Some Things Never Change

By Karen Federman Henry

In the words of Yogi Berra, “It’s like déjà vu all over again.”  That thought came to mind when reading the Court of Appeals’ decision in Board of County Commissioners of Washington County v. Perennial Solar, LLC, Sept. Term, 2018, No. 66 (filed July 15, 2019).  In the course of concluding that the Public Service Commission (PSC) regulates solar systems—leaving local governments unable to impose zoning restrictions and procedures on them—the Court sounded much like it did in 1990 when addressing high-voltage overhead transmission power lines in Howard County v. Pepco, 319 Md. 511 (1990).

The earlier case involved Pepco’s effort to install high-voltage overhead transmission lines on a path that crossed through Montgomery County and Howard County.  Both counties included the use in their respective zoning ordinances as permitted special exceptions.  Although Montgomery County’s Board of Appeals granted the requested special exception, Howard County’s Board denied the application.  Upon reaching the Court of Appeals, the same issue of preemption was presented to the Court—whether the broad authority of the PSC preempted local governments from imposing their zoning requirements on the location of the power lines.  Concluding that the law preempted local zoning by implication, the Court described the similarities between the local zoning procedures and the PSC’s consideration—both held public hearings and both considered the interests of the affected communities.  Because the local governments had an opportunity to participate in the PSC proceeding, the Court was comfortable that the public’s needs were addressed adequately.

With the ever-increasing alternatives to energy sources, we should have seen the recent decision coming.  Solar power has become more evident in local areas and presents many of the same issues for the communities regarding placement that power lines triggered in the past.  Local zoning usually serves as a meaningful way to ensure consistent development and provides an opportunity for affected individuals to voice their concerns and have them addressed.  Perennial Solar, LLC, is one of many companies now installing solar panels in a variety of areas for the benefit of energy users.  Because Washington County required a special exception and a variance for Perennial to install a solar energy generating system (SEGS) next to a rural village, Perennial filed an application with the County’s Board of Zoning Appeals.  The Board granted the requests and a group of landowners sought review in the Circuit Court.  At that juncture, Perennial raised the issue of whether the PSC’s authority preempts local zoning related to the SEGS.  The Circuit Court agreed that it did and the Court of Special Appeals affirmed that decision, after which the Court of Appeals granted a writ of certiorari.

Perhaps in response to the community’s frustration, the Court of Appeals analyzed the case from several perspectives.  First, the Court evaluated the statutory framework of the Public Utilities Article and several key provisions within it.  Emphasizing the enactment of the Greenhouse Gas Emission Reduction Act of 2009, the Clean Energy Jobs Act of 2019, and the provisions for improving the State’s renewable energy portfolio, all of which fall within the PSC’s authority, the Court concluded that the PSC has broad authority to approve generating stations.  In fact, no generating stations may be constructed without first obtaining a certificate of public convenience and necessity.  Echoing its comments in Pepco, the Court noted that local governments receive notice of any application for the certificate within their boundaries, along with legislators and other interested persons within the affected area.  Next, the Court compared the provisions of the Washington County Zoning Ordinance with the elements considered by the PSC, and viewed the criteria considered by the PSC to be comparable to the local ordinance and adequate to address the same concerns.  The discussion included a gentle reminder that a special exception is presumed to be compatible with the neighborhood absent facts or circumstances that negate the presumption.

The Court also performed an extensive preemption analysis and found that each element for preemption by implication existed—a comprehensive statutory scheme, pervasive administrative regulation at the State level, no indication of concurrent legislative authority, and possible chaos and confusion if both the State and local government regulate the same use.  The Court also highlighted recent legislation that suggests the General Assembly’s intent that local planning and zoning have a lesser role in the decision regarding where to place solar energy panels.

Most importantly, the Court compared the Perennial application with the earlier analysis in Pepco.  The point-by-point comparison left no doubt that the Court would reach the same result.  In both cases, special exception applications led to the litigation, and the question before the Court asked whether the authority granted to the PSC preempted local zoning.  Washington County’s efforts to rely on the Express Powers Act and the essence of zoning as a key part of local jurisdiction found no greater traction than similar arguments achieved in Pepco—the PSC process considers the same factors as local zoning, and the PSC has the final say in the siting and location of transmission lines and solar panels.

In many ways, we should have seen this result coming.  As the methods of distributing energy evolve, along with the authority of the Public Service Commission, it makes sense that the same logic will apply to those activities.  As long as the PSC considers local input—from the local government and the affected members of the community—the same issues that zoning addresses should suffer no harm.  It remains to be seen whether there will come a time that the PSC interferes with the traditionally local handling of zoning.



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