The state's administrative agency that regulates public utilities recently ruled a solar array can be built on roughly 100 acres of farmland off Biggs Ford Road near Walkersville.
Public Utility Law Judge Ryan McLean of the Maryland Public Service Commission (PSC) issued an order in late August, stating a Certificate of Public Convenience and Necessity (CPCN) can be issued to the applicant, Biggs Ford LLC, to build the array.
Wendy Kearney, a senior assistant county attorney who has worked on the case, said it's "likely" county officials will appeal the decision. If so, a five-member panel would review McLean's opinion, led by PSC Chairman Jason Stanek.
In his advisory opinion, McLean cited that the applicant decreased the size of the solar array from about 135 to 100 acres, along with the increasing the landscape buffer to around the entire project, from 3,800 to 12,000 linear feet, as signs officials were working to resolve county issues.
The county's overall solar ordinance is restrictive, McLean wrote.
"Aside from abandoning the Project entirely, I find there is nothing the Applicant could do to resolve the issues and concerns presented by the County as the Project cannot meet the requirements of the County’s Commercial Floating Zone District," he wrote. "While some of the County’s concerns are reasonable, the restrictions created by the County’s zoning ordinance make the construction of any utility-scale solar project in the County extremely unlikely."
County Council President M.C. Keegan-Ayer (D) is working on an update to the county's solar ordinance with members of the county's agricultural community and other partners. She helped write the current ordinance, which placed the following restrictions on proposed solar arrays:
- The project cannot exceed 10 percent of the farm’s tillable acreage, or 75 acres.
- It cannot sit on prime farm soils.
- It cannot be in a priority preservation area or rural legacy area.
- It cannot be contiguous to growth areas identified in the county’s Comprehensive Plan.
Keegan-Ayer said McLean's opinion is more like taking a "hammer" to address the issue of finding sites for solar arrays and meeting the state's renewable energy goals, versus using a "scalpel" like county officials are trying to operate with drafting the solar ordinances.
"This is a piece of prime farmland that is recognized by everyone and including people who sit on the governor’s solar task force … that is land everyone wants to protect," Keegan-Ayer said.
Council Vice President Michael Blue (R)—whose district includes the proposed solar array—said he's concerned McLean's decision takes local zoning decisions out of his and county officials' hands.
Kearney agreed, and said she was surprised at McLean's ruling since six state secretaries signed a letter opposing the awarding of a CPCN. That letter, dated Sept. 11 2019, was signed by:
- Joseph Bartenfelder, Maryland’s secretary of agriculture.
- Kelly Schulz, secretary of commerce.
- Robert S. McCord, secretary of planning.
- Pete Rahn, then-secretary of transportation.
- Mary Beth Tung, director of the Energy Administration.
- Ben Grumbles, secretary of the environment.
- Jeannie Haddaway-Riccio, secretary of natural resources.
Kearney said she also disagreed with McLean's statement that the county could easily find other areas of farmland to preserve to meet its goal of preserving 100,000 acres.
"There is more to the 100,000-acre goal than just acreage of land. Frederick County is trying to preserve blocks of the best agriculture land and the best soils so that agriculture remains viable in the county," Kearney wrote. "All acreage is not the same. The County’s priority is to focus solar on land that is not our most productive farmland, which is an important balancing factor."