IN THE MATTER OF THE APPLICATION * BEFORE THE OF PERENNIAL SOLAR, LLC FOR A PUBLIC SERVICE COMMISSION CERTIFICATE OF PUBLIC CONVENIENCE * OF MARYLAND AND NECESSITY TO CONSTRUCT AN 8.0 MW SOLAR PHOTOVOLTAIC GENER- * ATING FACILITY IN WASHINGTON COUNTY, MARYLAND * CASE NO. 9408
PROPOSED ORDER OF PUBLIC UTILITY LAW JUDGE
Before: Ryan C. McLean Chief Public Utility Law Judge
Issued: April 21, 2021 Table of Contents
Appearances ...... iv I. Executive Summary ...... 1 II. Procedural History ...... 2 III. Parties’ Positions...... 10 A. Perennial ...... 10 B. PPRP ...... 17 1. Project Description and Overview ...... 17 2. Biological Resources ...... 18 3. Economic, Demographic, and Fiscal Issues ...... 23 4. Land Use ...... 24 5. Visual Quality ...... 24 6. Transportation ...... 29 7. Cultural and Aesthetic Resources ...... 31 8. Public Services and Safety ...... 32 9. Property Values ...... 33 10. Noise Impact Assessment ...... 33 11. Electromagnetic Field Impact Assessment ...... 34 12. Decommissioning ...... 35 C. The County ...... 36 D. The Neighbors ...... 40 E. Staff ...... 45 F. Applicant’s Rebuttal ...... 47 G. PPRP’s Rebuttal ...... 54 H. Staff’s Rebuttal ...... 57 I. PPRP’s Supplemental Testimony ...... 58 J. Neighbors’ Supplemental Testimony ...... 59 K. Applicant’s Supplemental Rebuttal Testimony ...... 59 L. Second Evidentiary Hearing ...... 60 M. Public Comments ...... 61 1. Verbal Comments...... 61 2. Written Comments ...... 65 N. Briefs ...... 67 1. Perennial ...... 67 2. The County ...... 70 3. The Neighbors ...... 70 4. Staff ...... 73 O. Reply Briefs ...... 74 1. Perennial ...... 74 2. PPRP ...... 76 3. Neighbors ...... 78 4. The County ...... 80 5. Staff ...... 80 IV. Applicable Law ...... 82
ii V. Analysis ...... 83 A. PUA § 7-207 Factors ...... 83 1. PUA § 7-207(e)(1) – Recommendation of the County ...... 83 2. PUA § 7-207(e)(2)(i) – Stability and Reliability of the Electric System ...... 84 3. PUA § 7-207(e)(2)(ii) – Economics ...... 85 4. PUA § 7-207(e)(2)(iii) – Esthetics ...... 86 5. PUA § 7-207(e)(2)(iv) – Historic Sites ...... 89 6. PUA § 7-207(e)(2)(v) – Aviation Safety ...... 92 7. PUA § 7-207(e)(2)(vi) – Air and Water Pollution ...... 92 8. PUA § 7-207(e)(2)(vii) – Disposal of Waste ...... 93 9. PUA § 7-207(e)(3)(i) – Consistency with the County’s Comprehensive Plan and Zoning ...... 93 a. The Comprehensive Plan ...... 93 b. Zoning ...... 95 10. PUA § 7-207(e)(3(ii) – Efforts to Resolve Issues Presented by the County ...... 96 B. Other Considerations ...... 97 1. RPS Contribution ...... 97 2. Proposed Amended License Condition 19 – Land Use ...... 97 3. Electro-magnetic Field ...... 99 C. Public Comments ...... 99 VI. Conclusion ...... 100
iii Appearances
Carolyn Elefant, Esquire, and Alexander English, Esquire, for Perennial Solar, LLC.
Sondra Simpson McLemore, Esquire, and Steven M. Talson, Esquire, for the Department of Natural Resources, Power Plant Research Program.
Michael A. Dean, Esquire, and Lloyd J. Spivak, Esquire, for the Technical Staff of the Public Service Commission of Maryland.
Joseph G. Cleaver, Esquire, on behalf of the Office of Maryland People's Counsel.
Kirk C. Downey, Esquire and B. Andrew Bright, Esquire, for Washington County.
William C. Wantz, Esquire, on behalf of Lori and Keith Robinson, Samuel and Judith Fiery, Daris and Ron Kendle, Hilda Canfield, Kendra and Rick Reese, Trudy and Lynn Keller, Betty Wasson, Debra and Jeff Kendall, and Mary Lou and Brent Feight.
iv I. Executive Summary
1. On December 15, 2015, Perennial Solar, LLC’s (“Perennial” or “the Applicant”) filed an application for a Certificate of Public Convenience and Necessity (“CPCN”) to construct an 8.0 megawatt (“MW”) solar photovoltaic generating facility (“the Project”) in
Washington County, Maryland (“the Application”). However, due to a lengthy appeal process stemming from a Washington County Board of Zoning Appeals (“BZA”) decision, evidentiary hearings were not concluded until January 4, 2021. Over the six-year period between Perennial filing its application and the conclusion of the evidentiary hearings,
CPCN cases have become increasingly contentious. Statutory changes have been made requiring due consideration be given to the respective County’s recommendations, as well as a project’s consistency with the applicable Comprehensive Plan (“CP”) and zoning. In addition, appellate courts have affirmed the Commission’s authority to preempt local zoning when considering the siting of projects requiring CPCNs.1
2. In this proceeding, the Project was supported by both the Department of Natural
Resources (“DNR”) Power Plant Research Program (“PPRP”) and the Commission’s
Technical Staff (“Staff”), but was opposed by the Board of County Commissioners of
Washington County (“the County”) and several neighbors that reside near the land upon which the Project has been proposed to be constructed. The opposition raised several issues, including zoning and consistency with the County’s CP and the potential negative impacts on property values, esthetics, and historic sites.
3. Public Utilities Article, Annotated Code of Maryland (“PUA”) § 7-207 sets forth numerous factors that must be considered in a CPCN, and the Maryland Court of Appeals
1 See Board of County Commissioners v. Perennial Solar, LLC, (“Perennial Solar”) 464 Md. 610 (2019).
1 indicated the State’s Renewable Portfolio Standard (“RPS”) may also be considered.2
There is no requirement for a project to satisfy every single statutory factor in order to be approved, only that those statutory requirements are appropriately considered by the
Commission.
4. After conducting two public comment hearings and two evidentiary hearings, reviewing all the written comments, and considering the parties’ briefs and the entire record of this proceeding, I find that approving Perennial’s CPCN Application and the Project to be in the public’s convenience and necessity. I specifically find that the benefits of the
Project and its contribution to the State’s RPS outweigh the County’s recommendation and the objections about the Project’s potential negative impacts, many of which were not supported by the record.
II. Procedural History
5. On December 1, 2015, Perennial filed an application requesting a CPCN to construct the Project in Washington County, Maryland. The Applicant also requested a waiver of the two-year notice requirement in PUA § 7-208(c)(1). The Application included an Environmental Review Document (“ERD”) prepared by Community Energy
Solar, LLC.3
6. On December 2, 2015, the Commission docketed the application as Case No. 9408 and delegated it to the Public Utility Law Judge Division (“PULJ”).4
2 464 Md. at 623-624. 3 The original Application, ERD, and attachments filed on December 1, 2015, were admitted collectively into the record as Applicant Exhibit (“Ex.”). 1. 4 Maillog (“ML”) 178929.
