County Granting Special Exception for Solar Development Did Not Create a Vested Right
Updated: Nov 5, 2021
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Many past readers may remember the previous discussions on the Perennial Solar decision by the Court of Appeals of Maryland, which held that the Public Service Commission’s (PSC) statutory scheme, in approving Certificates of Public Convenience and Necessity for 20 megawatts or larger solar energy generating facilities, allows for the preemption of county zoning authority. Shortly before the Perennial decision, the General Assembly changed the Certificate of Public Convenience and Necessity process,
to require the Public Service Commission to give due consideration to the county’s comprehensive plan and zoning ordinances.
A recent Court of Special Appeals decision involving a proposed solar facility in Frederick County demonstrates how Perennial and the due consideration requirement work together. As we go through the facts, we will see how the court has to handle changes in the law related to renewable energy. Because of mistakes made in the Certificate of Public Convenience and Necessity process, the Court of Special Appeals remanded to the PSC to consider the approval considering the court’s ruling.
This decision involves the PSC approval of a Certificate of Public Convenience and Necessity (CPCN) for a 20-megawatt solar generating facility located on 170 acres of land leased in Frederick County and currently zoned for agricultural use. Frederick County had issued an Executive Order in early 2016 putting a 6-month hold on applications for special exceptions for anyone seeking to build a solar generation facility in the county and stating clearly that any special exception granted which did not have visible construction started would be subject to the county zoning code changes, not gaining a special exception. After that order, Frederick County granted a special exemption for the LeGore project, and in October 2016, LeGore applied for a CPCN from the PSC.
In March 2017, the PSC staff recommended granting the LeGore project a CPCN. Later that month, Frederick County introduced a bill that would create zoning requirements for solar facilities and apply to those which had not obtained a CPCN. In May 2017, LeGore agreed to certain conditions on the proposed project before a Public Utility Law Judge as a part of the CPCN process which Frederick County did not participate in. A few days later, Frederick County enacted the zoning change for solar facilities effective July 2017. In early June, the county filed a copy of the zoning change with the Public Utility Law Judge and moved to intervene in early July. A few days later, the Public Utility Law Judge allowed the county to intervene.
In October 2017, a new Maryland state law took effect requiring the PSC to give due consideration to Frederick county’s comprehensive plans and zoning ordinances. Two days later, the Public Utility Law judge issued a proposed order approving LeGore’s CPCN. The PSC affirmed that proposed order in March 2018.
Court of Special Appeals Decision
On appeal, the court had to determine if LeGore had a vested right in the special exception. Prior to granting this exception, Frederick County had issued an Executive Order related to solar development requiring visible construction to have begun, otherwise, any changes made to the County’s zoning ordinances would apply. To the court, this notified LeGore that the special exception was not vested and proceeding with the project was at LeGore’s own risk. LeGore had not started construction before the county made the changes to the zoning requirement for solar facilities. Because LeGore noticed that the special exception was not vested, the court did not see concerns that this violated LeGore’s due process rights or fairness since there was time to address the zoning changes in the proceedings.
The next issue on appeal for the court to consider was whether the PSC gave due consideration to the new county zoning standards for utility-scale solar developments before issuing the CPCN for LeGore’s project. In a previous decision in Perennial Solar, the Court of Appeals pointed out that PSC has to give due consideration to a county’s comprehensive plan, zoning, and other efforts related to the proposed project. While the PSC does have some discretion to preempt the county’s requirements when looking at the county zoning requirements’ impacts on the proposed project, it must first give due consideration to those zoning requirements and the comprehensive plan. The issue here was the PSC never gave due consideration to the county’s zoning changes. The PSC argued the county had waited too long till after the record was closed to intervene in the proceedings. To the court, PSC needed to go back and give due consideration to the zoning changes on LeGore’s proposed project.
For these reasons, the court remanded the proceeding back to the PSC, allowing PSC to determine what weight to give the county zoning changes and fix the issues related to vested rights in the record.
This case highlights the concerns for ensuring that utility-scale renewable energy development fits within the county’s comprehensive plan and zoning requirements and meets the state’s renewable energy needs. The legal changes, in this case, can create confusion, but because of the initial Executive Order, LeGore never gained a vested right to the special exception. Even as counties continue to struggle with what should be allowed, the PSC must still give due consideration to a county’s comprehensive plan and zoning ordinances. Simultaneously, the PSC can preempt the comprehensive plan and county zoning ordinances related to solar facilities but must be clearer in the record when exercising its preemption power over the county zoning ordinances and comprehensive plan after due consideration. We will have to wait and see what the outcome of this will involve in this proposed project.
This work is supported by the Agriculture and Food Research Initiative (AFRI) program, grant no. 2020-68006-31182/project accession no. 1022637, from the U.S. Department of Agriculture, National Institute of Food and Agriculture.
Any opinions, findings, conclusions, or recommendations expressed in this publication are those of the author(s) and should not be construed to represent any official USDA or U.S. Government determination or policy.