Counties & Energy Companies Offer Perspectives on Energy Facility Preemption

A lengthy Baltimore Sun article (2016-10-15) provided an overview of the energy facility siting and local land use preemption issue that will be examined during the 2017 Session. As previously reported on Conduit Street, MACo has adopted the siting of “dispersed” energy generation facilities as one of its 2017 Legislative Initiatives. Unlike traditional power plants like coal, oil, or nuclear, these new types of facilities can be placed on a variety of farmland or open space with little additional infrastructure and include technologies such as wind, solar, gasification, or small incinerators. The article noted the explosive growth of solar facilities in particular in the last several years:

Energy companies, lured by a state policy that encourages renewable electricity generation and riding a larger industry boom, are flocking to Maryland farmland to build massive solar installations. Developers proposed 11,000 new solar projects in the state last year, more than twice as many as in 2014….

Currently, the Public Service Commission (PSC) is the state agency primarily responsible for the siting of energy generation facilities above a certain generation size. While the PSC has not yet taken a position on MACo’s proposal, the article cited a former PSC chairman, who argued that the authority should remain with the State. But given the new types of technologies involved, county officials and MACo are concerned that local comprehensive planning goals and the nature of a community can be arbitrarily upset if local zoning, preservation easements, and environmental requirements are ignored:

“The reason the PSC is given the power to make those decisions is that many times, local officials, if not their constituents, take the position, ‘It shouldn’t be here. It should be in someone else’s backyard,'” said Russell Frisby, who led the [PSC] from 1995 to 1998. “The authority really should remain with the Public Service Commission.”

But in rural communities that have already seen housing developments splinter and absorb farmland, solar farms are viewed as a new threat. …

“I don’t think it’s right that the PSC can just come in and say, ‘Guess what? We’ve just approved 48 500-foot wind turbines in your county,’ and plunk it down,” [Talbot County Councilman Dirck Bartlett]  said. “What that would do, without any local control, could really reshape an area forever.”

The article also discussed the competing challenges posed to individual farmers – a potentially lucrative and easy source of income during a time when they may be struggling versus keeping agriculture a viable industry in the state.

Some farmers weren’t interested — anything that breaks up open cropland makes farming more difficult and more expensive. …

Agricultural land is ideal for the energy projects because it is wide and flat, and already cleared, said Sebastien Houde, an assistant professor of agricultural and resource economics at the University of Maryland, College Park. And solar developers know they can match or exceed farmers’ income per acre, Houde said.

The article summarized two “flashpoint” cases in Kent and Allegany Counties that led to the broader discussion of energy facility siting:

Kent County officials designated a commercial and industrial zone years ago for renewable energy projects and other new industries. But at least one solar developer is looking outside it. Now the county is leading a fight against the [PSC’s] power. …

The problem for Kent officials and residents isn’t that it’s a massive solar farm — it’s that it’s not in the right place. …

In Allegany, Dan’s Mountain Wind Force wants to build 17 wind turbines along the county’s highest ridge.

The group, a subsidiary of Laurel Renewable Partners LLC in Greensburg, Pa., originally planned more, but scaled back amid eight years of back-and-forth with Allegany officials concerned about impacts to scenic mountain vistas and the county’s 911 communications antenna. …

The developer is petitioning the commission for a permit overruling local rules, as it appeals the zoning decision in court.

In filings with the commission, Allegany officials say they don’t necessarily even oppose the wind project. But they “vehemently” object to what a lawyer for the county calls “efforts to circumvent Allegany County’s land use and zoning authority.”

MACo Legal and Policy Counsel Les Knapp stressed that counties generally support renewable energy and other types of “dispersed” energy generation technology like gasification, but that they should not arbitrarily disrupt long term county plans for growth and land preservation. Instead they should be part of that long term thought-out framework:

The Maryland Association of Counties is preparing policy proposals for the 2017 legislative session in Annapolis aimed at settling such conflicts.

“I think what we would look for is a simple acknowledgment that these types of facilities should be subject to local zoning,” said Les Knapp, legal and policy council for MACo. “Their location should be considered and in line with how counties are growing and developing.”

