Bd. of Cnty. Comm'rs of Wash. Cnty. v. Perennial Solar, LLC
196 A.3d 933
Md. Ct. Spec. App.2018Background
- Perennial Solar, LLC applied to Washington County Board of Zoning Appeals for a special exception and variance to build an ~86-acre Solar Energy Generating System (SEGS) producing 10 MW to sell into the wholesale grid.
- The Board granted the special exception and variance on November 4, 2015; neighboring landowners appealed to the Circuit Court for Washington County.
- Perennial filed a pre-appeal motion arguing the Maryland Public Service Commission (PSC), under PUA §7-207, has exclusive jurisdiction over siting/construction of SEGS requiring a Certificate of Public Convenience and Necessity (CPCN).
- The circuit court agreed, holding PUA §7-207 impliedly preempts local zoning for SEGS that require a CPCN and dismissed the appeal, instructing the BZA to vacate its decision.
- The Court of Special Appeals affirmed, concluding §7-207’s comprehensiveness places siting and approval authority primarily with the PSC and that the PSC’s CPCN authority extends to any “person,” not only public service companies.
Issues
| Issue | Appellants' Argument | Perennial's Argument | Held |
|---|---|---|---|
| Whether PUA §7-207 impliedly preempts local zoning authority over location/construction of a SEGS requiring a CPCN | Local zoning/planning should control site location; state law does not occupy the entire field; local interests (e.g., agricultural preservation) should prevail | §7-207 grants broad, comprehensive PSC authority over generating stations and requires local input but not local control; PSC preempts local zoning for projects requiring CPCN | Held: §7-207 impliedly preempts local zoning for SEGS that require a CPCN; PSC is the primary decisionmaker, with local bodies advisory |
| Whether Perennial (a private developer) is subject to PSC jurisdiction or whether PSC regulates only "public service companies" | PSC regulates only public service companies; Perennial is not a public service company, so PSC lacks jurisdiction | PUA defines "person" broadly; §7-207(b)(1)(i) requires any person building a generating station to obtain a CPCN; PSC authority is not limited to public service companies | Held: PSC jurisdiction under §7-207 covers any “person” seeking to construct a generating station; Perennial is subject to PSC regulation |
Key Cases Cited
- Howard County v. Potomac Elec. Power Co., 319 Md. 511 (1990) (PSC’s broad authority over transmission/generating facilities impliedly preempts local zoning)
- Allied Vending, Inc. v. Bowie, 332 Md. 279 (1993) (factors for implied preemption analysis and role of legislative comprehensiveness)
- Talbot County v. Skipper, 329 Md. 481 (1993) (test for implied preemption: whether State intended to occupy the field)
- Ad + Soil, Inc. v. County Comm'rs, 307 Md. 307 (1986) (local regulation prohibited when General Assembly clearly occupies a field)
- East Star, LLC v. County Comm'rs of Queen Anne's County, 203 Md. App. 477 (2012) (discussion of preemption principles and application to utility-related local regulation)