2 7. On December 21, 2015, several individuals that live or own property near the proposed location of the Project filed a Petition for Judicial Review in the Circuit Court for
Washington County, Maryland (“the Circuit Court”) appealing a BZA decision that granted
Perennial a special exception and a variance. The County subsequently intervened. Prior to a hearing on the merits, Perennial requested a pre-appeal determination from the Circuit
Court regarding whether the Commission and the CPCN process preempted local zoning laws.
8. On December 22, 2015, a pre-hearing conference was held, and a procedural schedule was adopted. Additionally, pursuant to Perennial’s request, good cause was found to grant the Applicant’s request for a waiver of PUA § 7-208(c)(1).5
9. On January 26, 2016, in support of the Application, Perennial filed the Direct
Testimony and Exhibits of Thomas Anderson, Project Manager with Perennial, and
Timothy Kellerman, Senior Environmental Scientist with Triad Engineering, Inc.6
10. On March 15, 2016, a Consent Motion to Suspend Procedural Schedule was filed based upon two other CPCN proceedings that were pending before the Commission involving the interpretation of the Forest Conservation Act (“FCA”); therefore, the Parties requested that the procedural schedule be suspended until the Commission issued a final decision on the FCA issue.
11. On March 16, 2016, Chief PULJ Terry Romine granted the motion, suspended the proceeding, and cancelled all scheduled hearings.
5 The Notice of the Pre-Hearing Conference and notices to the respective members of the General Assembly were entered into the record as Applicant Exs. 13 and 14, respectively. 6 The Direct Testimonies of Messrs. Anderson and Kellerman were admitted collectively into the record as Applicant Ex. 2.
3 12. On June 20, 2016, the Circuit Court granted Perennial’s motion and found that the
Commission’s authority preempted the County’s local zoning authority, dismissed the appeal, and remanded the matter to the BZA with instructions to vacate its opinion and the grant of a special exception and variance.
13. On July 20, 2016, the County appealed the Circuit Court’s decision to the Maryland
Court of Special Appeals.
14. On August 28, 2018, the Maryland Court of Special Appeals affirmed the Circuit
Court’s decision and held “that the PSC preempts, by implication, local zoning regulation.”7
15. On November 14, 2018, the County filed a petition for a writ of certiorari with the
Maryland Court of Appeals.
16. On February 4, 2019, the Maryland Court of Appeals granted the County’s petition.
17. On March 6, 2019, Perennial requested that this matter continue to be held in abeyance until the Maryland Court of Appeals resolved the pending certiorari petition.
18. On March 11, 2019, PULJ Janice Flynn granted Perennial’s request.
19. On July 15, 2019, the Maryland Court of Appeals affirmed the Maryland Court of
Special Appeals’ decision and held “PU § 7-207 preempts by implication local zoning authority approval for the siting and location of generating stations which require a
CPCN.”8
20. On September 11, 2019, a procedural schedule was adopted.
7 Bd. of Cty. Comm’rs v. Perennial Solar, 239 Md. App. 380, 392 (2018). 8 464 Md. at 644.
4 21. On October 16, 2019, Perennial filed supplemental information in support of its
Application, including revised dates to obtain permits and an estimated construction schedule, revised cost estimates, and an executed Interconnection Agreement.9
22. On November 4, 2019, PPRP filed a notice that Perennial’s Application was incomplete because it was missing the required Environmental Site Design (“ESD”), a
Stormwater Management Concept Plan, and a Forest Stand Delineation Report, and there was insufficient information related to the Project’s consistency with the County’s CP and zoning.
23. On November 26, 2019, Perennial filed the following supplemental information:
Appendix B to the ESD Stormwater Management Concept Plan; Appendix G, Phase I of the Environmental Site Assessment; information related to PPRP Data Request No. 1; a revised concept site plan which included a buffer plan and distances to neighboring homes; and responses to Staff Data Requests.10 The Applicant also noted it would re-run a glare analysis and, while a Forest Stand Delineation Report had not been provided, Perennial indicated that it would comply with the County’s Forest Conservation Ordinance
(“FCO”).11 Perennial also acknowledged that it did not provide the recommendation of the
County or a statement of consistency with the County’s CP and zoning.
24. On December 5, 2019, this proceeding was reassigned to Chief PULJ Ryan C.
McLean.
9 The Supplemental Information, filed on October 16, 2019, was admitted into the record as Applicant Ex. 3. 10 ML 227674. Perennial’s responses to PPRP Data Requests (“DR”) 1 and 2, responses to Staff DR 1, and a the 2015 BZA were entered into the record collectively as Applicant Ex. 4. 11 Applicant Ex. 4 – Response to PPRP DR 1-9.
5 25. On January 3, 2020, the Applicant filed the Supplemental Direct Testimony of
Mr. Anderson, and copies of notices sent to members of the General Assembly in accordance with PUA § 7-207(c).12.
26. On January 7, 2020, a revised procedural schedule was issued.
27. On February 14, 2020, the County filed a Petition to Intervene.
28. On February 18, 2020, the Honorable Jeffrey A. Cline, President of the Board of
County Commissioners of Washington County, Maryland, submitted a letter requesting that any public hearings conducted in this matter be conducted jointly with the Board of County
Commissioners.
29. On February 24, 2020, a Petition to Intervene was filed by the following individuals: Lori and Keith Robinson; Samuel and Judith Fiery; Daris and Ron Kendle;
Hilda Canfield; Kendra and Rick Reese; Trudy and Lynn Keller; Betty Wasson; Debra and
Jeff Kendall; and Mary Lou and Brent Feight. On that same date, a Notice of Opportunity to Respond to the Petitions was issued.
30. On March 5, 2020, the Petitions to Intervene were granted without opposition.
31. On March 13, 2020, the Public Comment Hearing, scheduled for March 26, 2020, was cancelled due to the emergence of Coronavirus Disease 2019, or COVID-19.
32. On April 8, 2020, pursuant to Perennial’s and PPRP’s request, the procedural schedule was suspended.
33. On June 26, 2020, a new procedural schedule was established.
34. On August 31, 2020, PPRP submitted the Direct Testimony of Mr. Shawn Seaman, a Program Manager with PPRP, Dr. Peter D. Hall, President of Metametrics, Inc.,
12 Mr. Anderson’s Supplemental Direct Testimony and the notices to the respective members of the General Assembly were entered into the record as Applicant Exs. 5-6, respectively.
6 Mr. Donald E. Strebel, a Senior Environmental Consultant with Environmental Research
Group, LLC, an executed State Secretarial Letter, Initial Recommended License
Conditions, a Draft Project Assessment Report (“PAR”), the Applicant’s responses to selected PPRP data requests, and a glare analysis.13 The County filed the testimony of Jill
Baker, the Director of the County’s Department of Planning,14 and William C. Wantz,
Esquire, who entered his appearance on behalf of the referenced pro se parties, filed Reply
Testimony and Argument in Opposition to Perennial’s Application.15
35. On September 1, 2020, Staff filed a Motion for Acceptance of Late Filing and the
Direct Testimony and Exhibits of Kevin Zhong.16 Additionally, PPRP filed Appendix B to the PAR.17
36. On September 2, 2020, a Notice of Opportunity to Respond to Staff’s Motion was issued. No responses were filed, and, on September 9, 2020, Staff’s Motion was granted.
