Board of County Commissioners of Washington County, et al. v. Perennial Solar, LLC
No. 1022
IN THE COURT OF SPECIAL APPEALS OF MARYLAND
November 15, 2018
September Term, 2016; Circuit Court for Washington County, Case No. 21-C-15-055848; REPORTED; Berger, Reed, Salmon, James P. (Senior Judge, Specially Assigned), JJ.; Opinion by Reed, J.
MUNICIPAL CORPORATIONS > LOCAL LEGISLATION
If the General Assembly has preempted a certain field, municipalities have no authority to legislate in that field.
MUNICIPAL CORPORATIONS > RELATION TO STATE
MUNICIPAL CORPORATION > CONCURRENT AND CONFLICTING EXERCISE OF POWER BY STATE AND MUNICIPALITY
Local governing bodies are impliedly preempted from regulating the location and/or construction of generating stations that require a Certificate of Public Convenience and Necessity (CPCN) by broad legislative grant of power to the Public Service Commission.
PUBLIC UTILITIES > PUBLIC SERVICE COMMISSIONS OR BOARDS > JUDICIAL REVIEW OR INTERVENTION
The Public Service Commission is not limited to authorizing CPCNs to electric companies under
Circuit Court for Washington County
Case No. 21-C-15-055848
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 1022
September Term, 2016
BOARD OF COUNTY COMMISSIONERS OF WASHINGTON COUNTY, et al.
v.
PERENNIAL SOLAR, LLC
Berger,
Reed,
Salmon, James P.
(Senior Judge, Specially Assigned),
JJ.
Opinion by Reed, J.
Filed: November 15, 2018
- Did the circuit court err in ruling that state law preempts local zoning authority, with respect to the solar energy generating facility, proposed in this matter?
- Whether Perennial Solar is a public service company and therefore subject to regulation by state law.
For the reasons that follow, we affirm the decision of the circuit court.
FACTUAL AND PROCEDURAL BACKGROUND
On September 17, 2015, Perennial filed an application for special exception and variance with the Board of Zoning Appeals to construct and operate a Solar Energy Generating System (SEGS)1 in Cearfoss,
A hearing was held before the Board of Zoning Appeals (the Board) on October 21, 2015. Multiple witnesses testified both in favor and in opposition of granting the special exception. After considering the matter for two weeks, the Board granted the request for special exception and variance on November 4, 2015.3 As required by Maryland statute, Perennial then applied for a Certificate of Public Convenience and Necessity (CPCN) permit in order to construct the SEGS.4 Neighboring landowners appealed the decision to the Circuit Court for Washington County.
Before the hearing, Perennial filed a Motion for Pre-Appeal Determination alerting the court to an issue of subject matter jurisdiction. In short, Perennial argued that the Maryland Public Services Commission (PSC), and its law codified in the Public Utilities Article of the Maryland Code, has exclusive jurisdiction for approving the SEGS proposed by Perennial, including site location approval. Perennial requested that the appeal be dismissed. Appellants opposed the motion, arguing that legislative intent reveals that local regulation of SEGS – particularly their location – is not preempted by state law. After a hearing, the circuit court agreed with Perennial and granted the motion. The court determined that Public Utilities Article (PUA) §7-207 preempts the Washington County Zoning Ordinance and that the PSC has exclusive jurisdiction to approve the type of SEGS proposed by Perennial. This appeal followed.
DISCUSSION
A. Parties’ Contentions
Appellants argue that PSC approval of the SEGS at the proposed location would be inconsistent with the local planning and zoning controls of the Washington County Zoning Ordinance. The conflict, Appellants continue, should be resolved in favor of local government. Appellants attempt to distinguish this case from Howard County v. Potomac Electric Power Co., 319 Md. 511 (1990), where the Court of Appeals held that local governing bodies are impliedly preempted from regulating construction of certain electric power lines. Appellants argue that, unlike with power lines, the location of SEGS does not present a sufficiently compelling public interest, and the Public Utilities Article laws do
Perennial counters arguing, [f]or the type of solar energy generating system proposed in this matter, the statutory law and case law are clear that the authority to determine whether and where the SEGS may be built and operated rests solely within the purview of the PSC. Perennial relies on Howard County, discussed below, to support its argument that jurisdiction of its application for special exception lies solely with the PSC, not the local government. Perennial also maintains that the PSC laws concerning generating systems are not limited to electric companies or public service companies.
B. Standard of Review
This case presents questions of both preemption and jurisdiction. Both are questions of law to be determined by this Court de novo. See County Comm’rs of Kent County v. Claggett, 152 Md. App. 70, 91 (2003) (In this case, the appellants do not challenge the court’s factual findings. They challenge the court’s legal finding of preemption based on those factual findings. Accordingly, our standard of review is de novo.).
C. Analysis
1. Preemption by Implication
The question we aim to answer is whether
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.
Allied Vending, Inc. v. Bowie, 332 Md. 279, 299-300 (1993) (citations omitted). Nevertheless, the comprehensiveness with which the Legislature has spoken about the issue is the primary indicator of implied preemption. Id. See also, Skipper, 329 Md. at 492 (quoting Howard County, supra) ([t]he primary indicia of a legislative purpose to preempt an entire field of law is the comprehensiveness with which the General Assembly has legislated in the field.). In light of the comprehensiveness of
In regard to generating stations,
Two sections,
Once the application is submitted, the PSC is required to provide notice to interested parties, including the governing body of each county or municipal corporation in which any portion of the generating station . . . is proposed to be constructed[.]
