Board of County Commissioners of Washington County, Maryland v. Perennial Solar, LLC,
No. 66, September Term, 2018, Opinion by Booth, J.


MUNICIPAL CORPORATIONS – IMPLIED PREEMPTION – CONCURRENT
AND CONFLICTING EXERCISE OF POWER BY STATE AND LOCAL
GOVERNMENT

State law impliedly preempts local zoning regulation of solar energy generating systems
(“SEGS”) that require a certificate of public convenience and necessity (“CPCN”).
Maryland Code, Public Utilities Article § 7-207 grants the Maryland Public Service
Commission broad authority to determine whether and where a SEGS may be operated.
Circuit Court for Washington County
Case No.: 21-C-15-055848
Argued: May 2, 2019

                                                                                           IN THE COURT OF APPEALS

                                                                                                  OF MARYLAND


                                                                                                        No. 66

                                                                                               September Term, 2018


                                                                                    BOARD OF COUNTY COMMISSIONERS
                                                                                   OF WASHINGTON COUNTY, MARYLAND

                                                                                                          v.

                                                                                            PERENNIAL SOLAR, LLC


                                                                                                 Barbera, C.J.
                                                                                                 *Greene
                                                                                                 McDonald
                                                                                                 Watts
                                                                                                 Hotten
                                                                                                 Getty
                                                                                                 Booth,

                                                                                                        JJ.


                                                                                                Opinion by Booth, J.


                                                                                          Filed: July 15, 2019

                                                                                   *Greene, J., now retired, participated in the
                                                                                   hearing and conference of this case while an
 Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
                                                                                   active member of this Court; after being recalled
                                                                                   pursuant to the MD. Constitution, Article IV,
                            2019-07-15
                            15:07-04:00                                            Section 3A, he also participated in the decision
                                                                                   and adoption of this opinion.
Suzanne C. Johnson, Clerk
       “Here comes the sun, and I say, It’s all right.”

                            -The Beatles, “Here Comes the Sun”

       This case involves the intersection of the State’s efforts to promote solar electric

generation as part of its renewable energy policies, and local governments’ interest in

ensuring compliance with local planning and zoning prerogatives. In this matter, we are

asked to determine whether state law preempts local zoning authority with respect to solar

energy generating systems that require a Certificate of Public Convenience and Necessity

(“CPCN”) issued by the Maryland Public Service Commission.

       This case began with an application by Perennial Solar, LLC (“Perennial”) to the

Washington County Board of Zoning Appeals (“Board”) for a special exception and variance

to construct a Solar Energy Generating System (“SEGS”) adjacent to the rural village of

Cearfoss in Washington County, Maryland. After the Board granted the variance and special

exception, a group of aggrieved landowners sought judicial review of the Board’s decision

in the Circuit Court for Washington County. The Board of County Commissioners of

Washington County, Maryland (“Washington County” or “the County”) intervened in the case.

       While the petition for judicial review was pending, Perennial filed a motion for

pre-appeal determination challenging the subject matter jurisdiction of the Circuit Court for

Washington County on the ground of state law preemption by implication. Prior to

considering the merits of the Board’s decision, a hearing was held on Perennial’s motion.

The circuit court granted the motion and determined that Maryland Code, § 7-207 of the

Public Utilities Article (“PU”) preempts the Washington County Zoning Ordinance and that

the Public Service Commission (“PSC”) has exclusive jurisdiction to approve the type of
SEGS proposed by Perennial. Washington County appealed the case to the Court of Special

Appeals. In a reported opinion, the intermediate appellate court affirmed the judgment of

the circuit court. Bd. of Cty. Comm’rs of Washington Cty., et al. v. Perennial Solar, LLC,

239 Md. App. 380 (2018).

       Washington County petitioned this Court for a writ of certiorari. We granted

certiorari to consider the following question:1

              Does state law preempt local zoning authority with respect to
              solar energy generating systems that require a Certificate of
              Public Convenience and Necessity issued by the Maryland
              Public Service Commission?

For the reasons set forth herein, we answer in the affirmative and affirm the judgment of

the Court of Special Appeals.

              I.     FACTUAL AND PROCEDURAL BACKGROUND

       Perennial filed an application in September of 2015 with the Board for a special

exception and variance2 to construct a SEGS3 on two contiguous farms totaling 86 acres.



       1
         We have rephrased the question for clarity. The question presented in the writ of
certiorari was:

              Whether local zoning authority is preempted by state law with
              respect to the approval and location of Solar Energy
              Generating Systems such as the SEGS at issue in this case.
       2
         Perennial’s variance request was to reduce the internal setback line between the
two contiguous properties from the required distance of 50 feet to 0 feet, to allow the rows
of solar arrays to cross the property line without interference.
       3
         Article 28A of the Washington County Zoning Ordinance defines a SEGS as “a
grid-tie solar facility consisting of multiple solar arrays whose primary purpose is to


                                              2
The farms are adjacent to Cearfoss, a community designated as a Rural Village 4 in the

Washington County Comprehensive Plan. The proposed site is located in the Agricultural-

Rural (“AR”) zoning district5 in the Washington County Zoning Ordinance (“Zoning

Ordinance”). The Zoning Ordinance permits SEGS as a land use in the AR zoning district

by special exception.      Perennial’s SEGS is designed to produce ten megawatts of

electricity, all of which is to be sold and transferred offsite to a wholesale electricity market.

The electricity generated by the SEGS would be enough to power 2,100 homes.

       The Board held a public hearing on Perennial’s application in October of 2015.

Testimony was given by witnesses in favor of and in opposition to Perennial’s application.6

The Board also accepted written evidence from both sides relating to the application.


generate electricity for distribution and/or sale into the public utility grid and not for onside
consumption.”
       4
          The Washington County Comprehensive Plan defines “Rural Villages” as
unincorporated areas of the county which “are definable on the landscape and contribute
to the unique character of Washington County. They usually include a small core of a
residential neighborhood associated with a retail establishment or an institution such as a
post office, elementary school, church or fire station.” Cearfoss has been designated in the
Comprehensive Plan as a Rural Village, which presents an opportunity to provide growth
through the use of infill development and utilization of existing infrastructure. The
Comprehensive Plan states that “[t]houghtful site planning and design based on the
traditional rural character should provide for the commercial needs of the rural area in a
manor [sic] that better reflects the rural area’s unique and special character.”
       5
         Under Article 5A of the Washington County Zoning Ordinance, the Agricultural-
Rural (AR) zoning district is intended “to provide for continued farming activity and the
many uses that do not require public water and sewage facilities and which may be more
suitably located outside of the urban-type growth of the larger communities of the County.”
       6
        The opposition witnesses, many of whom lived in the immediate neighborhood,
expressed concerns that the SEGS project would adversely impact their property values,


                                                3
      After considering the matter for two weeks, the Board met, deliberated, and granted

the request for a special exception and a variance.7 The Board issued a written opinion in

November of 2015 in which it determined, among other things, that the intended use

conforms to the Washington County Comprehensive Plan and is compatible with the existing

neighborhood. The Board found that the site is not located within a Priority Preservation

Area, a Rural Legacy Area, or within the Antietam Overlay Zone, which are all areas where

SEGS are prohibited under the Washington County Zoning Ordinance. After describing the

evidence and testimony, the Board concluded that there was no probative evidence showing

that the SEGS would have any greater adverse effects above and beyond those inherently

associated with the special exception use irrespective of its location within the zone. The

Board granted the variance from the minimum setback to allow the SEGS to be built over

the common property line separating the two contiguous parcels, finding that strict

compliance with the setback requirements would cause practical difficulty for the project

and that a variance to a zero-foot setback would not cause any harm to public safety or

welfare.

