Conduit Street Podcast: Headlines & Happenings – Education, #NG911, Goucher Poll, Disaster Response, & Small Cells

On the latest episode of the Conduit Street Podcast, Michael Sanderson and Kevin Kinnally discuss the latest news and happenings around Maryland.

Listen in to hear updates on the [Kirwan] Commission on Innovation and Excellence in Education, the Commission to Advance Next Generation 9-1-1 Across Maryland, interesting tidbits from the most recent Goucher Poll, mutual aid in the wake of natural disasters, and the Federal Communications Commission’s (FCC)proposed order intended to streamline and reduce industry’s costs for the deployment of small cells in local right of ways at the expense of local authority.

Listen here:

MACo has made the podcast available through both iTunes and Google Play Music by searching Conduit Street Podcast. You can also listen on our Conduit Street blog with a recap and link to the podcast.

You can listen to previous episodes of the Conduit Street Podcast on our website.

Useful Links

Previous Conduit Street Coverage: Conduit Street Podcast: Keeping up with Kirwan

Previous Conduit Street Coverage: Kirwan Commission Aims to Revamp “At-Risk” Funding Formulas

Previous Conduit Street Coverage: Commission to Advance #NG911 Holds First Meeting

Previous Conduit Street Coverage: Questions About #NG9-1-1? MACo Has You Covered

Previous Conduit Street Coverage: MACo Submits Concerns to FCC Over Small Cell Order

Let the Sunshine In – Register Now for MACo Solar Symposium

MACo, in partnership with the Sierra Club of Maryland and Solar United Neighbors, is offering a free one-day symposium to county officials (elected and non-elected) on the benefits and challenges of siting community and utility-scale solar generation facilities within your county.

The symposium, titled Let the Sunshine In: Solar Siting in Maryland, will provide an overview of solar’s role in Maryland, including existing laws; offer perspectives from different stakeholders, such as agriculture, community/health, and the environmental community; discuss local zoning and taxation best practices; and showcase several solar “success stories.” The symposium will be concluded with an open facilitated discussion where attendees can raise solar-related issues and questions important to their local jurisdiction.

 

Let the Sunshine In: Solar Siting in Maryland

  • Date: Thursday, October 11, 2018
  • Time: 10:00 am – 3:45 pm (morning coffee and lunch provided)
  • Location: North Laurel Community Center, 9411 Whiskey Bottom Road, Laurel, MD 20723
  • Eligible Attendees: County elected and non-elected officials
  • Cost: Free but registration is required by October 3

Session Objectives

  • Provide key information on factors affecting solar energy development in Maryland relevant to the needs and policy decisions of county officials
  • Present examples of Best Practices in solar development
  • Offer opportunity for dialogue among county officials and experts engaged in specific technical and policy areas relevant to solar development

Space is limited and registrations are accepted on a first come, first serve basis. A full agenda will be released shortly. For further questions about the symposium, please contact Les Knapp at lknapp@mdcounites.org or 410.269.0043.

Useful Links

Register for Let the Sunshine In: Solar Siting in Maryland 

Sierra Club of Maryland Website

Solar United Neighbors Website

 

 

 

 

Cecil Breaks Ground on Elkton West Sanitary Sewer Project

Photo courtesy of Cecil County Government

Cecil County Executive Alan McCarthy, County Administrator Al Wein, along with Council Vice President Dan Schneckenburger and Councilman Bob Meffley, Director of Public Works Scott Flanigan, and members of the project team took part in a groundbreaking ceremony for the Elkton West Sanitary Sewer Subdistrict Tuesday afternoon.

According to a press release:

The Marley Road Sewer Extension, slated for completion in late February 2019, is the first phase of construction.The project will extend gravity sewer from an existing tie-in location located at the entrance of AUI Power along the south side of Route 40 approximately 1000-ft. east of the Marley Road intersection. Gravity sewer will also be extended approximately 700-ft. up Marley Road north of Route 40.