37. On September 15, 2020, the Board of County Commissioners filed a letter unanimously opposing the Project, and Commissioner Wayne K. Keefer filed a letter individually expressing his opposition.18
13 The following PPRP exhibits were entered into the record: Mr. Seaman’s Direct Testimony - PPRP Ex. 1; the Secretarial Letter - PPRP Ex. 2, the draft Initial Recommended License Conditions - PPRP Ex. 3; the PAR – PPRP Ex. 4; Attachment (“Attch.”) A (Perennial’s Responses to PPRP Data Requests) – PPRP Ex. 5; Appendix (“Appx.”) C – PPRP’s Glare Analysis – PPRP Ex. 6; Dr. Hall’s Direct Testimony – PPRP Ex. 7; Mr. Strebel’s Direct Testimony – PPRP Ex. 8; Mr. Seaman’s Supplemental Testimony – PPRP Ex. 9; PPRP’s Revised Recommended License Conditions (red-lined) – PPRP Ex. 10; PPRP’s Revised Recommended License Conditions (clean) – PPRP Ex. 11; and Dr. Hall’s Supplement Testimony – PPRP Ex. 12. 14 Ms. Baker’s Testimony and excerpts from the County’s Zoning Ordinance were entered into the record as County Exs. 1 and 2, respectively. 15 Mr. Wantz’s testimony was admitted into the record as Neighbors Ex. 1. 16 Mr. Zhong’s testimony was admitted into the record as Staff Ex. 1. 17 ML 231678. The documents were entered into the record as PPRP Ex. 6. 18 The County Commission’s letter and Commissioner Keefer’s letter were entered into the record as County Exs. 3 and 4, respectively. These documents were initially filed as public comments but were subsequently officially filed in the docket on October 23, 2020.
7 38. On September 16, 2020, a virtual public comment hearing was held, and six individuals offered comments.19
39. On October 2, 2020, the Applicant filed the Rebuttal Testimony of Mr. Anderson.20
Additionally, PPRP filed the Supplemental Testimonies of Mr. Seaman and Dr. Hall, and
Revised License Conditions, and Staff filed the Rebuttal Testimony and Exhibits of
Mr. Zhong.21
40. On October 13, 2020, Ms. Elizabeth Shatto, the Executive Director of the Heart of the Civil War Heritage Area (“HCWHA”), filed comments on the Project’s impact on an historic site and heritage tourism.22
41. On October 22, 2020, a second virtual public comment hearing was held, and five individuals offered comments.23
42. On October 26, 2020, an evidentiary hearing was held. At the conclusion of the evidentiary hearing, the PULJ determined additional information was necessary related to
PPRP’s proposed license conditions and certain photographs offered by Perennial.
19 The Certificate of Publication was entered into the record as Applicant Ex. 7. 20 Mr. Anderson’s Rebuttal Testimony was entered into the record as Applicant Ex. 8. 21 Mr. Seaman’s and Dr. Hall’s Supplemental Testimony and the Revised License Conditions were admitted into the record as PPRP Exs. 9 and 12, respectively. Finally, Mr. Zhong’s Rebuttal Testimony and Exhibits was entered into the record as Staff Ex. 2. 22 See PPRP Ex. 13, Appx. A. Ms. Shatto filed her letter as a public comment. Subsequent to the filing of Ms. Shatto’s letter and prior to the first evidentiary hearing, a teleconference was held with Ms. Shatto, Mr. Anderson, Mr. Seaman, and counsel for Perennial, PPRP, and Staff participating. See TR at 61-62. A description of Ms. Shatto’s October 13, 2020 letter can be found at paragraph 194. 23 Applicant’s counsel indicated that the affidavit from the Herald Mail Media had been sent by mail and had not been received as of the date of the hearing and sought leave to amend. ML 232308. The Applicant provided the receipt for the advertisements and the links to two articles published by the Herald Mail Media referencing the hearing. The receipt and postings from the Herald Mail Media were entered into the record as Applicant Ex. 9. On January 12, 2021, the Applicant filed the Certificate of Publication which was not available at the time of the evidentiary hearing. See ML 233266. The Parties were provided 10 days to raise an objection; however, no party noted any objection. Therefore, the Certificate of Publication was admitted, post-hearing, as Applicant Ex. 16.
8 43. On October 29, 2020, a teleconference was held between PPRP and Ms. Shatto to discuss specific mitigation proposals.24 On that same date, Ms. Shatto filed a letter confirming that the HCWHA stood by its initial comments and would not propose mitigation beyond the recommended conditions.25
44. On November 17, 2020, a procedural schedule was issued setting dates for the submission of supplemental and reply testimony, and on November 18, 2020, a Notice of
Evidentiary Hearing was issued.
45. On November 20, 2020, PPRP submitted the Second Supplemental Testimony of
Dr. Hall.26
46. On November 30, 2020, the Neighbors submitted the Supplemental Testimony of
Mr. Wantz in Opposition to the Application of Perennial Solar, LLC.27
47. On December 14, 2020, Perennial submitted Supplemental Rebuttal Testimony of
Mr. Anderson.28
48. On January 4, 2021, a second evidentiary hearing was held.
49. On February 1, 2021, Perennial, the Neighbors, and Staff filed briefs, and the
County filed a Letter in Lieu of a Brief. Neither PPRP nor OPC filed briefs.
50. On February 26, 2021, Perennial, PPRP, the Neighbors, and Staff filed reply briefs, and the County filed Comments in Lieu of a Brief. OPC did not file a reply brief.
24 PPRP Ex. 13 at 2 and Appx. C. 25 PPRP Ex. 13 – Appx. C. 26 Dr. Hall’s Second Supplemental Testimony was admitted into the record as PPRP Ex. 13. Dr. Hall’s previous testimony was also entitled Supplemental Testimony. 27 Mr. Wantz’s Supplemental Testimony, including photographs that were pre-filed (see ML 232770 and 233168), was admitted into the record as Neighbors Ex. 2. 28 Mr. Anderson’s Supplemental Rebuttal Testimony was admitted into the record as Applicant Ex. 15.
9 III. Parties’ Positions
A. Perennial
51. Messrs. Anderson and Kellerman sponsored the Applicant’s ERD. Mr. Anderson discussed the statutory requirement to give due consideration to the County’s recommendation, cited the factors set forth in PUA § 7-207(e)(2), and provided a brief explanation on how the Project addressed those factors. The Applicant’s ERD contained a
Project Overview (Section 1), a Statement of Need and Purpose (Section 2), the Applicant’s information (Section 3), the State and Local Permits and Approvals (Section 4);
COMAR 20.79.03.01 – a Description of the Generating Station (Section 5); and
COMAR 20.79.03.02 – Environmental Information (Section 6), as well as several appendices and figures. Perennial supplemented its filing with a completed Interconnection
Service Agreement (“ISA”) and an Interconnection Construction Service Agreement
(“CSA”) with PJM Interconnection, LLC, (“PJM”) and The Potomac Edison Company
(“PE”), a Concept Site Plan, an ESD Stormwater Management Concept Plan, and a Phase I
Environmental Site Assessment.29
52. The Project will be located in Hagerstown, Maryland on two contiguous, privately owned agricultural parcels owned by the Barr Family, LLC (“Barr Family parcel”) and
Lauren G. and Mary E. Eby (“Eby parcel”), respectively, and Perennial executed long-term leases with both owners (“the Site”).30 The Project will occupy approximately 70 acres and will be constructed on a portion of the Barr Family parcel (currently occupied by a residential dwelling and a farm complex) and the entire Eby parcel (entirely
29 Applicant Ex. 1. 30 Id. at 1.
10 undeveloped).31 The Site is located in a rural area and is surrounded by a mix of agricultural land, and residential-use (along Fairview Road and Greencastle Pike), institutional-use (Broadfording Church) and commercial-use (gasoline service station and handy mart) land.32 The Site is largely free of forest cover and will only require the removal of two trees. It was initially anticipated that the Project would consist of approximately 34,000 fixed-tilt solar panels and 8 power centers, each with an inverter and transformer.