      A group of aggrieved landowners sought judicial review of the Board’s decision in

the Circuit Court for Washington County. Washington County intervened in the case.

While the petition for judicial review was pending, Perennial filed a motion for pre-appeal




create negative visual impacts, generate glare, and create detrimental environmental and
health impacts.
      7
        The Board granted Perennial’s special exception application by a vote of 3-1 and
granted the application for a variance by a vote of 4-0.

                                            4
determination challenging the circuit court’s subject matter jurisdiction on the ground of

state law preemption by implication. Perennial argued that under PU § 7-207, the PSC has

exclusive jurisdiction for approval of the proposed SEGS, including site location.

Washington County and the aggrieved landowners opposed the motion, arguing that the

legislative intent reveals that local regulation of SEGS, and particularly, their location, is

not preempted by state law.

       After a hearing, the circuit court granted Perennial’s motion, holding that local

zoning authority is preempted by PU § 7-207. The circuit court dismissed the petition for

judicial review and remanded the matter to the Board with instructions to vacate its opinion

and the grant of a special exception and variance. Washington County and the aggrieved

landowners appealed the decision of the circuit court to the Court of Special Appeals. In a

reported opinion, the intermediate appellate court applied Maryland case law outlining the

applicable factors when considering the doctrine of implied preemption. Perennial Solar,

239 Md. App. 380. The Court of Special Appeals noted that “preemption by implication

occurs when a local law ‘deals with an area in which the [General Assembly] has acted with

such force that an intent by the State to occupy the entire field must be implied.’” Id. at 386

(quoting Talbot Cty. v. Skipper, 329 Md. 481, 488 (1993)). The Court stated that when

undertaking a preemption analysis, its “inquiry is focused on ‘whether the General Assembly

has manifested a purpose to occupy exclusively a particular field.’” Id. (quoting East Star,

LLC v. Cty. Comm’rs of Queen Anne’s Cty., 203 Md. App. 477, 485 (2012)).

       After reviewing the comprehensive statutory scheme associated with the PSC’s

review and approval process for generating stations, including the broad authority


                                              5
conferred by the General Assembly upon the PSC, the Court of Special Appeals held as

follows:

             Based on the comprehensiveness of [PU] § 7-207, local zoning
             regulations and comprehensive plans are impliedly preempted
             by state law for SEGSs requiring a CPCN. 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.

Perennial Solar, 239 Md. App. at 390. The intermediate appellate court noted that this

Court reached the same conclusion in Howard County v. Potomac Electric Power Co., 319

Md. 511 (1990). The Court of Special Appeals concluded its analysis in Perennial Solar

by stating that “following the logic of the Court of Appeals in Howard County . . . and the

legislative intent discussed supra, we hold that the PSC preempts, by implication, local

zoning regulation and thus affirm the circuit court.”8 Perennial Solar, 239 Md. App. at

392. For the reasons set forth herein, we affirm the judgment of the Court of Special

Appeals.




      8
         As part of its appeal to the Court of Special Appeals, Washington County argued
that Perennial is not governed by the PSC because “[t]he Public Service Commission
regulates only solar photovoltaic systems operated by public service companies.” Bd. of
Cty. Comm’rs of Washington Cty., et al. v. Perennial Solar, LLC, 239 Md. App. 380, 392
(2018). The Court of Special Appeals rejected this argument and held that the statute does
not limit the PSC’s jurisdiction only to public service companies. 239 Md. App.at 392-393.
While the issue of the PSC’s jurisdiction over the proposed generating stations was not
presented in Washington County’s Petition for Writ of Certiorari to this Court, the Amicus
Curiae Petitioners, Queen Anne’s County and Kent County raised the issue in their brief
and during oral arguments. As discussed infra, we agree with the Court of Special Appeals
on this point.

                                            6
                             II.    STANDARD OF REVIEW

       This case involves a purely legal issue—whether PU § 7-207, which grants the PSC

general regulatory powers over generating stations, including SEGS, preempts local zoning

authority with respect to the location and construction of SEGS. As this determination

involves a question of law, our standard of review is de novo. See Koste v. Town of Oxford,

431 Md. 14, 25 (2013) (“When an issue involves an interpretation and application of a

Maryland constitutional, statutory or case law, an appellate court must determine whether

the trial court’s conclusions are legally correct under a de novo standard of review.”)

(internal citations omitted); see also Schisler v. State, 394 Md. 519, 535 (2006).

                           III.    PARTIES’ CONTENTIONS9

       Perennial’s contention is that the PSC’s regulatory authority established by the

Public Utilities Article over the siting and construction of SEGS preempts local zoning

approval by implication. Perennial argues that the General Assembly has given the PSC

broad authority to take final action to determine the siting of SEGS which require a

certificate of public convenience and necessity, and that the comprehensive nature of the

statute indicates the Legislature’s intent to occupy the entire field. In support of its position

that PU § 7-207 preempts local zoning ordinances in the context of site selection and

approval of SEGS, Perennial relies upon Howard County v. Potomac Electric Power Co.,


       Amicus briefs were also filed in this case by Queen Anne’s County and Kent
       9

County (in support of Washington County’s position) as well as the Maryland Public
Service Commission and the Utility Scale Solar Energy Coalition of Maryland (in support
of Perennial’s position). We shall collectively refer to Washington, Kent and Queen
Anne’s County as the “Counties”.


                                               7
et al., 319 Md. 511 (1990), in which this Court held that Article 78, § 54A—the same

statute at issue in this case10—preempted by implication county zoning ordinances

regulating the location and construction of overhead transmission lines in excess of 69,000

volts.

         As additional support for its preemption argument, Perennial contends that recent

legislative amendments to PU § 7-207 enacted by the General Assembly in 2017 reinforce

the Legislature’s intent that local governments have an advisory role in the CPCN process,

but that the PSC has the ultimate decision-making authority. Perennial further argues that

the General Assembly’s recent rejection of alternative proposed amendments to PU § 7-207,

which would have required that an applicant receive zoning approval from a local

government prior to the PSC issuing a CPCN, reinforces the General Assembly’s intent to

preempt local zoning authority.

         Washington County argues that the express power granted by the General Assembly

to local and municipal zoning authorities to implement planning and zoning controls has

not been expressly or impliedly preempted by state law with respect to the approval and

location of SEGS. The County relies upon Ad + Soil, Inc. v. County Commissioners of

Queen Anne’s County, 307 Md. 307 (1986), contending that Ad + Soil stands for the

proposition that the doctrine of preemption does not allow for preemption in part. Because

the General Assembly has prescribed a role for local government in the CPCN process

under PU § 7-207, including the consideration of local planning and zoning, the County


         Article 78 was renamed and re-codified as Public Utilities Article (“PU”) § 7-207
         10

as a result of a code revision. 1998 Maryland Laws Ch. 8 (S.B. 1).

                                             8
argues that the General Assembly has not evidenced an unequivocal intent to preempt the

“entire field” or to preclude local legislative bodies from enacting any ordinances and laws

pertaining to the location of SEGS in their respective jurisdictions.