This phase of the project will provide a connection location for a future sewer force main associated with phase two of the Elkton West project. There are currently three phases of construction planned along the Route 40 corridor which will result in County owned and operated sanitary sewer service from Route 279 to Marley Road upon completion.

“This is a very exciting day and I would like to express my thanks to the council members who have helped make this happen,” expressed County Executive Alan McCarthy. “This is 50 years in the making and we want to get it done!”

Read the full press release for more information.

Rural Revitalization Guide Highlights Resources for Struggling Communities

Preservation Maryland news release (2018-09-04) announced the publication of a new guide for rural community revitalization.  The guide was developed and published in partnership with the Rural Maryland Council. From the news release:

Revitalizing communities is complex and challenging work. For rural communities, the work often comes with even greater obstacles and hurdles to overcome. The creation of this rural resource guide is Preservation Maryland’s latest effort to support this critical work in smart growth and rural revitalization.

Comprehensive Guide to Rural Revitalization

The 50+ page report entitled, Revitalizing Rural Maryland: A Resource Guide for Rural Communities, is divided by the different resources available to rural communities, including:

  • Grants and Loans
  • Tax Credits
  • Technical Assistance
  • County Specific Resources
  • Case Studies

 

RMC logo

 

 

Useful Links

Revitalizing Rural Maryland Report

Preservation Maryland Website

Rural Maryland Council Website

1000 Friends of Maryland Merges With Preservation Maryland

Land use and Smart Growth advocacy group 1000 Friends of Maryland recently merged into historic preservation group Preservation Maryland. Former 1000 Friends Executive Director Kimberly Golden Brandt will now oversee a new campaign for the combined organizations called Smart Growth Maryland. From the Preservation Maryland webpage on Smart Growth Maryland:

Smart Growth Maryland is a campaign of Preservation Maryland which advocates for a more environmentally and economically sustainable future that creates opportunities for all Marylanders through better development patterns. …

Smart Growth Maryland focuses its work in three critical areas: advocacy, education and technical assistance.

The staff of Smart Growth Maryland advocate at the local, state and federal level for programs and policies which incentivize smarter growth patterns and protect critical natural, cultural and historic resources. In addition, Smart Growth Maryland also presents at workshops, trainings, seminars and conferences throughout the state to provide access to the latest trends in smart growth. Smart Growth Maryland’s professional staff also works throughout the state to assist counties, municipalities and developers that are contemplating smart growth projects. Staff provides a wide range of expert technical assistance with projects aimed at revitalization, land-use planning and resource conservation.

The webpage notes that Smart Growth Maryland is a program fully within Preservation Maryland and will be annually reported on Preservation Maryland’s IRS 990 form. Tax-deductible contributions made to Preservation Maryland can be specifically restricted to the Smart Growth Maryland campaign.

Useful Links

Preservation Maryland Website

Governor: “No Plans” To Take Homes for I-270

Governor Larry Hogan has assured protestors and concerned citizens that his plans to improve traffic conditions along I-270 and the Beltway will not result in any eminent domain affecting residents’ homes. WTOP reports:

At a news conference in Annapolis on Tuesday, the governor repeated what he told a group of concerned citizens at a Labor Day parade in Kensington: “The state has no plans that show anybody’s houses being taken,” he said.

Maryland’s State Highway Administrator Greg Slater elaborated that the State plans on “challenging our private sector partners to find a solution that fits within that right of way.”

The protests and assurances come after the Action Committee for Transit submitted a Public Information Act request for any and all relevant plans. The Maryland Department of Transportation (MDOT) responded denying the group’s request for a fee waiver and requesting payment.

The 15 alternatives proposed by MDOT in fact do not appear to expand existing right-of-way, but rather, implement express toll lanes, carpool lanes, and transit options. Read more about the alternatives here.

