10:30 a.m.
Challenging or Defending Land Use Related Decisions, Development Rights and Responsibilities Agreements after Cleanwater Linganore v. Frederick County
Sagar Williams, Esq., Law Office of Sager A. Williams, Jr.
William Wantz, Esq.
Joseph Stevens, Esq., Stevens Palmer, LLC

11:30 a.m.
Greatest Hits From the Supremes: New Takings and Wetlands Cases in the Supreme Court
Gus Bauman, Esq., Beveridge & Diamond, PC

12:20 p.m.
Lunch

1:30 p.m.
Tales from the Swamp – New State Environmental Initiatives and Issues Important to Land Use
Ben Grumbles, Secretary of Maryland Department of the Environment

2:00 p.m.
The Latest in Subdivision and Other Very Scary Tales
Jeffrey Zyontz, Esq., Senior Legislative Analyst, Montgomery County Council

3:00 p.m.
Break

3:15 p.m.
Land Use Regulation of Medical Canabis
Joseph A. Stevens, Esq., Stevens Palmer, LLC
Joseph F. Devlin, Esq., Director, Council, Baradel, Kosmerl & Nolan, P.A.
Stan Kosick, Senior Planner for Queen Anne’s County

3:45 p.m.
Legislative Roundup – Summary of Land Use Legislation in 2017 Legislative Session
Lori Graf, CEO, Maryland Building Industry Association

4:15 p.m.
Adjourn

CLE credits will be offered for both attorneys and planners. Non-MSBA members are welcome to participate. Depending on your MSBA membership status and whether you want a hard-copy of the materials, attendance costs range from $185 to $255.

Useful Links

2017 Land Use Institute Webpage