53. Perennial claimed the Project, once completed, would serve as a source of clean energy to offset both fossil fuel generation and the associated pollution. The Applicant noted the State’s aggressive RPS and that the Project would help Maryland meet the RPS’s solar carve-out. The Project’s 8.0 MW of solar power will help bring Maryland closer to the RPS goal and contribute to the State’s greenhouse gas emissions and climate change mitigation efforts.33
54. The Project would create between 30-50 direct jobs from the Project’s design, management, and construction,34 and cost approximately $11 million to $14 million, a reduction from the initial $15 million to $17.5 million estimate.35 Perennial also noted the potential to create as many as 20 additional indirect jobs, i.e., manufacturing, finance, and insurance. The Applicant anticipated using local resources for the design, engineering, construction, and startup process, and the tax revenue from the Project will help support both State and County tax-funded programs.36 The Applicant indicated there will be local
31 Id. 32 Id. at 15. 33 Applicant Ex. 1 at 9. 34 Id. at 10. 35 Applicant Ex. 3 at 2. 36 Id.
11 opportunities for the procurement of several million dollars of goods and services. The
Project will require periodic maintenance, including grass mowing, and quarterly to yearly inspections on the components and for any operational issues.37
55. In terms of approvals, a National Pollutant Discharge Elimination System General
Permit will be required, the Project’s site plan must be approved by the County’s Planning
Commission, and grading and building permits will also be required.38 In terms of zoning, the County requires a special exception be obtained from the BZA to construct utility-scale solar facilities in the Agricultural (Rural District) (“A(R)”).
56. Perennial initially stated that the Project was exempt from the County’s FCO because it would receive a CPCN prior to construction, and the Project will be constructed primarily on previously cleared agricultural fields, minimizing forest loss. However, in his
Supplemental Testimony, Mr. Anderson indicated Perennial planned to work with the
County to conform with the FCO, which has typically been reviewed alongside the site plan review, and no longer sought an exemption.39
57. The Applicant anticipated the disturbances to install the solar panels would include some rough grading, but minimal cuts and/or fills would be required as the panels will largely be constructed on existing grades. The Applicant anticipated the need for aggregate roads to access the Project’s power centers, but the impervious areas would be minimized by using an engineered geosynthetic reinforcement material.
37 Applicant Ex. 1 at 29. 38 Id. at 13-14. 39 Applicant Ex. 5 and 4, citing In the Matter of the Application of Big Spring Solar, LLC for a Certificate of Public Convenience and Necessity to Construct a 3.5 MW Solar Photovoltaic Generating Facility in Washington County, Maryland, Case No. 9402, and In the Matter of the Application of Pinesburg Solar, LLC for a Certificate of Public Convenience and Necessity to Construct an 8.0 MW Solar Photovoltaic Generating Facility in Washington County, Maryland, Case No. 9395.
12 58. The Applicant indicated there are jurisdictional waters of the State on the Site in the form of isolated palustrine emergent wetlands and an isolated watercourse (drainage pattern) which were confirmed by both the Maryland Department of the Environment
(“MDE”) and the United States Army Corps of Engineers (“the Corps”).40 The Applicant anticipated that these waters would be avoided. The ERD noted a sensitive area was identified in the southern portion of the Site by the Washington County Soil Conservation
District (“CSCD”). Perennial indicated that the County would permit panels to be constructed in the sensitive area provided best management practices were employed to improve both water quality and flow in the area.41 There are no Federal Emergency
Management Agency-mapped 100-year floodplain within the Site.
59. In terms of noise, the Applicant indicated that during construction, all construction- related noise will be within the average daily 90-decibel rating at the property lines, and any permits for blasting operations will be acquired and operations will be conducted in accordance with those permits.42 Once the Project becomes operational, the Applicant anticipated there will be low impact from noise as there will be no moving parts and the only noise and vibration will come from electrical equipment near the power centers that contain the inverters and transformers.43 The Project will have minimal lighting requirements, however, each inverter/transformer area may have an overhead down shielded light fixture.44
40 Applicant Ex. 1 at 17. 41 Id. 42 Id. at 20. 43 Id. at 21-22. 44 Id. at 22.
13 60. Perennial indicated that 1 public airport, the Hagerstown Regional Airport, is approximately 2.2 miles east-northeast of the Site, and the next closest airport is over
8.5 miles away. Based upon the Applicant’s initial Sandia Glare Hazard analysis, it found that there was no potential glare hazard issue for either inbound or outbound flights.45
61. In relation to glare impacting neighboring properties, the Applicant’s analysis
“predicted low levels of glare potential for locations east, south and west of the project site.”46 However, Perennial indicated that the referenced model does not take into account barriers, such as a wooded area to the west or the landscape buffer the Applicant will install around the Site. Based upon the existing wooded area and the planned buffers, Perennial did not anticipate there would be glare from the Project onto neighboring properties.
62. The Site will have access gates for maintenance crews and landscape buffers will be planted on the outside of the perimeter’s eight-foot high black-vinyl clad fence that will be installed for security and safety.47 Additionally, low-cover grass vegetation will be planted pursuant to plans approved by County agencies.
63. During construction, Perennial stated that major material and equipment will be delivered by tractor trailers to a staging area, and daily construction traffic would consist of cars, pickup trucks, and personnel vehicles, as well as excavation equipment. According to the Applicant, the two roads that will be used, Maryland Route 63 (“MD 63” or Greencastle
Pike) and Maryland Route 494 (“MD 494” or Fairview Road), are capable of handling the construction traffic.48 Perennial noted that once the Project is operational, traffic would be
45 Id.; see Applicant Ex. 1 - Appx. H. 46 Applicant Ex. 1 at 22. 47 Id. 48 Id. at 23.
14 limited to maintenance crews for vegetation maintenance and maintenance on the solar array components.
64. Perennial explained the Project would be designed in accordance with the State Fire
Prevention Code. The Site was designed to permit access of emergency and fire equipment, and a fire protection plan will be implemented in coordination with local emergency responders.49
65. Perennial noted four bases for its selection of the Site. First, the Site was located in close proximity to PE’s Halfway-Milnor 34.5 kV distribution circuit that runs along
Greencastle Pike.50 Second, the Site lacked significant environmental or culturally important resources, and the isolated wetlands and watercourse can be avoided.51 Third, the
Site’s location was in an area with reasonably good isolation and is an open area that allowed for the Project’s design to avoid nearby shaded areas.52 Finally, the Site is zoned
A(R) which permits utility-scale solar facilities as a special exception.53
66. The Project has a queue position AA1-092 and has an anticipated in-service date of
December 2022.54 Once completed, the power generated by the Project will be sold into the PJM wholesale market and the 2015 Feasibility Study confirmed the Project’s ability to interconnect via the referenced circuit.55 Perennial explained the process wherein PJM and
PE determine if any upgrades are necessary in order to safely connect the Project to the grid. In the event any upgrades are required, Perennial noted that it would be financially
49 Id. 50 Id. at 24. 51 Id. It was not until the First Public Comment Hearing that it was revealed that the Site was now located with the HCWHA due to an expansion of the area in April 2017. 52 Applicant Ex. 1 at 24. 53 Id. 54 Id. at 29 and Applicant Ex. 4 - Response to Staff Data Request No. 1-3. 55 Applicant Ex. 1 at 29.