Relevant Links

MDOT’s Project Website

WTOP coverage

Maryland Transit Opportunities Coalition coverage

 

Delegate Calls for “Top Down” Approach for “A Better Maryland”

As previously reported on Conduit Street, a MACo 2018 Summer Conference panel offered various perspectives on the future of Smart Growth and the pending state development plan “A Better Maryland.” A Daily Record article (2018-08-17) also covered the event and included the perspective of Maryland Delegate Stephen Lafferty, who moderated the panel and is chair of the Environment Subcommittee of the House Environment and Transportation Committee.

A Better Maryland is set replace the State’s now defunct development plan “PlanMaryland.” In the article, Lafferty argued that A Better Maryland needed to take a top down approach and include mandates on local governments. From the article:

Lafferty said any plan created next year will be scrutinized by lawmakers and that mandates may be unavoidable. He said the Better Maryland plan “may be lighter than what I think is needed.”

“It has to be top down,” said Lafferty. (The state) has to say, ‘You guys have to address these issues, you have to address climate change.’ We have to find a different balance, and it’s not going to be easy.”

Lafferty also defended PlanMaryland and argued that focusing on urban areas was important because that’s where the majority of the state’s population lives. Lafferty’s urban area comments were in response to comments made during the presentation by Maryland Special Secretary of Smart Growth Wendi Peters that focused more rural areas.

MACo supported the aspects of PlanMaryland that included better coordination between State agencies on land use and project decisions (horizontal integration) and criticized the aspects of the plan that created a more top-down planning approach and added another layer of planning designations over the existing planning framework. Ultimately, only a very small percentage of counties and municipalities undertook the PlanMaryland designation process.

The article also summarized the comments of the three panelists on “A Better Maryland.” The panelists included Peters, National Center for Smart Growth Executive Director Gerrit Knaap, and Garrett County Planner Director Deborah Carpenter.

Useful Links

Conduit Street Coverage of Smart Growth Panel at 2018 MACo Summer Conference

A Better Maryland Webpage

Special Appeals Court Holds PSC Preempts Local Zoning on Solar Siting

The Maryland Court of Special Appeals issued an unreported decision on August 28, 2018 that highlighted the complicated, multi-pronged test Maryland Courts use when determining when state law has prohibits local government regulation of a subject through implied preemption. Specifically, Board of County Commissioners of Washington County v. Perennial Solar, LLC 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 (SEGS). A CPCN is a state approval for the siting of large scale solar projects.

Two important points: First, the case is an “unreported decision” which means that it may not be cited as either precedent or persuasive authority. This limits the holding of the case to the specific matters contained in the case. Second: the decision is based on State law that was in existence prior to the adoption of HB 1350 of 2017, which 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.

The Facts of the Case

In 2015, Perennial Solar filed an application for a special exception and variance with the Washington County Board of Zoning Appeals to construct a SEGS on 86 acres of land zoned by the County as Agricultural (Rural). After a public hearing, the Board granted Perennial’s application. Perennial subsequently applied for a CPCN through the PSC, which was approved.

Several affected property owners challenged the PSC’s action in Circuit Court. The Circuit Court dismissed the action on a motion by Perennial, finding that the PSC decision preempted local zoning. The property owners and the Washington County Board of County Commissioners appealed the Circuit Court’s dismissal to the Court.

The Court’s Holding

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. The case first outlined the complicated factors Maryland Courts use when reviewing implied preemption and then applied those factors to the facts of the case:

Although there is no specific formula to determine whether the General Assembly intended to preempt an entire area, Maryland courts have considered the following secondary factors relevant to whether a local law is preempted by implication:

  1. whether local laws existed prior to the enactment of the state laws governing the same subject,
  2. whether the state laws provide for pervasive administrative regulation,
  3. whether the local ordinance regulates an area in which some local control has traditionally been allowed,
  4. whether the state law expressly provides concurrent legislative authority to local jurisdictions or requires compliance with local ordinances,
  5. whether a state agency responsible for administering and enforcing the state law has recognized local authority to act in the field,
  6. whether the particular aspect of the field sought to be regulated by the local government has been addressed by the state legislation, and
  7. whether a two-tiered regulatory process existing if local laws were not preempted would engender chaos and confusion. …

Based on the comprehensiveness of §7-207 [of the Public Utilities Article], local zoning regulations and comprehensive plans are impliedly preempted by state law for SEGSs requiring a CPCN. The statute grants the PSC broad authority to determine whether and where the SEGS may be constructed and operated. It is even more evident that the Legislature intended to have the state govern SEGS approval by requiring local government input into the state’s final decision.