Reaction from energy companies has been mixed to the MACo proposal and county concerns and the article summarized several viewpoints:

David Friend, Laurel’s CEO, says the state authority is key because any change or extra hurdle imposed at the county level could chill the development of new projects.

“These development processes take a long time,” he said. “If they change the rules, you’ll never build another power station or power line in Maryland again.” [Author’s Note: MACo is not questioning the authority of the state to cite traditional large-scale power plants or transmission lines.] …

Solar industry officials said they want to cooperate with local communities as they seize new opportunities.

“The industry is really willing to work with the counties,” said Dana Sleeper, executive director of the Maryland Solar Energy Industries Association. “Folks get a little bit scared when there’s something new.”

The article also provided an overview of New Jersey’s recent incentive-based approach to encourage solar development on brownfields.

Useful Links

Prior Conduit Street Coverage

Controversial “Standing” Bill Receives Legislative Briefing

A panel of local government representatives voiced their objections over proposed legislation that would alter the requirements for standing in comprehensive zoning cases during a briefing by the House Environment and Transportation Committee’s Land Use and Ethics Subcommittee on October 18. “Standing” is the legal right to bring and maintain a lawsuit.

The briefing focused on failed legislation (HB 243/SB 166) during the 2016 Session. As previously reported on Conduit Street, MACo opposed the legislation. The legislation was introduced in response to a recent Maryland Court of Appeals holding, Anne Arundel County, Maryland v. Steve Bell (filed April 21, 2015).

At the briefing, MACo Legal and Policy Counsel Les Knapp presented an overview of the two types of standing at issue (taxpayer and property owner) and asserted that the Bell decision properly clarified which form of standing applied to comprehensive rezoning. From MACo’s testimony:

In the Bell decision, the Court correctly concluded from previous decisions that taxpayer standing should apply to primarily legislative land use actions (such as comprehensive zoning), while property owner standing should apply to administrative, executive, or quasi-judicial land use actions (such as piecemeal rezonings, special exceptions, and nonconforming uses). …

HB 243 would override the well-reasoned arguments of the Bell decision and instead require property owner standing for comprehensive rezoning decisions. This would create serious legal and policy consequences….

Knapp also briefly noted the potential consequences should the legislation pass, including: (1) an increase in plaintiffs and rezoning litigation; (2) a slowing or stopping of the comprehensive rezoning process; (3) additional challenges to Smart Growth-friendly redevelopment and revitalization projects; (4) whether challenges under the legislation were severable; and (5) forcing property owners that support a rezoning into litigation to protect their own property rights.

Also testifying in opposition to the proposed standing legislation were Maryland Municipal League, homebuilder, and commercial builder representatives. Representatives from the Chesapeake Bay Foundation, 1,000 Friends of Maryland, and several plaintiff law firms testified in support of the legislation.

Useful Links

HB 243 / SB 166 of 2016

Anne Arundel County v. Bell Case

Prior Conduit Street Coverage of Standing Issue

Board of Public Works Approves $17.7 M in Rural Legacy Grants

A Maryland Department of Natural Resources press release (2016-10-19) announced that the Board of Public Works unanimously approved 15 Rural Legacy Program grants across the state. The grants total $17,663,385 and would preserve 4,615 acres of farmland, forests and open space. From the press release:

“These grants provide a cost-effective way to permanently conserve culturally, ecologically and historically important parcels of land in our state,” said Natural Resources Secretary Mark Belton. “Protecting and preserving these important and irreplaceable tracts of land helps us retain our agricultural and rural character, and aids our efforts to meet our Chesapeake Bay restoration commitments and goals.”

Established in 1997, the Rural Legacy Program is designed to preserve large tracts of productive and valuable agricultural and forested lands that contain exceptional features by acting through local government and private land trust sponsors, which in turn work with willing property owners in 31 locally-designated rural areas situated in every county.

To date, the public-private partnership program has permanently protected 87,811 acres through conservation easements.

The press release also discussed the passage of HB 462 of 2016, which stabilized and increased funding for various land preservation programs, including Rural Legacy and Program Open Space, by $60 million over the next two years.  (MACo supported the final version of HB 462).

