BOARD OF COUNTY COMMISSIONERS OF WASHINGTON COUNTY, et al.
PERENNIAL SOLAR, LLC
Circuit Court for Washington County Case No. 21-C-15-055848
Berger, Reed, Salmon, James P. (Senior Judge, Specially
Perennial Solar, LLC ("Perennial"), filed an
application for a special exception and variance to construct
a solar panel farm in Washington County, Maryland. On
November 4, 2015, the Washington County Board of Zoning
Appeals ("the Board") granted the application.
Appellants, the Board of County Commissioners of Washington
County and several aggrieved residents, appealed the decision
to the Circuit Court for Washington County. On a preliminary
motion filed by Perennial, the court determined that the
authority of the Board of Zoning Appeals and the circuit
court to consider the application for special exception is
preempted by state law. The court dismissed the appeal with
instruction that the Board of Zoning Appeals vacate its
decision. Appellants challenge the state law preemption
finding and present three questions for our review, which we
have consolidated into two and rephrased:
I. 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?
II. Whether Perennial Solar is a "public service
company" and therefore subject to regulation by state
reasons that follow, we affirm the decision of the circuit
and Procedural Background
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") in Cearfoss, Maryland, on around
eighty-six acres of land. According to the Washington County
Zoning Ordinance,  the proposed site is located in an
Agricultural (Rural) zoning district. The County permits a
SEGS in this district but only by a special exception. The
SEGS is designed to produce ten megawatts of electricity to
be sold and transferred offsite to the wholesale electricity
market. The electricity generated would be sufficient to
power over two thousand homes.
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. As required by
Maryland statute, Perennial then applied for a Certificate of
Public Convenience and Necessity ("CPCN") permit in
order to construct the SEGS. Neighboring landowners appealed
the decision to the Circuit Court for Washington County.
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.
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 not occupy
the entire field of SEGS. Appellants also assert that the PSC
has jurisdiction only to regulate public service companies,
which does not include 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."
Standard of Review
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.").