       The County attempts to distinguish Howard County on the basis that: (1) the case

dealt with the siting and construction of a 500,000 volt transmission line extending for 10.5

miles through two counties, thus differing in scope, size, coverage area, environmental

impact, and purpose; (2) under the facts of Howard County, PEPCO applied for and

received a CPCN well in advance of the county special exception approval processes in the

respective jurisdictions; and (3) unlike the Washington County Zoning Ordinance, which

permits SEGS by special exception and incorporates compliance with PSC regulations by

express reference, the county ordinances at issue in Howard County purported to vest

extensive authority in the local zoning boards over the construction of overhead

transmission lines exceeding 69,000 volts, to the potential impediment of the PSC’s

discharge of its statutory authority.

       Finally, the County argues that the 2017 legislative amendments to PU §7-207, as

well as the PSC’s own regulations, support the County’s position that local zoning

ordinances are not preempted by the statutory CPCN application and approval process.

                                   IV.    DISCUSSION

       This Court has frequently explained that Maryland state law may preempt local law

in one of three ways: (1) preemption by conflict; (2) express preemption; or (3) implied

preemption. Altadis U.S.A., Inc. v. Prince George’s Cty., 431 Md. 307, 311 (2013); Talbot




                                             9
Cty. v. Skipper, 329 Md. 481, 487-488 (1993); Allied Vending, Inc. v. City of Bowie, 332

Md. 279, 297–298 (1993).

       Perennial argues that the local zoning ordinances are preempted by implication.

State law can preempt local ordinances by implication when “the ordinance deals with an

area in which the General Assembly has acted with such force that an intent to occupy the

entire field must be implied.” Howard Cty., 319 Md. at 522 (cleaned up) (quoting Bd. of

Child Care, et al. v. Harker, et al., 316 Md. 683, 697 (1989)); see also Talbot Cty. v.

Skipper, 329 Md. at 488.

       There is no particular formula for determining whether the General Assembly

intended to preempt an entire area. Howard Cty., 319 Md. at 523. Nevertheless, we have

stated repeatedly that “[t]he primary indicia of legislative purpose to preempt an entire field

of law is the comprehensiveness with which the General Assembly has legislated in the

field.” Id. (quoting Bd. v. Harker, 316 Md. at 696–697); see also Altadis, 431 Md. at 316

(holding that state law comprehensively regulated the packaging, sale, and distribution of

tobacco products, and thus, preempts county ordinances regulating the packaging of

cigars); Skipper, 329 Md. at 489, 492 (holding that state comprehensive legislation

regulating virtually all aspects of sewage sludge utilization was “strongly indicative of the

legislative intent to preempt this entire field from local regulation”); Allied Vending, 332

Md. at 310 (holding that the “General Assembly has manifested an intent for the State to

completely occupy the field of the sale of cigarettes through vending machines rendering

any local or municipal ordinances in this area constitutionally invalid”).




                                              10
      In addition to reviewing the comprehensiveness of the legislation that is the subject

of the preemption analysis, in Allied Vending, we summarized the secondary factors in

which the Court has previously considered in determining whether a local law is preempted

by implication:

             1) whether local laws existed prior to the enactment of state
             laws governing the same subject matter, 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 local government has been
             addressed by state legislation, and 7) whether a two-tiered
             regulatory process existing if local laws were not preempted
             would engender chaos and confusion.

Allied Vending, 332 Md. at 299–300 (internal citations omitted).

      With the principles of implied preemption in mind, we turn to the language of the

Public Utilities Article and consider the duties and authority delegated to the PSC by the

General Assembly in the area of solar energy generating station approvals.

      A.     Statutory Framework of the Public Utilities Article

      In response to the growing concern over climate change, the Maryland General

Assembly enacted legislation intended to reduce Maryland greenhouse gas emissions. The

legislation included a specific intent to move the Maryland energy market away from




                                            11
historical reliance on fossil fuels and enacted a Renewable Energy Portfolio Standard

(“RPS”)11. See Maryland Code, Environment Article (“EN”) § 2-1201, et seq.; PU § 7-701.

       The RPS statute, PU § 7-701, et seq., was originally enacted in 2004 to facilitate the

State’s transition to renewable energy sources. The objective of the RPS statute is to

recognize and develop the benefits associated with a diverse collection of renewable energy

supplies to serve Maryland. As part of its enactment, the General Assembly specifically

determined that: “the benefits of electricity from renewable energy resources, including

long term decreased emissions, a healthier environment, increased energy security, and

decreased reliance on and vulnerability from imported energy sources, accrue to the public

at large;” and that the State needed to “develop a minimum level of these resources in the

electricity supply portfolio of the State.” PU § 7-702(b). The RPS includes specific targets

for the share of electricity coming from solar electric generation. PU § 7-703.

       In 2009, the Maryland General Assembly enacted the Greenhouse Gas Emissions

Reduction Act of 2009 (“GRRA”), a law that requires the State to reduce greenhouse gas

emissions from a 2006 baseline by 25% by 2020 and by 40% by 2030. EN §§ 2-1204,

2-1204.1; PU § 7-701, et seq. During the 2019 legislative session, the General Assembly

adopted the Clean Energy Jobs Act, which increases the State’s RPS target to 50% by 2030.

Senate Bill (“S.B.”) 516, 2019 Reg. Sess. (cross-filed as H.B. 1158). The Clean Energy



       11
          “Renewable energy portfolio standard” is defined as “the percentage of energy
sales at retail in the State that is to be derived from Tier 1 renewable sources and Tier 2
renewable resources in accordance with §7-703(b) of this subtitle.” PU § 7-701(o). Solar
energy is a Tier 1 renewable resource. PU § 7-701(r).


                                             12
Jobs Act also includes a significant increase in electricity sales derived from solar energy

from 1.9% to 5.5% in 2019, and to 14.5% in 2028. Id.

       The General Assembly has delegated to the PSC12 the authority to “implement a

renewable energy portfolio standard” that applies to retail electricity sales in the State by

electricity suppliers consistent with the specific timetable established by the statute. PU § 7-


       12
           The Maryland Public Service Commission is an independent unit of the
Executive Branch of State Government of Maryland. PU § 2-101, et seq. Pursuant to
PU § 2-112, the General Assembly has conferred upon the PSC broad jurisdiction and
broad general powers over “each public service company that engages in or operates a
utility business in this State. . .,” which applies “[t]o the full extent that the Constitution
and laws of the United States allow . . . .” It is undisputed that Perennial is not a “public
service company” as defined by PU § 1-101(x). Queen Anne’s County and Kent County
argue that the PSC lacks jurisdiction over companies like Perennial, which undertake
large scale solar projects because they do not fall within the definition of “public service
companies.” We do not read the statute so narrowly. The Legislature has expressly stated
that the specific regulatory and supervisory powers over public utility companies do not
limit the “general powers and duties” of the PSC provided for elsewhere in the statute.
See PU § 2-113(b). One such general power and duty delegated to the PSC is the specific
regulatory authority to approve “generating stations” through the certificate of public
convenience and necessity (“CPCN”) process. See PU § 7-207. Under the statute, “a
person may not begin construction in this State of a generating station” until a CPCN is
obtained. PU § 7-207(b)(1)(i). A “person” is defined as an “individual, receiver, trustee,
guardian, personal representative, fiduciary, or representative of any kind and any
partnership, firm, association, corporation, or other entity.” PU § 1-101(u). Accordingly,
we disagree with the assertion that the applicable statute (PU § 7-207) only applies to
public service companies. Perennial is “a person” seeking to construct a generating
station in Maryland and therefore, is required to obtain a CPCN from the PSC. The PSC’s
jurisdiction over solar photovoltaic systems is also evident from the fact that the General
Assembly created an exception from the CPCN process for certain smaller scale solar
facilities. See PU §§ 7-207(b)(1)(ii); 7-207.1(a) (creating an exemption process from the
CPCN requirement for certain on-site generators); PU § 7-207.2(a) (imposing a deposit
requirement for a generating station exempted under § 7-207.1 that “has the capacity to
produce at least 2 megawatts of electricity from a solar photovoltaic system”) (emphasis
added). The General Assembly would not have created an exemption for certain solar
facilities from the CPCN requirements if solar facilities were not subject to the CPCN
requirements in the first place.