Useful Links

Rural Legacy Website

HB 462 of 2016

Stakeholders Debate Local Preemption, Other Energy Facility Issues

MACo has been participating in a series of  “Maryland Land and Energy Caucus” meetings that seek to address a variety of issues related to renewable energy and the siting of energy generation facilities. Besides MACo, Caucus participants include representatives from county governments, the solar and wind industries, and the environmental, agriculture, open space, and land and historical preservation communities.

As previously reported on Conduit Street, MACo seeks to address local zoning and land use preemption by “dispersed” energy generation facilities that can be placed on agricultural lands or open space as one of its 2017 Legislative Initiatives.

Issues discussed by the Caucus include local government preemption. industry needs and siting requirements, cultural requirements, agricultural concerns, and potential incentives for renewable development on brownfields and other targeted areas.

The Caucus has previously met on on October 7 and 12. The next meeting of the Caucus will be November 1. For further information, please contact Les Knapp at 410.269.0043 or

Useful Links

MACo 2017 Legislative Initiatives

Prior Conduit Street Coverage of Energy Preemption Issues

MHT Can Help Protect Your Historic Structures From Natural Hazards

A Maryland Planning Blog article (2016-10-05) highlighted the Maryland Historical Trust’s (MHT’s) Cultural Resources Hazard Mitigation Planning Program, which helps local governments integrating their historical places into hazard mitigation plans and planning activities. From the article:

The program provides technical assistance on a variety of topics related to floodplain management, hazard mitigation planning and actions, disaster response and recovery, and climate change. Training is also offered through static modules on the Maryland Historical Trust’s website and live presentations on how to conduct a risk assessment and how to complete other components necessary for developing a cultural resources-specific component for a local hazard mitigation plan. Training can be tailored to address an audience of historic preservationists and planners or that of emergency managers and floodplain managers. Additional training modules will be added to the website soon.

The article also noted the availability of architectural and flood-hazard data for specific historic buildings and sites through a set of survey tools:

Recognizing that the first step to protecting historic properties is identifying what properties are historic, the Maryland Historical Trust developed an approach to surveying historic resources in hazard-prone areas, which involves collecting architectural and flood-hazard related data on specific historic buildings using the Architectural Survey Form for Hazard Mitigation Planning, and when appropriate, documenting the area surrounding the vulnerable resources as a survey district. Using a single Maryland Inventory of Historic Properties (MIHP) form, the preparer can look at the survey area as a cohesive whole with a shared history: a survey district. All forms and documentation that meet the Standards & Guidelines for Architectural and Historical Investigations in Maryland are submitted to the Trust for inclusion in the Maryland Inventory of Historic Properties. The information can be used for mitigation planning and developing mitigation projects, or as a basis for conducting additional, more detailed architectural and historical investigations in a community at a later date. Either way, the shared approach is a win for mitigation and a win for increasing our knowledge of under-documented historic communities in Maryland.

For more information on the Cultural Resources Hazard Mitigation Planning Program, please contact Jen Sparenberg at (410) 514-7641 and for more information on Survey Districts, please contact Heather Barrett at (410) 514-7642.

Useful Links

MHT Website

Cultural Resources Hazards Mitigation Planning Webpage

Hogan Appoints Patient Advocate to Medical Cannabis Commission

A Washington Post article (2016-10-07) reported that Maryland Governor Lawrence (Larry) Hogan has appointed a new member to the Natalie M. LaPrade Maryland Medical Cannabis Commission. Patient advocate Saundra Washington will replace former Commissioner Deborah Miran. The appointment comes as the Commission is facing a lawsuit challenging the Commission’s decision to ensure geographic diversity when awarding preliminary grower and processor licenses and criticism from the Maryland General Assembly’s Legislative Black Caucus for not considering racial diversity in the licensing process. From the article:

The governor selected Saundra Washington, an African American cancer survivor and director of a Maryland nonprofit group that provides food and charity to people in need, after consulting with the General Assembly’s Legislative Black Caucus.

Del. Cheryl D. Glenn (D-Baltimore), the caucus’s president, said Washington wasn’t the group’s recommendation. But she welcomed additional diversity to the regulatory body, which previously had only one African American.