15 responsible for those upgrades, not PE ratepayers. Mr. Anderson subsequently noted all phases of the PJM interconnection study process were completed and an ISA and CSA were executed with PJM and PE.56 He testified that PJM conducted a System Impact Study that found there would be no adverse impact on the stability and reliability of the system.57
67. Perennial agreed to submit a decommissioning plan that will outline the responsible parties, timeframes, and estimated costs for decommissioning, dismantling, and removal of all equipment.58 The decommissioning plan will include the requisite financial instrument to ensure State and County taxpayers will not bear any cost.
68. The Applicant described the Site as primarily level to rolling agricultural fields that are planted annually with conventional crops. The Barr Property has a farm complex, including a residential dwelling which is located more than 500 feet north of the Site and will not be affected by the Project. Perennial indicated that the Site is not within any special planning areas or overlays or within 1,000 feet of the Appalachian Trail and the
Maryland Historic Trust (“MHT”) found the Project would not impact any historical or cultural resources.59
69. The Applicant stated that due to the intense agricultural practices in the Site’s vicinity, there are a limited number and variety of habitats. The existing flora and fauna are common to the area and there are no federal or State rare, threatened or endangered
(“RTE”) species, or critical habitats.60
56 Applicant Ex. 5 at 2 and Applicant Ex. 3. 57 Applicant Ex. 5 at 2; Applicant Ex. 1 at 29-30. 58 Applicant Ex. 1 at 31. 59 Id. at 33; see id. – Appx. D. 60 Applicant Ex. 1 at 34.
16 70. The Applicant noted that the Project’s operation would not generate air pollution emissions and the fugitive dust resulting from construction should have little impact. The
Project will not require water or sewer, and no impacts to streams or aquifers were anticipated, and no water was anticipated to be used during operations.61 Perennial explained during construction, all waste materials will be removed from the Site to an approved handling facility, and during operation the Project will create little or no waste materials, but any such waste would be disposed of appropriately.62
71. Mr. Anderson acknowledged that the Applicant did not provide a recommendation from the County related to the Project’s consistency with either the CP or zoning.63 He noted that the County has intervened and would likely address these issues.
B. PPRP
1. Project Description and Overview
72. Mr. Seaman provided an overview of the Project and the Site. He indicated the
Project will consist of approximately 28,000 to 30,000 solar photovoltaic panels that will be installed on a fixed-tilt racking system, and will include inverters, transformers, and equipment necessary to interconnect to PE’s distribution system.64 The Applicant entered into long-term leases for 65-75 acres of the Barr Family and Eby parcels, both zoned
Agriculture (Rural), and it was anticipated the Project would occupy approximately
60-65 acres.65 Mr. Seaman noted the Site consists mainly of previously cultivated fields
61 Id. at 39-40. 62 Id. at 41. 63 Applicant Ex. 5 at 4. 64 PPRP Ex. 1 at 3. 65 Id. at 4 and PPRP Ex. 4 at 3.
17 with scattered individual trees and tree lines along portions of the exterior of the parcels, and that Perennial only intends to remove two trees.
73. The Project will interconnect to the 34.5 kV Halfway-Milnor circuit, which is located on the east side of MD 63, by a direct line tap. Mr. Seaman stated the interconnection will be made by an underground line that will include an underground crossing of MD 63.66
74. The Project was estimated to add less than 5,000 square feet of impervious surface.67 Mr. Seaman noted the Applicant intended to minimize the amount of impervious area by having all other access ways be grass with an engineered geosynthetic reinforcement material.
75. Mr. Seaman described PPRP’s review process and the initial recommended license conditions it submitted, and he explained the numerous issues PPRP considers in its review.
He testified that PPRP found the Project to be viable based on several reasons, including the
State’s RPS goals to have 50% renewable energy by 2030, with 14.5% from solar energy sources, and he cited the availability of State tax credits, grants, loans, and rebate programs.68 Mr. Seaman also noted the Site has limited tree coverage and sufficient land area not impacted by shading, and that the technology is both sound and well tested.69
2. Biological Resources
76. Mr. Strebel described the Site, which is cultivated for annual crop production and includes an occupied residential dwelling, a barn, and storage buildings, and the existing
66 Id. 67 PPRP Ex. 4 at 8. 68 PPRP Ex. 1 at 8. 69 Id. at 9.
18 vegetation primarily consist of winter wheat and soybeans with a few scattered trees and shrubs.70 According to the Applicant’s submittal, PPRP noted that 28.2% of the Site was classified as prime farmland.71 Mr. Strebel noted there was a sensitive area on the Site discovered during an August 11, 2015 site inspection by the Applicant and CSCD totaling
1.98 acres. The area consists of “a small isolated nontidal palustrine emergent wetland
(approximately ½ acre) and a short watercourse (approximately 170 feet) located in the south-central part of the site.”72
77. The Project’s construction and operation would not impact any of the Site’s protected resources. Mr. Strebel noted that vegetation would be restricted by the solar panels, but the Project would not have permanent detrimental effects on the soils and future use as farmland except for the portions of the Site that require grading.73 He pointed out
Perennial intended to plant low grass cover over the entire Site which will retain the soil and could replenish organic matter and nutrients into the soil. PPRP included license conditions that the Applicant provide a vegetation management program that will preserve the Site’s natural resources and create a wildlife and pollinator habitat, that the areas beneath and between the panels be planted with native, warm-season grasses, and that a grounds management plan be developed that includes a mowing schedule, grass height, invasive management protocol, and details of an integrated vegetation management plan.74
78. Mr. Strebel discussed the State’s FCA and stated, “The PSC, under 5-1603(f) [of the
Natural Resources Article], provides the final determination of the appropriate forest
70 PPRP Ex. 8 at 5. 71 PPRP Ex. 4 at 15. 72 PPRP Ex. 8 at 6. (footnote omitted); see also PPRP Ex. 1 at 4. 73 PPRP Ex. 8 at 7. 74 PPRP Ex. 8 at 7-8 and PPRP Ex. 4 at 16; see PPRP Ex. 11 – License Condition Nos. 13-14.
19 mitigation for utility projects by considering the afforestation and reforestation mitigation provisions of the FCA.”75 He also stressed that the County’s FCO recommendations may be considered, but the County’s FCO requirements cannot be less strict than the FCA.
Mr. Strebel explained that although a project does not require clearing forests, a developer continues to have a statutory obligation pursuant to the FCA’s afforestation requirements.
In this case, the FCA’s 20% afforestation threshold for agricultural land determines the amount of forest planting required and, based on the Applicant’s most recent data, the afforestation requirement for the Net Tract Area of 71.66 acres would be 14.33 acres.76
Therefore, PPRP included a license condition that required 14.33 acres of afforestation, that those plantings be monitored for 5 years to eliminate invasive species, and that the area be restocked as necessary.77
79. Mr. Strebel noted the Site offered little wildlife habitat other than the referenced wetland and sensitive areas. He stated, “Construction of the solar panels would not destroy any existing habitat or disturb the existing wetland areas,” and “the Applicant’s plan to establish a permanent grass cover below and between the solar panels will have a positive impact on wildlife.”78 There is no record of any RTE species in the Project area and the
September 9, 2015 field visit found no specialized or unusual habitats that exist on the Site or adjacent thereto that would likely provide a habitat for RTE species.79 PPRP included a license condition that requires the Applicant to coordinate with the DNR’s Wildlife
Heritage Service in the event any RTE species are identified prior to or during construction,
75 PPRP Ex. 8 at 8. 76 Id. at 9 and Ex. (DES-2); see PPRP Ex. 4 at 18. 77 PPRP Ex. 8 at 9-10; PPRP Ex. 11 – License Condition No. 12. 78 PPRP Ex. 8 at 10. 79 PPRP Ex. 4 at 20.