                                              13
703(a). On an annual basis, the PSC is required to report to the General Assembly on the

status of the implementation of the RPS program, including the availability of Tier 1

renewable sources such as solar energy. PU § 7-712.

       Consistent with the PSC’s duties to ensure compliance with the RPS, including the

specific targets for the share of electricity coming from solar electric generation, the

General Assembly has also delegated to the PSC the exclusive authority to approve

generating stations13 in Maryland. Unless exempt by the statute,14 a generating station

cannot be constructed unless the PSC issues a CPCN, which is only issued after a detailed

application and approval process. PU § 7-207.


       13
           While the statute does not define “generating station,” the regulations
promulgated by the PSC define a “generating station” as: “property or facilities located in
Maryland constituting an integral plant or unit for the production of electric energy,
including any new production unit that would be added to an existing production plant.”
Code of Maryland Regulations (“COMAR”) 20.79.01.02.B(11)(a). Because Washington
County’s Zoning Ordinance refers to “SEGS” and the PU and COMAR refer to “generating
stations,” we use both terms herein when discussing the respective statute and ordinance.
Perennial’s SEGS proposal clearly falls within the definition of “generating station” under
COMAR.
       14
          The General Assembly has created exemptions from the CPCN process for certain
generating stations. PU § 7-207.1(a) creates an exemption from the CPCN requirement for
certain generating stations that: (i) produce less than 70 megawatts and use at least 80% of
the electricity on-site; (ii) are land-based and produce electricity from wind, provided that
the capacity of the generating station does not exceed 70 megawatts; or (iii) produce less
than 25 megawatts and use at least 10% of the electricity produced onsite. PU § 7-207.2
allows an exemption for generating stations that produce at least 2 megawatts of power and
are exempt from the CPCN permit process by PU § 7-207.1. That is, the system must use
at least 10% of the electricity produced on site. Under either of the exemption sections,
while an application is not required to obtain a CPCN, the applicant must still apply for
and receive PSC approval of the exemption. In considering the exemption, the PSC
approves the safety of the system, but not the location. In the instant case, neither of the
exemptions is applicable and the SEGS require a CPCN from the PSC. Washington County
concedes that the SEGS proposed by Perennial require a CPCN from the PSC.

                                             14
       The PSC’s review process of a generating station is extensive. Upon receipt of an

application, the PSC provides notice of the application to: (i) the Maryland Department of

Planning; (ii) the governing body, and if applicable, the executive of each county or

municipal corporation in which a portion of the generating station is proposed to be

constructed; (iii) the governing body of any county or municipal corporation within one-

mile of the proposed location of the generating station; (iv) each member of the General

Assembly representing any part of the county in which any portion of the generating station

is proposed to be constructed; (v) each member of the General Assembly representing any

portion of each county within one-mile of the proposed location of the generating station;

and (vi) all other interested persons. PU § 7-207(c)(1). A copy of the application is also

provided to each appropriate State unit and unit of local government for review, evaluation,

and comment regarding the significance of the proposal to the State, area wide, and local

plans or programs (see PU § 7-207(c)(2)), and to each member of the General Assembly

who is provided with the statutory notice pursuant to PU § 7-207(c)(1). Id.

       The statute requires that the PSC coordinate with and include the local governing

body of the county or municipality in the CPCN public hearing process, and establishes a

public hearing framework designed to ensure input and public comment from interested

persons in the geographic area within which the generating station is being proposed:

              (d) Public hearing. – (1) The Commission shall provide an
              opportunity for public comment and hold a public hearing on
              the application for a certificate of public convenience and
              necessity in each county and municipal corporation in which
              any portion of the construction of a generating station . . . is
              proposed to be located.



                                            15
                 (2) The Commission shall hold the public hearing jointly
              with the governing body of the county or municipal
              corporation in which any portion of the construction of the
              generating station . . . is proposed to be located, unless the
              governing body declines to participate in the hearing.

                 (3)(i) Once in each of the 4 successive weeks immediately
              before the hearing date, the Commission shall provide weekly
              notice of the public hearing and an opportunity for public
              comment:

                     1. by advertisement in a newspaper of general
                        circulation in the county or municipal corporation
                        affected by the application;
                     2. on two types of social media; and
                     3. on the Commission’s website.

                  (ii) Before a public hearing, the Commission shall
              coordinate with the governing body of the county or municipal
              corporation in which any portion of the construction of the
              generating station . . . is proposed to be located to identify
              additional options for providing, in an efficient and cost
              effective manner, notice of the public hearing through other
              media types that are familiar to the residents of the county or
              municipal corporation.

       PU § 7-207.

       Under the express language of the PU, the PSC is the final approving authority for

the siting and construction of generating stations, which require a CPCN, after giving “due

consideration” to the following statutory factors:

              (e) Final action by Commission. – The Commission shall take
              final action on an application for a certificate of public
              convenience and necessity only after due consideration of:

                 (1) the recommendation of the governing body of each
              county or municipal corporation in which any portion of the
              construction of the generating station . . . is proposed to be
              located;



                                            16
                  (2) the effect of the generating station . . . 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 quality and water pollution;
                            and
                      (vii) the availability of means for the required timely
                            disposal of wastes produced by any generating
                            station; and

                  (3) for a generating station:
                      (i) the consistency of the application with the
                            comprehensive plan and zoning of each county or
                            municipal corporation where any portion of the
                            generating station is proposed to be located; and
                      (ii) the efforts to resolve any issues presented by the
                            county or municipal corporation where any portion
                            of the generating station is proposed to be located.

       PU § 7-207 (emphasis added).

       B.     Applicable Provisions of the Washington County Zoning Ordinance

       Not surprisingly, as the State’s energy market moves toward renewable energy

sources, such as solar energy, land use conflicts often arise, particularly in rural areas where

land historically zoned for agricultural use is proposed as a site for large scale solar

projects. With the proliferation of solar facilities, counties such as Washington, Kent and

Queen Anne’s Counties (collectively, “the Counties”) have adopted specific solar

regulations as part of their planning and zoning authority.15


       15
         In 2011, each of these jurisdictions adopted amendments to their respective land
use ordinances identifying suitable locations for utility scale solar facilities in their


                                              17
       The Counties argue that PU § 7-207 does not preempt their right to regulate SEGS

through their planning and zoning authority conferred by the Express Powers Act, Maryland

Code, Local Government Article (“LG”) § 10-324(b)(1), in which the General Assembly has

determined that it is a state policy that “the orderly development and use of land and

structures requires comprehensive regulation through the implementation of planning and

zoning controls.” The General Assembly has expressly delegated planning and zoning

authority to local government. LG § 110-324(b)(2); Maryland Code, Land Use Article

(“LU”) § 4-101(a)(2).

       As part of our preemption analysis, we must consider the provisions of the

Washington County Zoning Ordinance, which the County contends apply to Perennial’s

SEGS application in this instance.