Glenn, a strong proponent of medical marijuana, said she will push legislation in the upcoming 2017 session to overhaul the structure of the commission, which she and other critics say is not suited to oversee a complex, multimillion-dollar industry of growers, processors and dispensers.


Sustainable Maryland Workshops: Using Your Data to Make Good Decisions

Sustainable Maryland is offering a leadership training workshop for local government officials on how to collect and use data to make informed land use and sustainability decisions and subsequently track program progress and outcomes. The workshop will be held in mid-November at three different locations in the state. Registration costs $35.00 and includes breakfast, lunch, parking, and program materials.  MACo is a co-sponsor of this event. From a Sustainable Maryland email announcement:

Leadership Training Workshops on Sustainability Metrics: Measuring What Matters 


You’ve heard of “big data” and the importance of measuring your community’s progress, but how does that practically work at the local level? Come learn about how you can start harnessing the data that flows through your community’s infrastructure and programs and translate it into meaningful metrics.

Our upcoming Leadership Training workshops will provide you with:

  • Introduction to Data Collection:
    • the importance of tracking data for process improvement, attracting funders, and justifying programs to residents
    • the importance of knowing your audience and your goals
    • the importance of collecting different types of data. Qualitative vs. Quantitative
    • examples of communities who have data tracking programs or processes.
  • Tools and Resources: A review of data tracking tools and resources that communities can easily apply to their programs. Various topic areas will include: Energy, Stormwater, Tree Cover, Waste, Finances, Volunteers.
  • Visualizing Data: The importance of storytelling, infographics, social media, and transparency.

3 DATES / 3 LOCATIONSSAME GREAT PROGRAM! Choose the most convenient date/location:

Monday, November 14, 9:00am – 4:00pm

Location: Cambridge Public Safety Building, Cambridge


Wednesday, November 16, 9:00am – 4:00pm

Location: Hyattsville City Hall, Hyattsville


Thursday, November 17, 9:00am – 4:00pm

Location: University System of Maryland at Hagerstown


A detailed agenda will be provided on October 24. If you have any questions, contact Mike Hunninghake at or 301-405-7956.

Useful Links

Sustainable Maryland Website

Barr to Hogan: Hear Counties Voices, Loud and Clear

After completing an unprecedented tour and meeting with elected officials from all 24 counties across the state before the Summer Conference, MACo President John Barr raised this accomplishment with Governor Larry Hogan at the Summer Conference. “I’d like to get you a letter, summing up what we heard in these visits,” Commissioner Barr offered, and the Governor expressed interest.

In President Barr’s letter, he raises a variety of issues that came up during the county visits. A widespread focus on transportation and infrastructure was a universal theme:

Across the state, this same anecdote came up time and time again – counties everywhere simply cannot keep up with proper maintenance at these historically low funding levels.

Barr’s letter also talks about cross-border effects of statewide policies — recognizing that nearly all parts of Maryland are close to a state border.

As we traveled to visit the manor corners of this beautiful state, it became very clear to me how important our state geography is. Our small state stretches across lengthy state borders – and that matters substantially for policy issues here at home.

In Washington County, we are very aware of cross-border pressures that face our businesses and services. At its narrow point, the county spans less than two miles from the West Virginia and Pennsylvania borders. Employers, homebuilders, and civic organizations must routinely be aware of out-of-state competition as they make decisions in the area.

These issues arise in every part of Maryland. We compete for residents and businesses with surrounding states who offer a dramatically different mix of taxes, regulations, labor standards, and
quality-of-life offerings. We are uniformly proud of Maryland, and want to see the state succeed.

Barr closes with encouragement on the benefits of open communication, and his own experience as MACo President:

It has been a great honor, and a personal pleasure, to serve as MACo president this year. One of the great privileges that has afforded me has been an avenue to get to know you, and to seize on ways to work together for all Marylanders. I know that partnership – both at the personal level, and at the larger state-and-county level – will mean better outcomes for the residents we all represent.

Read John Barr’s letter, as MACo President, to Governor Hogan.

