Bd. of Cnty. Commissioners of Wash. Cnty. v. Perennial Solar, LLC
212 A.3d 868
Md.2019Background
- Perennial Solar, LLC applied for a special exception and variance in Washington County to build an 86-acre, 10 MW Solar Energy Generating System (SEGS) whose output would be sold offsite. The county zoning ordinance permits SEGS by special exception in the Agricultural‑Rural district with detailed design standards.
- The Washington County Board of Zoning Appeals granted the special exception and variance after public hearings; neighboring landowners sought judicial review in circuit court. Washington County intervened.
- While the appeal was pending, Perennial moved to dismiss for lack of subject‑matter jurisdiction, arguing state law (PU § 7‑207) implicitly preempts local zoning for SEGS that require a Certificate of Public Convenience and Necessity (CPCN) from the Maryland Public Service Commission (PSC).
- The circuit court granted Perennial’s motion, holding PU § 7‑207 impliedly preempts local zoning for CPCN‑covered generating stations; the Court of Special Appeals affirmed. Washington County appealed to the Court of Appeals.
- The Court of Appeals held PU § 7‑207 is a comprehensive scheme giving the PSC final authority to approve siting and construction of generating stations requiring a CPCN, while local governments have an advisory role; therefore local zoning is impliedly preempted as to CPCN‑required SEGS.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether PU § 7‑207 impliedly preempts local zoning authority over siting and construction of SEGS requiring a CPCN | Perennial: PU § 7‑207 vests broad, final siting authority in the PSC and the statute is comprehensive, so state law occupies the field | Washington County: Local planning/zoning power is expressly delegated by statute; PU § 7‑207 only gives local governments an advisory role, not exclusive preemption; courts should not permit partial preemption | Held: Yes. PU § 7‑207 is comprehensive and grants final approval to the PSC; local zoning is impliedly preempted for SEGS that require a CPCN, though local plans/zoning must receive "due consideration" in PSC proceedings |
| Whether PSC jurisdiction under PU § 7‑207 extends to non–public service companies (i.e., private solar developers) | Perennial: The statute applies to all "persons" seeking to construct generating stations; exemptions exist for certain small systems, showing covered scope | Washington County: PSC regulates only public service companies; counties retain zoning authority over private developers | Held: The Court agreed with the PSC/Perennial: PU § 7‑207 applies to any person constructing a generating station; PSC jurisdiction is not limited to public service companies |
Key Cases Cited
- Howard County v. Potomac Elec. Power Co., 319 Md. 511 (1990) (state PSC statute impliedly preempted county zoning over high‑voltage transmission lines)
- Ad + Soil, Inc. v. Cty. Comm’rs of Queen Anne’s Cty., 307 Md. 307 (1986) (limits on preemption where state law did not occupy field and local permits were required)
- Allied Vending, Inc. v. City of Bowie, 332 Md. 279 (1993) (factors for implied preemption analysis; state occupancy of field through comprehensive regulation)
- Altadis U.S.A., Inc. v. Prince George’s Cty., 431 Md. 307 (2013) (state regulation comprehensiveness as indicia of intent to preempt local law)