                     Zoning Ordinance Provisions Specific to SEGS

       The pertinent provision of the County’s Zoning Ordinance is Section 4.26, added

by amendment in 2011, which permits SEGS as a land use by special exception in certain

zoning districts in the County.16

       Section 4.26 of the Zoning Ordinance also provides specific design standards for

SEGS, including minimum lot size, buffer yards, controlled access, electrical wire

placement, diffused lighting and glare, appearance, color and finish, signage, noise,


counties, and also adopted setbacks from neighboring properties and public roads, as well
as rigorous landscaping and screening requirements intended to preserve agricultural vistas
and the views of neighboring property owners.
       16
         Under the County’s Zoning Ordinance, SEGS are prohibited as a use in Priority
Preservation Areas, Rural Legacy Areas, and Antietam Overlay Zones.

                                            18
electromagnetic interference, code compliance, and the establishment of a reclamation or

decommissioning plan. The design standards also expressly require that the SEGS comply

with PSC regulations. Zoning Ordinance, Section 4.26(A)(13). The standards also require

that an applicant obtain PSC approval for a CPCN-exempt SEGS prior to construction and

the issuance of a county building permit. Id., Section 4.26(A)(14).

                        Standards Governing Special Exceptions

      As noted supra, SEGS are permitted in the Agricultural (Rural) Zoning District by

special exception. Under Article 28A of the Zoning Ordinance, a “special exception” is

defined as “[a] grant of a specific use that would not be appropriate generally or without

restriction; and shall be based upon a finding that the use conforms to the plan and is

compatible with the existing neighborhood.” Section 25.6 of the Zoning Ordinance sets

forth the standards which the Washington County Board of Zoning Appeals is required to

apply when considering a special exception application:

             Where in these regulations certain powers are conferred upon
             the Board or the approval of the Board is required before a
             permit may be issued, or the Board is called upon to decide
             certain issues, the Board shall study the specific property
             involved, as well as the neighborhood, and consider all
             testimony and data submitted, and shall hear any person
             desiring to speak for or against the issuance of the permit.
             However, the application for a permit shall not be approved
             where the Board finds the proposed building, addition,
             extension of building or use, sign, use or change of use would
             adversely affect the public health, safety, security, morals or
             general welfare, or would result in dangerous traffic
             conditions, or would jeopardize the lives or property of people
             living in the neighborhood. In deciding such matters, the
             Board shall consider any other information germane to the case
             and shall give consideration to the following, as applicable:



                                           19
              (a) The number of people residing or working in the immediate
                  area concerned.

              (b) The orderly growth of a community.

              (b) Traffic conditions and facilities.

              (c) The effect of such use upon the peaceful enjoyment of
                  people in their homes.

              (e) The conservation of property values.

              (f) The effect of odors, dust, gas, smoke, fumes, vibrations,
                  glare[,] and noise upon the use of surrounding property
                  values.

              (g) The most appropriate use of land and structure.

              (h) Decision of the courts.

              (i) The purpose of these regulations as set forth herein.

              (j) Type and kind of structures in the vicinity where public
                  gatherings may be held, such as schools, churches and the
                  like.

       The special exception factors are applied by the Board against the backdrop of the

case law governing special exceptions.        The seminal case in Maryland on special

exceptions is Schultz v. Pritts, 291 Md. 1 (1981). See People’s Counsel v. Loyola Coll.,

406 Md. 54 (2008) (describing Schultz and its progeny). In Schultz, the Court summarized

the special exception use as follows:

              The special exception use is part of the comprehensive zoning
              plan sharing the presumption that, as such, it is in the interest
              of the general welfare, and therefore valid. The special
              exception use is a valid zoning mechanism that delegates to an
              administrative board a limited authority to allow enumerated
              uses which the legislature has determined to be permissible
              absent any fact or circumstance negating the presumption. The


                                             20
              duties given the Board are to judge whether the neighboring
              properties in the general neighborhood would be adversely
              affected and whether the use in the particular case is in
              harmony with the general purpose and intent of the plan.

291 Md. at 11; see also Loyola, 406 Md. at 88.

                             Standards Governing Variances

       Perennial’s application involved not only a special exception but also a request for

a variance from the strict application of the Zoning Ordinance to enable Perennial to

construct its solar arrays over the internal property lines. We have held that “[a] variance

refers to administrative relief which may be granted from the strict application of a

particular development limitation in the zoning ordinance (i.e., setback, area and height

limitations, etc.).” Mayor & Council of Rockville v. Rylyns Enters., Inc., 372 Md. 514, 537

(2002) (quoting Stanley D. Abrams, Guide to Maryland Zoning Decisions, § 11.1 (3d ed.,

Michie 1992)). To obtain a variance under the Washington County Zoning Ordinance, the

applicant must satisfy the following criteria:

              A. Practical Difficulty

                  1. Strict compliance would unreasonably prevent the use
                     of the property for a purposed purpose or render
                     conformance unnecessarily burdensome;

                  2. Denying the variance would do substantial injustice to
                     the applicant and a lesser relaxation than that applied
                     would not give substantial relief; and

                  3. Granting the variance would observe the spirit of the
                     Ordinance and secure public safety and welfare.

              B. Undue Hardship




                                             21
                 1. Strict compliance with the Ordinance would prevent the
                    applicant from securing a reasonable rate of return from
                    or to make reasonable use of the property; and

                 2. The difficulties or hardships are peculiar to the property
                    and contrast with those of other property owners in the
                    same district; and

                 3. The hardship is not the result of the applicant’s own
                    actions.

       Zoning Ordinance § 25.56.

                   Board of Zoning Appeals Process and Procedures

       Before an applicant receives a special exception or a variance, a hearing must be

held before the Board of Zoning Appeals, where “any party may appear and be heard in

person or by agent or attorney.” Zoning Ordinance § 25.52. Prior to the hearing, the

property which is the subject of the application is posted with a zoning notice describing

the requested relief, and the public hearing is advertised in two consecutive issues of a

newspaper having a general circulation in the County at least 15 days prior to the hearing.

Id. After a public hearing, the Board is required to render a decision within 30 days.

Zoning Ordinance § 25.55. Any person or persons aggrieved by the decision of the Board

may appeal that decision to the Circuit Court for Washington County in the manner

prescribed by LU § 4-401.

       C.     Preemption Analysis

       Comparing the comprehensive provisions of PU § 7-207 against the applicable

provisions of the Zoning Ordinance, both the statute enacted by the General Assembly and

the local ordinance adopted by the County attempt to regulate the siting and location of



                                            22
SEGS. Under the statute, the PSC is given the final authority to approve the location of

SEGS, while under the Zoning Ordinance, the Board has the final authority to approve site-

specific special exceptions and variances for the construction of SEGS. Clearly, only one

of these bodies can have the final say on the matter.

           The Comprehensive Statutory Scheme of Solar Energy Regulation
                              Pursuant to PU § 7-207

       Applying the principles of implied preemption to PU § 7-207, it is clear that the

General Assembly intended to vest final authority with the PSC for the siting and location

of generating stations requiring a CPCN. The statute manifests the general legislative

purpose to create an all-compassing statutory scheme of solar energy regulation. That

statute is “extensive and embrace[s] virtually the entire area involved.” Howard Cty., 319

Md. at 523 (quoting Nat’l Asphalt v. Prince George’s Cty., 292 Md. 75, 78 (1981)).

       The statute grants the PSC broad authority to determine whether and where SEGS

may be constructed. In making such a determination, the PSC undertakes a multi-faceted

review, which includes input from other state agencies, as well as from local government.