NACo October 26 Webinar: Is Your County Solar Ready? Strategies for Removing Local Barriers to Solar Energy

naco logoThe National Association of Counties (NAC0) will host a webinar “Is Your County Solar Ready? Strategies for Removing Local Barriers to Solar Energy” on Wednesday, October 26, 2016 at 2 p.m.

Despite rapid growth in solar energy markets across the country, solar is still often limited by local barriers in zoning, permitting and installation. Local government ‘soft costs’ –the non-hardware and administrative costs of solar—and ‘red tape’ ultimately raise the price of solar energy systems, which is passed on to residents and businesses.

In an effort to become more solar-friendly, many counties are seeking to improve and streamline their local solar policies and processes. Join us for this webinar to dive into best practice examples of strategies and solutions currently being implemented in counties across the country. Participants will also learn more about the SolSmart program as an available resource for counties to gain no-cost technical assistance in removing local barriers to solar and an opportunity to receive high-profile, national recognition.

For more information, please contact Jack Morgan.

Click here to register.

MACo Adopts 2017 Legislative Initiatives

The MACo Legislative Committee adopted its four legislative initiatives for the 2017 session during its meeting on September 21. The four topics, have all gathered broad interest and discussion across the state during the last year.

28 different initiative proposals were received from a wide swath of county officials and organizations. MACo’s Initiatives Committee met through the summer to recommend a slate of no more than four items, consistent with the MACo by-laws. The limited number of initiatives is designed to keep the Association’s focus limited — but does not preclude involvement and effort on behalf of other important issues.


2017 Legislative Initiatives

Re-invest In Local Roads, Bridges, and Infrastructure – Recession-driven cost shifts have left local roadways lacking proper maintenance, bridges in dire need, and other public infrastructure neglected. Re-investing in infrastructure – a call being heard at every level of government – is good for Maryland jobs, business attractiveness, and quality of life across the state. Meanwhile, funding for school maintenance, water delivery systems, and public safety centers all lack predictable centralized funding commitments. MACo calls on state leaders to take action in 2017:

* Approve meaningful new FY 2018 funding for restoring Highway User Revenues – using the fair, statewide formula used for decades

* Enact a phased-in restoration of the historic 30% local share of state transportation revenues – enhancing safety and road quality for motorists everywhere

* Document and assess the state of public infrastructure across Maryland – assessing the needs and reliable revenue sources targeted for each area of service

Strong and Smart State Funding for School Construction – The State’s commitment to school construction funding needs to remain strong and smart – to best serve the modern needs of our schoolchildren, educators, and communities. Strong state funding will recognize modern cost factors as we achieve new environmental and energy standards, satisfy heightened needs for technology, ensure student safety, fulfill community resource needs, and mesh with evolving teaching methods. Smart state funding will provide flexibility for county governments seeking cost-effective solutions to meeting student and community school construction needs. A smarter state-county school construction program will reduce unnecessary regulation, revise processes to work alongside county budget decisions, provide a county voice in state school construction funding decisions, promote statewide and regional efficiencies, and provide a meaningful opportunity to pursue alternative financing for school construction.

Energy Facility Siting – For decades, the state has exercised a very narrow pre-emption of local planning and zoning authority for major power plants, grounded in the need for the larger power grid to receive ample power supply. Recent cases before the state’s Public Service Commission threaten to dramatically widen that principle, applying it to virtually any generation facility, regardless of its size or importance to the regional power grid. A new generation of power facilities – from solar farms to alternative technologies – could be freed up to ignore local zoning and oversight. This decision threatens local land use control — and the important rights of communities to guide their own historic, agricultural, and residential character.

Balancing Release of Police Body Camera Video – As governments work to implement sensible police body camera policies, the State should clarify how body camera footage is treated under Maryland’s Public Information Act (PIA). The PIA was largely created to handle paper documents and only recently updated to better handle static electronic records. However, the PIA still does not address the practical, technical, and privacy challenges facing a local government from potential requests of hundreds of hours of accumulated body camera video, all of which must be subjected to attorney review and redaction where appropriate. In light of such challenges, MACo supports legislation to strike a reasonable balance between making affected people having proper access to the footage while preventing overbroad, abusive, or invasive requests.


In the weeks ahead, Conduit Street will feature more detail on the policy and legislative importance of each of these major topics.