20 to protect wildlife habitat while addressing vegetation management, and to plant a pollinator habitat.80
80. Mr. Seaman confirmed that both MDE and the Corps found that the Site contained jurisdictional waters of the State in the form of palustrine emergent wetlands and an isolated watercourse in the center of the Site.81 He indicated a 25-foot buffer was required around both areas and the Applicant agreed those areas will be avoided. However, the
CSCD confirmed that solar panels were permitted within the sensitive area provided the
Applicant used best management practices to improve water quality and flow.82 PPRP included a license condition requiring the Applicant to coordinate with the CSCD related to the sensitive areas.83
81. Mr. Strebel asserted the Project would not impact any streams or wetlands as the
Project will avoid the referenced wetland and no permanent structures will be allowed in the sensitive area. He stated that the Applicant must submit grading plans and sediment and erosion control plans for review and approval to avoid any construction-related disturbances, and that PPRP included license conditions to address those items.84
Additionally, since the Project is greater than one acre, a Pollutant Discharge Elimination
System General Permit will be required to protect water quality and meet federal and State requirements.85
82. The Project will not require water and sewer, and the Applicant did not propose any construction dewatering. In the event dewatering is necessary, Perennial would need to
80 PPRP Ex. 8 at 11; PPRP Ex. 11 – License Condition Nos. 13-15. 81 PPRP Ex. 1 at 4 82 Id. at 4 and PPRP Ex. 4 at 21. 83 PPRP Ex. 4 at 21 and PPRP Ex. 11 – License Condition No. 16. 84 PPRP Ex. 8 at 12-13; PPRP Ex. 11 – License Condition Nos. 4d, 11, and 17. 85 PPRP Ex. 4 at 8-9.
21 determine if an appropriations permit is required, and if such a permit is required, an amendment to the CPCN would be required.86 Accordingly, PPRP included a license condition to address that possibility.87
83. The Project will not produce air emissions, and the only source of emissions will be from clearing, grading, the use of construction equipment, and during maintenance activities. Therefore, PPRP included a license condition requiring the Applicant comply with State regulations to minimize air quality impacts during construction activities.88
84. Mr. Strebel stated the interconnection design would not result in any biological impacts. He noted the direct tap line “would not entail cutting any trees or impacts to wetlands, streams, or other environmental resources.”89
85. The Project could result in impacts outside of the Project’s limit of disturbance based upon the reduced open space and displacement of wildlife from other solar facilities in the area, as well as creating habitat for invasive species. Mr. Strebel indicated that the
Mason Dixon Solar Center (“Mason Dixon”) is approximately 2.5 miles away and is currently under construction.90 However, he determined that Mason Dixon was far enough away, and the surrounding landscape is sufficiently open so no cumulative effects on wildlife were anticipated.
86. In relation to invasive species, Mr. Strebel indicated that in July 2020, a new infestation of spotted lanternfly was detected around the Hagerstown City Park.91 The
86 Id. at 10. 87 PPRP Ex. 11 – License Condition No. 8. 88 PPRP Ex. 4 at 11; PPRP Ex. 11 – License Condition Nos. 4.g-i. 89 PPRP Ex. 8 at 13. 90 Id., citing In the Matter of the Application of Mason Dixon Solar Center, LLC for a Certificate of Public Convenience and Necessity to Construct an 18.4 MW Solar Photovoltaic Generating Facility in Washington County, Maryland, Case No. 9426, Order No. 88166 (issued on March 28, 2017) (“Mason Dixon”). 91 PPRP Ex. 8 at 14.
22 Maryland Department of Agriculture was investigating the infestation and may require a quarantine area for the inspection and decontamination of construction equipment that leaves the quarantine area. Mr. Strebel stated that the Tree of Heaven, a spotted lanternfly habitat, was observed on the Site and the elimination of that habitat was advisable.92
3. Economic, Demographic, and Fiscal Issues
87. Dr. Hall stated construction would occur over a 4-month period and create approximately 30-50 direct design, management, and construction jobs, and many construction jobs may be sourced from the local labor pool.93 The local economy will see benefits in the form of construction worker payrolls, consumption expenditures, local purchases of common construction materials, and associated multiplier effects. The Project will not impact population, housing, or population-related services as most of the work force will be within daily commuting distance. The Project will not require on-site operations and maintenance (“O&M”) facilities or a permanent workforce, but O&M expenditures will support up to two full-time equivalent jobs.94 Dr. Hall concluded the
Project would have a positive impact on the County with public service levels largely unaffected.
88. The Project’s fiscal benefits will stem from corporate income tax revenues, income tax revenues on lease payments to the landowners, and property tax revenues. PPRP estimated that the business personal property taxes during the first full year of operations to
92 Id. 93 PPRP Ex. 7 at 2. 94 Id.
23 be $85,000 and declining to approximately $45,000 depending on the Project’s final design and equipment specifications.95
4. Land Use
89. Dr. Hall described the Site and noted it was not located within a County Priority
Preservation Area, Rural Legacy Area or Antietam Overlay Zone, or a Priority Funding
Area, and the Site was not subject to agricultural or other land preservation easement.96
Based on the Site’s A(R) zoning, the County’s zoning ordinance requires a special exception and a variance from the required 50-foot setback along the two parcels’ interior shared property line. While the Project received both a special exception and variance in
2015 from the BZA, that decision was ultimately vacated by the Maryland Court of
Appeals.97 Dr. Hall asserted that the Project, if designed and constructed in accordance with the County’s site plan requirements and Perennial adopts all other recommended license conditions, the land uses on other properties will not change.98
5. Visual Quality
90. Dr. Hall testified the Site’s terrain is rolling with evaluations increasing from east to west and most views of the Site are unobstructed except for intervening vegetation and homes, the latter of which surround the Site except to the south.99 The Project, as initially proposed, would have a low visual profile with the top edge of the panels being approximately 6 to 7.5 feet above grade and there will be a 50-foot setback from the
95 PPRP Ex. 4 at 27. 96 PPRP Ex. 7 at 3. 97 Id., citing 464 Md. 610. 98 PPRP Ex. 7 at 3; see PPRP Ex. 11 – License Condition No. 19. 99 PPRP Ex. 7 at 4.
24 property lines and the arrays with a 25-foot landscape buffer surrounding the Project.100 He indicated that based upon the Applicant’s concept site plan, the Project was consistent with the setback, height, and coverage requirements in the County’s zoning ordinance.101
91. Dr. Hall testified, “the topmost parts of the Project are likely to be visible from most directions, and will be visible to traffic on MD 63 until the landscape buffer matures,” but if the matured landscape buffer creates an effective visual barrier, the Project will not be visible from adjacent properties.102 He did note that some Project components will be visible from distant perspectives due to terrain elevations, especially from the east.