In addition to considering the recommendations of other state agencies, the PSC is also

required to consider the stability and reliability of the system; economics; esthetics; historic

sites; aviation safety; air quality and water pollution; and the availability of means of the

required timely disposal of wastes produced by any generating station. PU § 7-207(e)(2).

Ultimately, the final decision regarding whether to approve a generating station lies

exclusively with the PSC.




                                              23
       The General Assembly’s intent to preempt local government’s zoning approval

authority over generating stations is clear from the plain text of the statute, which

specifically defines the role of local government, as well as planning and zoning

considerations, in the PSC review and approval process. Contrary to Washington County’s

“all or nothing” approach to preemption, the General Assembly has carved out a key role

for local government in the PSC’s review and approval process.

       For example, as part of the CPCN application process, the PSC holds public

hearings within each local jurisdiction where the construction is proposed, with the

governing body of the local jurisdiction invited to jointly preside over and participate in

those hearings. PU §7-207(d). Local land use interests are also designated by statute as a

factor requiring “due consideration” by the PSC in evaluating and approving generating

stations. This includes the “recommendation of the governing body of each county or

municipal corporation in which any portion of the construction of the generating station . . .

is proposed to be located,” PU §7-207(e)(1), as well as several other factors typically

considered in local land use decisions, including esthetics, historic sites, pollution, and

waste disposal. PU §7-207(e)(2) (emphasis added). Although the local governing body’s

recommendations are contemplated with “due consideration”, the final determination

whether to approve a CPCN for SEGS is ultimately made by the PSC.

                Application of Secondary Factors in Preemption Analysis

       While our review of the comprehensive nature of PU § 7-207 leads us to our

conclusion that the General Assembly has acted with such a force in this field that local

zoning authority over generating systems is impliedly preempted, our conclusion is further


                                             24
bolstered by our consideration of the secondary factors that we summarized in Allied

Vending, 332 Md. at 299–300.

       First, as stated above, “state law . . . provide[s] for pervasive administrative

regulation.” Id. PU § 7-207 addresses all regulatory matters associated with the approval

and operation of generating stations, including siting and locational approvals.

       Second, the statute does not “expressly provide concurrent legislative authority to

the local jurisdiction or require compliance with local planning and zoning ordinances.”

Allied Vending, 332 Md. at 299–300. To the contrary, the statute expressly identifies the

local governing body’s role as a participant in a public hearing process, with the ability to

make a “recommendation,” which the PSC is required to give “due consideration” before

taking “final action”. See PU § 7-207(a) and (b). Nor does the statute require that the

applicant receive zoning approval in connection with the CPCN application. Moreover, as

noted infra, in 2017 and 2019, the General Assembly expressly rejected bills intended to

amend the statute to require compliance with local planning and zoning ordinances.

       Third, “the particular aspect of the field sought to be regulated by the local

government”—comprehensive planning and local zoning regulations—“ha[s] been

addressed by the state legislation.” Allied Vending, 332 Md. at 299. The statute gives the

PSC the final approval authority over the siting and location of generating stations—the

same authority sought to be exercised by the local government as part of its special

exception and variance process. The statute also specifically addresses the role of the

comprehensive plan and local zoning regulations in the PSC approval process, which is

that they must be given “due consideration” by the PSC. The statute, however, does not


                                             25
mandate or otherwise require that the local zoning authority approve a generating station

prior to PSC approval.

       Finally, a two-tiered regulatory process as proposed by the County “would

engender chaos and confusion” if local zoning authority was not preempted. Id. at 300.

Under the Zoning Ordinance, the Board’s process for approving a variance and special

exception for Perennial’s SEGS is a process for approving the siting and location of a

SEGS on a particular property.       The Board is required to consider and apply the

comprehensive plan and the zoning ordinance when considering the application. That

process requires a public hearing and a final decision by the Board, which is appealable to

the circuit court.

       By comparison, the PSC approval process also involves a determination of whether

to approve a SEGS at a particular location.17 Thus, a two-tiered process could create

confusion, particularly if the Board does not grant the special exception or variance, or

establishes conditions for the use that are inconsistent with the PSC’s ultimate approval.18

Such an interpretation is consistent with the plain language of the statute, which vests in



       17
         As noted supra, under PU § 7-207, the PSC is required to consider many of the
same factors considered by the Board, including the comprehensive plan and zoning, as
well as esthetics, impact on historical sites, and adverse environmental conditions.
Similarly, the PSC process involves a public hearing in the jurisdiction in which any
portion of the SEGS will be located.
       18
         Indeed, it is easy to imagine future scenarios procedurally similar to this case,
where aggrieved property owners appeal to the circuit court to challenge a Board of
Appeals decision before the applicant obtains a CPCN from the PSC as the ultimate
approving authority. The plain language of the statute does not contemplate such a dual
process.

                                            26
the PSC the authority to take “final action” after giving due consideration to the local

comprehensive plan and zoning regulations.

           Recent Legislative Attempts to Clarify the Role of Local Planning and
                            Zoning in Solar Facilities Approvals

       Our holding that the General Assembly’s intent to preempt local comprehensive

planning and zoning on matters related to the ultimate siting and construction of generating

stations is bolstered by the recent amendments to the statute, as well as our consideration

of the proposed bills, which were rejected. In 2017, the General Assembly further clarified

the role of the local comprehensive plan and zoning regulations and local government input

in the PSC’s solar energy approval process. Specifically, the General Assembly added

language to the statute requiring that the PSC give “due consideration” to the following

additional factors, prior to taking final action on an application for a CPCN for a generating

station:

               (i)    the consistency of the application with the
                      comprehensive plan and zoning of each county or
                      municipal corporation where any portion of the
                      generating station is proposed to be located; and

               (ii)   the efforts to resolve any issues presented by the county
                      or municipal corporation where any portion of the
                      generating station is proposed to be located.

PU § 7-207(e)(3) (the “2017 Amendment”).

       The 2017 Amendment was the result the adoption of 2017 Maryland Laws Ch. 392

(H.B. 1350) (“HB 1350”). At the same time the General Assembly was considering HB

1350, it also considered a competing bill, 2017 H.B. 1592/S.B. 931 (“HB 1592”). The

differences in the competing bills are also instructive to our preemption analysis. See


                                             27
Altadis, 431 Md. at 319 (“The General Assembly’s rejection of bills imposing the same

requirements as the local legislation is significant in a preemption analysis.”) (citing Allied

Vending, supra., 332 Md. at 304; Skipper, supra, 329 Md. at 493).

       As originally drafted, HB 1592 would have, among other things: (1) authorized

counties to adopt specific zoning regulations for the siting of generating stations;

(2) allowed counties to identify viable generating station sites in their respective

jurisdictions; and (3) limited the PSC’s ability to “preempt a local jurisdiction’s zoning

regulations” to circumstances where the PSC “determines that a proposed generating

station is vital to grid integrity; and . . . there is not a viable alternative site authorized under

the zoning regulations.” Therefore, had HB 1592 been enacted, the PSC’s authority to

preempt local zoning regulations would have been significantly restricted.

       Instead, the General Assembly enacted HB 1350, which does not limit the PSC’s

authority to preempt local zoning laws, and instead requires that the PSC give “due

consideration” to the comprehensive plan and zoning laws of the applicable local

jurisdiction prior to taking final action. By enacting the 2017 Amendment, the General

Assembly recognized the importance of the local comprehensive plan and zoning

regulations in considering the placement of SEGS. However, the 2017 Amendment fell

short of shifting the final approving authority from the PSC to the local government for the

siting and location of SEGS.

