Months ago, the Maryland Public Service Commission (PSC) denied an appeal from Frederick County to prevent a solar array being built on roughly 100 acres of prime farmland off Biggs Ford Road near Walkersville.
Despite that ruling, an ultimate decision on whether the array can be constructed is not expected soon.
Last August, Public Utility Law Judge Ryan McLean ruled the array could be built and that a certificate of public convenience and necessity (CPCN) should be issued to Biggs Ford Solar LLC. He said the state’s goals of renewable energy outweigh the project’s inconsistency with local zoning laws.
The project has been in the Public Service Commission timeline for years. Wendy Kearney, a senior assistant county attorney, appealed that decision to the Public Service Commission, but its four members sided with McLean in a late November decision that the array can be built.
In their denial of Frederick County’s appeal, they stated the Maryland General Assembly and Court of Appeals has determined that they — the administrative agency regulates public utilities statewide — have the authority to determine where solar arrays are built.
The General Assembly has also determined renewable energy sources like solar arrays are of public benefit.
“The County provides no compelling reason why the Commission should ignore this statewide statement of public policy when evaluating the public convenience and necessity of a proposed renewable energy facility,” the PSC’s decision reads in part.
Local officials, however, are concerned that allowing the solar array preempts local zoning authority, especially when looking at areas of prime farmland.
Kearney said an appeal of the PSC’s decision was filed by the county in the Baltimore Circuit Court in December, which court records confirm.
She wrote in an email earlier this week the county supports renewable energy projects but that the Public Service Commission acted outside its authority with regard to the Biggs Ford application.
That argument stems back to a case in Washington County—Board of County Commissioners of Washington County, Maryland v. Perennial Solar, LLC—where the Court of Appeals ruled the Public Service Commission has ultimate authority on where to allow solar arrays.
Kearney said even with this ruling, there are other aspects to consider regarding the Biggs Ford proposal.
“The County contends simply that the statutory criteria governing the issuance of a CPCN were not properly applied to the application, and in certain areas the analysis exceeded the scope of the agency’s authority,” Kearney wrote in an email. “The applicant always has the burden of proof — the statement that the County did not provide a ‘compelling reason’ — implies that the County had some burden of proof which it did not.”
Because of scheduling, Kearney said she did not anticipate a hearing in front of the Circuit Court of Baltimore city occurring soon.
“It will be several months, and probably the fall/winter before a decision is made by the Court,” she wrote.