92. PPRP indicated the Applicant’s proposed landscape buffer included species that mature to heights of 15 to 25 feet. Based on PPRP’s analysis that assumed a 20-foot opaque landscape buffer, PPRP determined the viewshed was considerably smaller and
“estimated viewshed composition from six surrounding locations and found only a fraction of the Project would be visible though mature landscaping.”103 However, Dr. Hall determined that the County’s landscaping requirements were inadequate to screen the
Project from adjacent residences. He testified, “Increasing the landscape buffer’s minimum height requirements to 20 feet and increasing the buffer’s width to 50 feet will provide greater visual relief to more nearby properties than the 10-foot standard in the county’s zoning ordinance where the Project abuts residential neighbors.”104 Therefore, PPRP included a condition that the Applicant’s landscaping plan be revised in accordance with
PPRP’s recommendation and have the final landscaping plan approved by the County.105
100 Id.; see PPRP Ex. 4 at 29. 101 PPRP Ex. 7 at 4. 102 Id. and PPRP Ex. 4 at 30. 103 PPRP Ex. 4 at 33. 104 PPRP Ex. 7 at 5; see PPRP Ex. 4 at 36 105 PPRP Ex. 7 at 5; PPRP Ex. 11 – License Condition No. 20.
25 Additionally, Dr. Hall recommended Perennial be required to develop a process to document and address complaints related to visual impacts from the Project.106 PPRP also included license conditions that requires the Applicant to enter into a landscape maintenance and surety agreement with the County, and require the landscape buffer be maintained in good health for the life of the Project.107
93. The Project will likely not require any lighting, although it may be necessary for security or worker safety. The County’s zoning ordinance addresses exterior lighting standards and Dr. Hall noted that any lighting will meet those standards and the Project will not create a new source of light.108
94. Next, Dr. Hall explained PPRP conducted a glare analysis to estimate the intensity, time-of-day, and duration of glare upon residences and public roads based upon four glass/coating configurations. The amount of glare can vary based upon the types of panels.
PPRP noted, “Smooth or polished surfaces produce more specular reflections that have greater intensity and tighter beams, while textured glass and anti-reflective coatings produce more diffuse reflections with lower solar intensities, but over a wider spatial area.”109 There are several other factors that impact glare, such as the time of day and time of year; the tracking technology; the reflectivity of the panels; the degree to which light is reflected from panels is specular (focused); and the position of observers relative to the panels.
95. PPRP indicated that Perennial planned to install fixed-tilt arrays. Without an appropriate landscape buffer, “off-site glare can be an issue with fixed-tilt arrays shortly
106 PPRP Ex. 7 at 5; PPRP Ex. 11 – License Condition No. 21. 107 PPRP Ex. 7 at 5; PPRP Ex. 11 – License Condition Nos. 22 and 23. 108 PPRP Ex. 7 at 5-6; PPRP Ex. 11 – License Condition No. 24. 109 PPRP Ex. 4 at 37.
26 after sunrise and shortly before sunset, when reflections asymptotically approach the height of the panel near the horizon.”110 The glare can be mitigated by texturing and/or coating the glass, but the Applicant indicated it would not determine the type of panel until after the permitting process. Therefore, PPRP conducted studies “estimating the intensity, time-of- day, and duration of glare upon six stationary observation points plus nearby segments of
Broadfording Church Road, Cearfoss Pike and Greencastle Pike assuming no tracking, a fixed tilt of 25°, and no landscaping along exposed edges of the property.”111 PPRP’s analyses included estimating the glare from four glass/coating configurations based upon
Perennial’s representation that the configurations are a majority of the options on the market: smooth glass with no reflective coating; smooth glass with anti-reflective coating
(“ARC”); lightly textured glass with ARC; and deeply textured glass.112
96. Dr. Hall testified, “PPRP’s glare analysis found that, except when the glass and coating configuration is deeply textured or where reflected light is mitigated by existing vegetation, properties east and west of the Project site will experience glare during spring and summer months until planned landscape buffers are effective.”113 PPRP’s simulations revealed the glare would be short, typically no more than 20 minutes either shortly after sunrise for locations to the west or shortly before sunset for locations to the east.114 PPRP explained the results of its simulations were conservative as the model does not account for landscaping or vegetative screening and the results may overstate the impact on nearby receptors. The Site already has some edge buffers in the form of a mature woodland that
110 Id. at 38. 111 Id. 112 Id. 113 PPRP Ex. 7 at 6. 114 PPRP Ex. 4 at 39.
27 will buffer views from properties west of the Project and scattered areas of trees that will partly block views in other directions.115 Additionally, PPRP pointed out the landscaping buffer that will enclose the entire Project will block reflections over time provided the vegetation creates an opaque buffer. While existing vegetation and the planned landscaping are expected to mitigate glare, PPRP included a license condition for Perennial to address any glare-related complaints.116
97. Dr. Hall’s analysis also indicated that glare could impact nearby roads during both the morning and evening commute times during part of the year. PPRP’s simulations found that with other than a deeply textured glass configuration, roads by the Project could experience a temporary after-image for short time periods during the morning or evening commute times during part of the year. PPRP found that some of the potential glare will likely be mitigated by existing woodlands, houses and structures, trees, and shrubs with the exception of Greencastle Pike.117 Dr. Hall testified the “glare onto Greencastle Pike
(MD 63) could be serious enough to have an adverse effect on motor vehicle safety until the
Project’s landscape buffer becomes effective enough to block reflected light off the panels.”118 PPRP’s analysis predicted “up to 20 minutes of glare with potential to cause temporary after-image (yellow glare) between mid-March and the end of September in the early evening, primarily upon northbound traffic.”119
98. PPRP indicated that the off-site glare will not be mitigated until the landscape buffer matures enough to block the glare. PPRP stated in these situations, “temporary visual
115 Id. 116 PPRP Ex. 8 at 6, PPRP Ex. 4 at 40, and PPRP Ex. 11 – License Condition No. 21. 117 PPRP Ex. 4 at 40. 118 PPRP Ex. 7 at 6. 119 PPRP Ex. 4 at 40.
28 mitigation, such as an opaque buffer within the setback will be required to screen
Greencastle Pike from the sun’s reflections upon the road until the landscape buffer provides an opaque visual buffer.”120 Therefore, PPRP recommended that once the
Applicant selects the final panel design, it must perform a Federal Aviation Administration
(“FAA”)-compliant glare analysis and provide both the results and proposed mitigation to
PPRP and the Commission for review and approval no less than 60 days prior to construction.121
6. Transportation
99. Dr. Hall explained the Project will add a small amount of construction-related traffic to local roads consisting of automobiles, light trucks, and excavation and site preparation equipment. The Site will be accessed from an existing farm access road from MD 63 and will require a permit from the Maryland Department of Transportation State Highway
Administration to improve and use the access road. PPRP included a license condition that the Applicant provide a truck routing plan to PPRP and the Commission prior to beginning construction.122 PPRP did not anticipate the additional construction worker traffic impacting the level of service of the roads near the Site.
100. Dr. Hall noted that construction-related traffic could cause conflicts with school buses during weekdays and commuters due to the narrow road surfaces near the Project.
The Applicant indicated that approximately 24 round-trip truck trips will be necessary to deliver excavation, grading, aggregates, and other ground preparation equipment, and
120 Id. at 41. 121 PPRP Ex. 7 at 6-7; PPRP Ex. 11 – License Condition No. 25. 122 PPRP Ex. 7 at 7; PPRP Ex. 11 – License Condition No. 27.