       During the 2019 legislative session, the General Assembly once again considered

the respective roles of the PSC and the local government at the crossroads of energy

policies and local land use concerns.                 Specifically, the Legislature considered


                                                 28
H.B. 1227/S.B. 997 (“HB 1227”), which would have amended PU § 7-207(e) to require

that the PSC receive from local government “a written statement that the proposed

generating station conforms with all applicable county or municipal zoning land use

requirements” before the PSC could issue a CPCN for a solar photovoltaic system or wind

system.19 Recognizing that HB 1227 would alter the PSC’s preemptive authority, the

Fiscal and Policy Note associated with HB 1227 stated that “[i]n practical terms, the bill

establishes local preemption authority for the siting of solar and wind facilities in the

State.” Id. (emphasis added). Notably, had HB 1227 been enacted, local zoning approval

would have been required as a condition precedent to PSC approval and local zoning would

have preempted the PSC’s approval on matters related to the siting or location of solar

facilities. HB 1227 was defeated in committee.20

       This recent legislative history is significant in our preemption analysis. “If the

General Assembly intended to change the existing law” governing the siting of generating

stations to require zoning approval by the local government in addition to PSC approval,

“it certainly had the opportunity to do so. The failure to enact such measures ‘strongly



       19
          During oral arguments, counsel for Queen Anne’s County and Kent County
advised that he drafted this legislation, which was submitted by the Eastern Shore
Delegation in direct response to the Court of Special Appeals’ preemption holding in this
case. See Perennial Solar, 239 Md. App. 380. The General Assembly had the opportunity
to give local government greater control over the location of solar facilities and declined
to take such action.
       20
          While typically a bill is assigned to one standing committee, given the overlapping
jurisdiction, this particular bill was assigned to two committees—the House Environment
and Transportation Committee, which voted 17-5 against the bill, and the House Economic
Matters Committee, which voted 15-6 against the bill.

                                             29
suggests that there was no intent to allow local governments to enact different . . .

requirements.’” Allied Vending, 332 Md. at 304 (citing Skipper, 329 Md. at 493); see also

Altadis, 431 Md. at 319 (stating that in finding that the state statute governing the sale of

tobacco products preempted a local ordinance, which disallowed the sale of single cigars,

this Court held that “it is noteworthy that the General Assembly has considered bills

prohibiting the sale of single cigars, but they have failed to pass”).

       Considering the 2017 Amendment that was approved and enacted by the General

Assembly, as well as the two bills that were considered but not enacted in the 2017 and

2019 legislative sessions, we conclude that the General Assembly firmly intended that

PU § 7-207 preempt by implication local zoning approval authority over SEGS.

        Consideration of our Holding in Howard County v. Potomac Power and
                         Electric and other Preemption Cases

       While our independent review of PU § 7-207 has caused us to conclude that the

statute preempts local zoning authority with respect to the siting and location of SEGS that

require CPCN approval by the PSC, it is important to note that our holding is consistent

with Howard County v. Potomac Electric Power Co., 319 Md. 511 (1990) with respect to

PSC approval of certain electric transmission lines.

       In Howard County, this Court was asked to determine whether authority granted to

the PSC under Article 78, and § 54A in particular (now PU § 7-207) preempted local land

use and zoning ordinances regulating the location and construction of certain electric

transmission lines. In that case, the PSC issued a CPCN to Potomac Electric Power Co.

(“PEPCO”) authorizing the construction of overhead transmission lines designed to carry



                                              30
in excess of 69,000 volts. Id. at 514. PEPCO then filed a petition with the Boards of

Appeal for both Montgomery and Howard counties for special exceptions under the

respective zoning ordinances, to permit the construction of the transmission lines in each

county. Id. at 514-517. The Montgomery County Board of Appeals granted the special

exception with conditions, while the Howard County Board of Appeals denied it. Id.

       On appeal of both decisions, this Court analyzed the extensive power granted to the

PSC under Article 78, § 54A and held that the statute impliedly preempted local zoning

authority over transmission lines. Id. at 524. In finding that the General Assembly had

preempted local zoning authority over the siting and location of transmission lines, this

Court held that: “[i]n this case, it is clear that, in the field of public utility service, the

General Assembly intended to grant broad powers to the PSC to execute its principal duty

of assuring adequate electrical service statewide.” Id. In reviewing the comprehensiveness

of the PSC statute governing generating stations and transmission lines, we noted that the

General Assembly had given local governing bodies an advisory role in the process:

              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
              regulations from other state agencies and local governing
              bodies are advisory only and not controlling.

Id. at 525–526.

       We also expressed a concern that the two-tiered regulatory process proposed by the

counties involving both the CPCN process at the PSC level, and a special exception process


                                              31
at the county zoning level, could generate confusion and complications, noting that “[n]ot

only could counties impose special conditions upon utilities seeking to construct

transmission lines, but an individual county could effectively thwart the line’s construction

even after the utility had been granted a certificate by the PSC.” Id. at 527.

       Acknowledging the counties’ participatory role and their ability make

recommendations during the PSC public hearing process, we noted that this mechanism

“eliminat[ed] the potential for dual application procedures which may result in

irreconcilably conflicting results. . .” Id. at 528. This Court further recognized that some

of the zoning regulations addressed the same considerations set forth in the statute. Id. We

also found that “[w]hen such an exercise of local authority obstructs the fundamental

purpose of Article 78, we must conclude that these local powers were not intended to exist

concurrently with those of the PSC.” Id.

       Similar to the Counties’ argument in this case, in Howard County, the counties

argued that under their home rule charters, their zoning powers emanate from the authority

granted under the Express Powers Act, LG § 10-324, and that under Ad + Soil, “evidence

of a countervailing legislative purpose to prohibit local zoning control ‘must be very strong

indeed.’” Id. (citing Ad + Soil, 307 Md. at 334). In response to the counties’ argument,

we held that “[w]hile that assertion may be true in the context of many areas of legislation,

it is not so in the field of regulation broadly entrusted to the PSC.” Id. at 528–529. We

stated that under the Express Powers Act, the statute provides that “the powers granted to

the county pursuant to this paragraph shall not be construed . . . [t]o preempt or supersede

the regulatory authority of any State department or agency under any public general law.”


                                             32
Id. (quoting the Express Powers Act, formerly Article 25A, § 5(X)(2)(v), now LG § 10-

324(c)(4)). We held that “allowing counties to require special permits of utility companies

even after they qualify for a certificate from the PSC would sanction an authority superior

to that of the PSC. In such cases, the statutory powers of the PSC would effectively be

bridled if its decisions contravened the actions of local bodies.” Id. at 529.

       Washington County argues that Howard County is distinguishable from this case in

three ways. First, Washington County argues that Howard County should not control the

preemption analysis because that case dealt with the siting and construction of a

500,000-volt transmission line running 10.5 miles through two counties. The County

argues that the Court should decline to follow Howard County because the projects differ

significantly in scope, size, coverage area, environmental impact, and purpose. SEGS of

the type at issue in this case are generally small facilities with local impact as opposed to

multi-jurisdictional or regional infrastructure. Accordingly, the County argues that the

determination of compatibility for siting such facilities is particularly apt for the exercise

of local zoning authority.

       While it is true that transmission lines may be different from generating stations as

far as their scope, size, coverage area, environmental impact, and purpose, the General

Assembly has enacted a statute creating the same approval process for both types of

structures, with the PSC as the final approving authority for their siting and location. See

PU § 7-207, titled “Generating stations or transmission lines – General certification

procedure.” The General Assembly has chosen to treat the approval of transmission lines




                                             33
and generating stations, including large scale solar projects, in the same manner, and it is

not within our province to change it.

