It is not often that an appellate opinion starts off quoting The Beatles.
But, this week Maryland’s Court of Appeals began its opinion in Board of County Commissioners of Washington County v. Perennial Solar with: “Here comes the sun, and I say, its all right.”
Since at least 2004, Maryland law has encouraged the development of alternative sources of energy to address greenhouse gases and global warming. Part of that approach is to encourage the use of solar energy generating systems (SEGS), which consist of solar panels that may cover considerable acreage.
The case addresses who gets to decide where such solar farm go. It began when Perennial Solar sought a zoning exception from the Washington County Board of Zoning Appeals under local zoning law to build a SEGS on 86 acres near a rural village. The exception was granted, but then local farmers along with the county board sought to challenge that decision in court.
Perennial then changed tactics and argued that the Court did not have jurisdiction to hear this zoning case, because state law pre-empted this area of law and took precedence over local zoning ordinances. It argued that it was up to the State Public Service Commission (PSC) to decide where SEGS are to be placed in Maryland, and the trial court agreed and dismissed the case. The intermediate appellate court affirmed, and the Court of Appeals did likewise.
The Court of Appeals noted that in deciding if a state law pre-empted a given issue and took precedence over local laws like zoning ordinances, the court needed to decide how comprehensively the General Assembly had legislated in the field at issue. It reviewed the history of Maryland laws that seek to promote renewable energy, finding that the legislature had given the PSC the power to approve the construction and location of power generating stations.
The court held that state law did pre-empt this field. While the PSC was required to consider local land use interests, it was the ultimate decision-maker. Local governments, therefore, do not have the authority to overturn decisions about where solar farms can go. If the PSC decides, it is all right.
Thomas Patrick Ryan is a partner in the Rockville law firm of McCarthy Wilson, which specializes in civil litigation.