Public Service Commission Can Overrule Local Government, Court Says

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The Maryland Court of Appeals reaffirmed on Tuesday that the Maryland Public Service Commission is the final arbiter on the location and approval of solar projects larger than two megawatts—and can preempt local jurisdictions after giving “due consideration” to local zoning ordinances and comprehensive plans.

The ruling cites the historical “intent” of the Maryland General Assembly in passing public utilities law as well as recent amendments enacted in 2017 that reinforced the PSC’s  “decision-making” authority.

The court affirmed that it has always upheld the broad powers of the PSC given to it in statute by the legislature “to execute its principal duty of assuring adequate electrical service statewide.”

And while the court recognized local government as a partner in the decision process, “the ultimate decision-maker is the PSC, not the local government or local zoning board.”

The court did, however, note the PSC’s obligation to consider local land use laws when approving applications for solar projects that require a Certificate of Public Convenience and Necessity.

Local zoning laws are “nevertheless a statutory factor requiring due consideration by the PSC in rendering its ultimate decision,” the ruling said.

The recent court ruling comes from a case in Washington County where local residents fought Perennial Solar, LLC ‘s application in late 2015 for a variance to build an 86-acre solar farm near the village of Cearfoss.

The Washington County Board of Zoning Appeals approved the application, ruling that the project conformed to the comprehensive plan.  Residents soon petitioned the Washington County Circuit Court to kill the project because it would blight the rural landscape.

But Perennial filed a motion challenging the jurisdiction of the circuit court on the grounds that state law gave the PSC final authority under the state’s Public Utilities Article, passed by the Maryland General Assembly, to approve the placement of solar energy generating systems. The circuit court agreed.

The Washington County Commissioners and a group of citizens appealed to the Maryland Court of Special Appeals, which sided with the circuit court in affirming the state’s preemptive authority.

The Washington Commissioners brought the case to Maryland Court of Appeals in late 2018 on the grounds that the General Assembly had “prescribed a role for local government” through local planning and zoning that was not preempted by the PSC.

But the appeals court sided with Perennial, citing case law, the 2017 amendments to public utilities article, and bills that failed in the General Assembly to allow for greater local control.

“Our holding that the General Assembly’s intent to preempt local comprehensive planning and zoning on matters related to the ultimate siting and construction of generating stations is bolstered by the recent amendments to the statute, as well as our consideration of the proposed bills, which were rejected,” the court said.

“If the General Assembly intended to change the existing law, it certainly had the opportunity to do so,” the court said.

The recent ruling received a cool response from Queen Anne’s Conservation Association Executive Director Jay Falstad, who highlighted the PCS’s obligation to local jurisdictions in the ruling.

“Given everything we’ve heard about the great importance of allowing land-use decisions to be made by the Counties rather than by the State, we’re somewhat surprised that the Court of Appeals has ruled unanimously that it’s the State, not the Counties, that will decide where in a County any big solar project is to be located,” Falstad wrote in an email to the Spy. ”But the Court is very careful to emphasize many times over that the PSC is legally required to listen to the County’s views and to give “due consideration” to how the County treats solar projects in its comprehensive plan and zoning regulations.  So, as an environmental organization that strongly supports solar projects when they are built in the right places, we at QACA will go on working at both levels, state and local, for good decision-making about solar in Queen Anne’s County and its neighbors.”

Though disappointed with the ruling, the Kent Conservation Alliance, through its attorney Chris Drummond, said the PSC over the past few years has actually been more proactive in working with local communities on renewable energy projects.

“The Kent and Queen Anne’s County Commissioners are surely disappointed with the Court of Appeals decision,” Drummond wrote in an email to the Spy. “However, the attitude among state agencies regarding local land use and zoning concerns seems to have changed in the past few years. Now, the state agencies that provide information and recommendations to the Public Service Commission actively seek local input and include those concerns in reports to the PSC. Recently, solar applications have been approved by the PSC with conditions that require compliance with local site plan and landscaping requirements. We will work to make sure that the state agencies continue to take local concerns and land use regulations seriously.”

Drummond filed an amicus brief in support of the Washington County Commissioners.

Maryland Association of Counties said the decision was a disappointment but said the organization would “continue to advocate for a county voice in the decision-making process” and that the 2017 legislation did not sideline local governments in the approval process.

“The court’s decision reiterated important parts of state law that require the Commission to give due consideration to the position of a local government on an energy generation projects,” said Les Knapp, chief policy counsel for MACo in an email to the Spy.

But the attorney representing the Washington County citizens group, William Wantz, was not as optimistic and said Western Maryland and the Eastern Shore would soon feel the encroachment of solar farms.

“The availability of farmland at reasonable cost will periodically result in a disproportionate concentration of solar farms displacing agriculture in Western Maryland and the Eastern Shore, where rural land prices are cheap.”

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