       Washington County’s second attempt to distinguish Howard County is based on its

procedural history. In Howard County, PEPCO received its CPCN and subsequently

applied for its special exceptions. Here, Perennial applied for and received its special

exception and variance prior to receiving its CPCN. We do not find significance in the

order in which approvals were sought or obtained. Under either scenario, the local

government could deny a special exception application for the generating station that is

approved by the PSC, thereby “sanction[ing] an authority superior to that of the PSC. In

such cases, the statutory powers of the PSC would be effectively bridled if its decisions

contravened the actions of local bodies.” Howard County, 307 Md. at 529. To condition

the construction of a SEGS upon the approval of a special exception or variance by the

Board of Zoning Appeals is antithetical to the express language of PU § 7-207(e), which

vests final approval with the PSC.

       Finally, Washington County attempts to distinguish Howard County by suggesting

that the county zoning ordinances in that case purported to vest extensive authority in the

local zoning boards over the construction of overhead transmission lines exceeding 69,000

volts to the potential impediment of the PSC’s discharge of its statutory authority. In

contrast, here, the County’s Zoning Ordinance permits SEGS by special exception and

incorporates compliance with PSC regulations by express reference.

       While there are differences between the Washington County Zoning Ordinance and

the county zoning ordinances at issue in Howard County, such differences do not change


                                            34
our analysis. In Howard County as well as the instant case, if the Board of Appeals denied

an applicant’s request, the Board would be the final approving authority rather than the

PSC. Such a result is inconsistent with the authority granted under the statute to the PSC.

       Washington County also argues that under Ad + Soil, preemption can only occur

when the General Assembly reserves for itself “exclusive dominion over an entire field of

legislative concern” and that “[w]hen properly invoked, the doctrine precludes local

legislative bodies from enacting any legislation whatsoever in the pre-empted field.” 307

Md. at 324 (emphasis added). The County argues that because the statute contemplates

recommendations from the local legislative body, as well as consideration of the

comprehensive plan and zoning, under the plain reading of Ad + Soil21, there can be no

preemption because the doctrine of preemption, as articulated by this Court, does not allow

for preemption in part.




       21
          In Howard County, 319 Md. 511 (1990), we noted that there were several key
distinctions between the statute governing sludge storage and distribution facilities which
was the subject of Ad + Soil, and the comprehensive statute governing the PSC’s approval
of electric transmission lines. Specifically, we noted that the statute in Ad + Soil did “not
purport to regulate the actual location of sludge utilization sites, or the construction or
arrangement of facilities on such sites.” Id. at 526 (emphasis in original) (citing Ad + Soil,
307 Md. at 333). By contrast, in Howard County, we noted that Article 78 gave the PSC
the specific authority to approve the location of transmission lines. Another significant
distinction is that in Ad + Soil, the statute at issue specifically provided that the Department
of Health and Mental Hygiene was not permitted to issue a permit for the sewage sludge
composting facility “unless the facility complie[d] with all applicable county zoning and
land use requirements and [was] not opposed by the local legislative body.” Id. at 525
(citing Ad + Soil, 307 Md. at 327). PU § 7-207 contains no such requirements. Indeed,
these are the very standards that were proposed by the Counties to be added to the statute
in the 2019 legislation session, which failed in legislative committee.

                                              35
        We do not find the County’s “all or nothing” preemption argument persuasive

considering the specific language in the Public Utilities Article which expressly defines an

advisory role for local government in the CPCN process, and which identifies planning and

zoning matters as being significant factors which must be considered by the PSC but are

ultimately not dispositive. Each preemption case must be considered on the language of

the particular statute at issue. We have previously noted that this Court has found

preemption when state legislation is “extensive and embrace[s] virtually the entire area

involved.” Nat’l Asphalt v. Prince George’s Cty., 292 Md. 75, 78 (1981) (emphasis added).

        Here, the General Assembly has expressly limited the role of local government to

an advisory role in the CPCN approval process. In Howard County, we recognized that

while the Legislature delegated approving authority over transmission lines to “a state

agency with statewide powers, perspective and expertise”, the Legislature “did not intend

that local interests be ignored by the PSC, as evidenced by the right of counties to actively

participate in the certification proceedings.” 319 Md. at 528. Although we found that the

statute preempted local zoning authority to approve transmission lines, we noted that under

the statute, the counties may present recommendations during the PSC public hearings,

“thus eliminating the potential for dual application procedures which may result in

irreconcilably conflicting results. . . .” Id.

        Consistent with our statutory interpretation in Howard County, under the plain

language of PU § 7-207, the PSC is the ultimate decision-maker and approving authority

of generating stations. Local government is a participant in the process and has an advisory

role.   The 2017 Amendment clarifies the role of local government as a significant


                                                 36
stakeholder in the process, whose recommendations, and local planning and zoning

regulations must be duly considered22 but leaves the PSC responsible for reaching the final

balance that includes local planning and zoning as one of several factors.

                          Application of COMAR Regulations

       Finally, the County argues that the regulations promulgated by the PSC as set forth

in COMAR 20.79.01.04 clearly identify the local Board of Zoning Appeals as a local

agency with authority to approve or disapprove the construction of SEGS under the Zoning

Ordinance. COMAR 20.79.01.04(e) requires that a CPCN application for the construction

of a generating station include: “[a] list of each local, state or federal government agency

having authority to approve or disapprove the construction or operation of the project.”

Although the regulation acknowledges that there may be other agencies which might have

approving authority, the language is silent on which agencies might have authority, and/or

what that authority might mean. We do not read the regulation to suggest that the Board

of Zoning Appeals has authority to issue a separate approval of SEGS, particularly where

the Board’s approval or disapproval could be inconsistent with the PSC’s final

determination.




       22
         To be clear, although we have found that PU § 7-207 impliedly preempts a local
government or its zoning authority from having the final word on whether and where a
generating station can be located, this holding should not be read to suggest that local
governments do not have the authority to address solar projects in their comprehensive
plans and zoning regulations. Through the 2017 Amendment, the General Assembly has
expressly determined that local comprehensive plans and zoning regulations require due
consideration by the PSC in its final approval of generating stations.

                                            37
                                  V.     CONCLUSION

       PU § 7-207 preempts by implication local zoning authority approval for the siting

and location of generating stations which require a CPCN. The statute is comprehensive

and grants the PSC broad authority to determine whether and where SEGS may be

constructed. Local land use interests are specifically designated by statute as requiring

“due consideration” by the PSC. This includes the recommendation of the governing body

of each county or municipal corporation in which any portion of the construction of the

generating station is proposed to be located, as well as due consideration by the PSC of the

consistency of the application with the comprehensive plan and zoning for the respective

local jurisdiction.

       Under the plain language of the statute, local government is a significant participant

in the process, and local planning and zoning concerns are important in the PSC approval

process. However, the ultimate decision-maker is the PSC, not the local government or

local zoning board. Although local zoning laws are preempted and therefore not directly

enforceable by the local governments as applied to generating stations such as SEGS, they

are nevertheless a statutory factor requiring due consideration by the PSC in rendering its

ultimate decision.

                                          JUDGMENT OF THE COURT OF
                                          SPECIAL APPEALS IS AFFIRMED.
                                          COSTS IN THIS COURT AND THE
                                          COURT OF SPECIAL APPEALS TO BE
                                          PAID BY PETITIONER.




                                             38