The Court of Appeals reached the same conclusion in Howard County v. Potomac Electric Power Co., 319 Md. 511 (1990). There, the Court considered whether the authority granted to the PSC under Article 78 (now PUA §7-207) preempted local land use and
zoning ordinances regulating the location and construction of certain transmission lines.

The Court also considered and rejected an argument by Washington County that the PSC law does not apply to Perennial Solar because it is not a “public service company.”

The Take Away

While this case is nominally about solar siting and local zoning, the broader issue for local governments is the vague and somewhat arbitrary “test” Maryland Courts use when determining implied preemption. Absent a clear rule about when a policy area is preempted by the state, local governments face uncertainty in many policy areas where both state and local regulation currently coexist.

 

Useful Links

HB 1350 of 2017

 

Ellicott City Demolition Plan Draws Criticism from Preservation Maryland

Baltimore Business Journal article (2018-08-24) highlighted the tricky intersection between protecting the public, creating sound land use and environmental policy, and preserving history. The article recounted the criticism Preservation Maryland has leveled towards a recently announced plan by Howard County to demolish 10 historic Main Street buildings in Ellicott City in order to control catastrophic flooding that has claimed lives and caused significant property damage to the downtown area over the last two years.

The article stated that Howard County Executive Allan Kittleman recently unveiled a plan to raze 10 historic buildings and nine other buildings in order to create green space and expand the Tiber River. The plan also called for construction of several flood control measures further upstream. According to Kittleman, the plan is based on an engineering study funded by the County (The study will be made public shortly).

However, the article noted that the plan drew a strong rebuke from Preservation Maryland:

To Preservation Maryland, the move to demolish the buildings at 8049 to 8125 Main St. that include Phoenix Emporium, Portalli’s, the Bean Hollow coffee shop and former Caplan’s building could nix historic tax credits and other incentives for the former mill town. …

Preservation Maryland Executive Director Nicholas Redding said his group was not included in discussions about the fate of the historic buildings or the demolition plan despite reaching out to Kittleman several times over the past few months with no response.

The article stated that Preservation Maryland is willing to provide matching funds to study alternatives and will release its own white paper on how to best address the Ellicott City flooding issue.

Useful Links

Preservation Maryland Response to Howard County Ellicott City Proposal

Prior Conduit Street Coverage of Ellicott City Flooding

Frederick to Consider Craft Beverages Agri-Tourism Legislative Proposal

County Executive Jan Gardner today announced legislation to allow farm-based craft beverage producers to hold special events that educate the public or to promote their products.

According to a press release:

“This proposal is an excellent way to encourage emerging industries and provide options to ensure agriculture remains viable,” commented Executive Gardner. “At the same time, the legislation respects the rights of nearby property owners and addresses their concerns.”

Last year, Executive Gardner formed a workgroup to come up with a solution to strike a balance between the concerns of residents and the growing demand for agri-tourism activities. The work group included representatives from the Agriculture Business Council, the Farm Bureau, the craft beverage industry, County Council members, and county Planning & Permitting and Office of Economic Development employees.

The workgroup’s proposal would amend the County Zoning Ordinance to add a
definition of agri-tourism enterprise for farm-based craft beverage events. Activities would be recognized as being accessory to an agricultural property’s normal use. Owners of the properties must have already obtained a special alcohol license from the state. It would limit outdoor amplified music, not allow overnight events and provide penalties for violations.

Farm-based craft beverage vendors must also meet minimum life safety and Health
Department rules and regulations.

The draft legislation was approved by the Agricultural Business Council and the Frederick County Farm Bureau. The County Council is expected to introduce the proposal next month.

Read the full press release for more information.