The PSC must also provide an opportunity for public comment and hold a public hearing on the CPCN application. See
(1) the recommendation of the governing body of each county or municipal corporation in which any portion of the construction of the generating station, overhead transmission line, or qualified generator lead line is proposed to be located; and
(2) the effect of the generating station, overhead transmission line, or qualified generator lead line on:
(i) the stability and reliability of the electric system;
(ii) economics;
(iii) esthetics;
(iv) historic sites;
(v) aviation safety as determined by the Maryland Aviation Administration and the administrator of the Federal Aviation Administration;
(vi) when applicable, air and water pollution; and
(vii) the availability of means for the required timely disposal of wastes produced by any generating station.
On the other hand, Washington County’s Zoning Ordinance and Comprehensive Plan, to which Appellants cite, are much less thorough regarding the construction of generating stations. Washington County’s comprehensive plan promotes the preservation of agricultural uses adjacent to rural villages such as Cearfoss (the SEGS proposed location). With respect to areas adjacent to rural villages, the comprehensive plan recommends, inter alia, that the County:
Require development on the edge of a Rural Village to be designed to extend the fabric of the existing development and [e]nsure that the natural edge between the village and the adjacent agricultural or opens space area is maintained.
Appellants argue that a SEGS at the proposed location would not extend the existing development in that area. It is important to note, however, that this portion of the comprehensive plan is merely a recommendation. See HNS Dev. v. Baltimore County, 425 Md. 436, 457–58 (2012) (quoting Mayor & Council of Rockville v. Rylyns, 372 Md. 514, 530 (2002)) (As a general rule, comprehensive plans which are the result of work done by planning commissions and adopted by ultimate zoning bodies, are advisory in nature and have no force of law absent statutes or local ordinances linking planning and zoning. Where the latter exists, however, they serve to elevate the status of comprehensive plans to the level of true regulatory devices.).
Washington County Zoning Ordinance provides regulations for SEGS specifically. Section 4.26 of the ordinance, titled Solar Energy Generating Systems, states:
The purpose of this section is to establish regulations to facilitate the installation and construction of Solar Energy Generating Systems as defined in Section 28A (hereinafter SEGS) for landowners, subject to reasonable restrictions which will preserve the public health and safety.
SEGS shall be permitted as a land use and specified in Sections 3.3 and 21.32 of this ordinance. However, SEGS shall be
prohibited as a use in defined Priority Preservation Areas, Rural Legacy Areas, and Antietam Overlay zones.
The section describes in great detail the design standards to which SEGSs must adhere, including appearance, height, lot size, and lighting requirements. It also provides design standards for SEGSs in airport zones.
Based on the comprehensiveness of
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
The Court based its decision on the comprehensiveness of PSC laws governing generating stations and transmission lines and the advisory role of local governing bodies. It noted that:
The provisions of Article 78, and in particular §54A, make no reference to local governing bodies; the only language giving recognition to local authorities in the proceedings for granting a certificate of public convenience and necessity is that in §54A which states that the PSC shall make its determination after due consideration of the recommendations of such governing bodies. Manifestly, this language implies that the recommendations from other state agencies and local governing bodies are advisory only and not controlling.
Id. at 525-26. Ultimately, the Court held that local governing bodies are impliedly preempted from regulating construction of transmission lines carrying in excess of 69,000 volts by broad legislative grant of power to Public Service Commission to regulate construction of overhead transmission lines. Id. at 511.
Appellants’ attempt to distinguish Howard County from the case at bar fails. Appellants argue that the explicit[] premise[] and essence of the decision in Howard County is that the need of the community for high-voltage transmission lines was of such public benefit and significance that local zoning should be preempted[,] and such public interest does not exist for SEGS. We find no language in Howard County to support such an assertion. The holding, which is the same conclusion we reach in the case before us, rested on the fact that Article 78 is substantially more
Appellants also draw our attention to Fiscal and Policy Note to Senate Bill 887 (2013). In pertinent part, the note reads:
PSC is the lead agency for licensing the siting, construction, and operation of power plants in the State. If a generation station is granted an exemption from the CPCN requirement,
PSC evaluation is limited to ensuring safety and reliability of the electric system. All other issues other than safety and reliability of the electric system are left up to other State and local agencies.
Appellants argue that because a CPCN is required for some but not all solar photovoltaic system-based generating stations, it cannot be said that the legislative body intended to preempt the entire field. We do not agree. Exempting certain generating stations from the CPCN requirement does not lessen the comprehensiveness of
2. PSC Jurisdiction
Lastly, Appellants argue that Perennial is not governed by PSC law because [t]he Public Service Commission regulates only solar photovoltaic systems operated by public service companies. This argument is without merit.
Appellants cite to
Appellants draw our attention to a decision by the PSC for a CPCN application, In Re: Potomac Edison Co., 100 Md. P.S.C. 276, 2009 WL 3517701 (2009), where the PSC found that
JUDGMENT OF THE CIRCUIT COURT FOR WASHINGTON COUNTY AFFIRMED; COSTS TO BE PAID BY APPELLANTS.