29 another 40-50 truck trips to deliver the Project’s components.123 Therefore, Dr. Hall included a license condition that requires Perennial to submit a traffic management plan to the Commission and PPRP that restricts truck deliveries to non-peak hours, limits the duration and number of trucks that can be onsite at any given time, and that takes into account school bus schedules and routes.124 Additionally, PPRP included a condition that the Applicant comply with all permit requirements for use, crossing, and occupancy of
State and County roads, obtain necessary approvals, and address any damages to roads from construction traffic.125
101. Dr. Hall also addressed the Project’s potential impact on aviation. PPRP indicated that for projects near airports, solar developers have the responsibility to inform the FAA so the agency can determine if the projects present any safety or navigational problems. PPRP explained the FAA’s 2013 interim policy “adopt[ed] the Solar Glare Hazard Analysis Plot as the standard for measuring the ocular impact of any proposed solar energy system” for solar projects on federally-obligated airports.126 In order to obtain the FAA’s approval and/or a “no objection” for a project, it must be demonstrated that a project has no potential for glint or glare of any kind in an existing or planned airport traffic control tower at cab height and that there be no potential for glare or “low potential for after-image” along the final approach path for any existing or future landing thresholds.127 PPRP noted that while the Project is not on airport property, “the FAA strongly urges proponents of solar energy
123 PPRP Ex. 4 at 42. 124 PPRP Ex. 7 at 7-8 and PPRP Ex. Ex. 4 at 42-43; PPRP Ex. 11 – License Condition No. 28. 125 PPRP Ex. 7 at 8; PPRP Ex. 11 – License Condition Nos. 29 and 30. 126 PPRP Ex. 4 at 44. 127 Id.
30 systems located on off-airport property or non-federally-obligated airports to consider the policy’s requirements when siting such systems (FAA 2013).”128
102. Dr. Hall stated the closest airport is Hagerstown Regional – Richard A. Hansen
Field Airport, approximately 2.5 miles from the Project.129 PPRP conducted simulations of glare upon the Airport’s glide paths and control tower based upon various glass and coating configurations being considered by the Applicant. Dr. Hall testified, “In no case would glare be reflected upon the glide paths into Hagerstown Regional Airport, but PPRP found the airport’s control tower would experience glare if the modules are configured with deeply textured glass.”130 Therefore, he concluded that “the Project fails FAA policy adherence for air traffic control towers when the modules are coated with deeply textured glass.”131 PPRP included a license condition for Perennial “to provide confirmation to the
PSC and PPRP that the Project is in compliance with FAA and Maryland Aviation
Administration (MAA) standards and notification requirements for objects, including glare, affecting navigable airspace.”132
7. Cultural and Aesthetic Resources
103. PPRP found no properties on the National Register of Historic Places within one mile of the Site, but there were several properties, mostly working farms, on the Maryland
Inventory of Historic Properties (“MIHP”) within one mile which have not been evaluated for the National Register eligibility. The Village of Cearfoss, also known as Cunningham’s
128 Id. 129 PPRP Ex. 7 at 8-9. 130 PPRP Ex. 7 at 8-9. 131 Id. at 9. 132 PPRP Ex. 4 at 45; PPRP Ex.11 – License Condition No. 26.
31 Crossroads, is on the MIHP but does not meet the National Register criteria.133 The MHT concluded the Project will not adversely affect any historic properties, but PPRP included a condition that directed Perennial to consult with MHT if any unforeseen archeological deposits are discovered during construction.134 Dr. Hall initially noted that the Site was not within the HCWHA or other cultural overlays, and no Maryland Scenic Byways are near the Site.
104. PPRP also discussed State traffic laws related to bicycles and noted that construction-related traffic could place cyclists at risk. While PPRP expressed concerns for the safety of cyclists, there are no known or proposed recreational trails near the Site.
8. Public Services and Safety
105. Dr. Hall stated the Project would not require any additional services under normal operations. In the event of a fire, the closest fire department is the Maugansville Goodwill
Volunteer Fire Company approximately 2.5 miles away. Dr. Hall referenced the National
Fire Protection Association’s NFPA 1 Fire Code Handbook and NFPA 70 National
Electrical Code provide guidance for ground-mounted PV installations.135 PPRP indicated that since the County’s fire and rescue is mostly a volunteer service and may not be trained on how to address solar facilities, Dr. Hall recommended a license condition that required
Perennial to establish emergency response protocols to be place in the event of a fire or other emergency.136
133 PPRP Ex. 4 at 45. 134 PPRP Ex. 7 at 9 and PPRP Ex. 4 at 46; PPRP Ex. 11 – License Condition No. 31. 135 PPRP Ex. 7 at 10. 136 Id.; PPRP Ex. 11 – License Condition Nos. 33-34.
32 9. Property Values
106. Dr. Hall had no reason to believe the Project would significantly impact property values. He testified, “Based on evidence gathered from a widely-circulated independent survey of home appraisers, proximity to a solar installation does not have an adverse effect on residential property values.”137 Dr. Hall noted the Project’s minimal vertical profile, the existing and planned buffering along the perimeter of the Site, and the lack of significant traffic, noise, air emissions, water pollution, or hazardous waste being generated all indicated minimal effects on the local environment.138 He concluded these factors suggested that once the Project was operational, property values would not be affected.
10. Noise Impact Assessment
107. Mr. Seaman explained the maximum noise levels permitted by Maryland regulations vary by zoning designation and the time of day. The maximum allowable noise limit in residential areas is 55 A-weighted decibels (“dBA”) during nighttime hours and
65 dBA during daytime hours, but construction activity during daytime hours may be up to
90 dBA.139 He indicated that the County’s zoning ordinance requires operating solar generating facilities not exceed 55 dBA at the nearest residential property boundary, except during short-term events such as utility outages or severe windstorms.140
108. Mr. Seaman explained that solar facilities’ operational noise is typically low and is associated with the inverters and transformers. According to the Project’s layout, the distance from the nearest residence to the closest inverter pad was approximately
137 PPRP Ex. 7 at 11. 138 Id. 139 PPRP Ex. 1 at 10 and PPRP Ex. 4 at 51-52. 140 PPRP Ex. 1 at 10.
33 400 feet.141 At that distance, Mr. Seaman stated the operational noise will be well below the maximum levels and will have no significant impact on residential receptors.142 PPRP’s license conditions include a requirement that the Project comply with the applicable noise standards during both construction and operations.143
11. Electromagnetic Field Impact Assessment
109. PPRP explained that electric and magnetic fields, collectively referred to as electromagnetic fields (“EMF”), occur naturally and result from the generation, transmission, and use of electric power, and are present around power lines and household appliances.144 PPRP discussed how the strength of electric fields is determined and that such fields are shielded or weakened by materials that conduct electricity, such as trees, buildings, and human skin, whereas magnetic fields are more difficult to shield and pass through most materials.
110. PPRP noted potential health effects from exposure to EMF in the extremely low frequency (“ELF”) range from power transmission facilities has been scrutinized for decades. PPRP cited the International Commission on Non-Ionizing Radiation Protection’s
(“ICNIRP”) 2010 guidelines that found “neither a causal relationship between ELF-EMF and increased risk of cancer nor other long-term effects can be established.”145
111. In relation to the magnetic fields produced by solar generating facilities, PPRP indicated such fields are significantly below the minimum thresholds established by the
ICNIRP. Mr. Seaman testified that magnetic fields “are projected to fall below threshold
141 PPRP Ex. 4 at 52-53, citing PPRP Ex. 5 - Response to PPRP DR No. 3-1. 142 PPRP Ex. 1 at 11. 143 Id.; see PPRP Ex. 11 – License Condition No. 4j. 144 PPRP Ex. 4 at 55. 145 Id.
34 human health standards at a distance of 3 feet, therefore the 25-foot buffer from the perimeter fence to the property line is sufficient so that EMF levels from the Project are not anticipated to pose a potential health risk to nearby residents.”146
12. Decommissioning
112. At the end of a project’s useful life, it is required to be completely dismantled, all equipment must be removed, and the Site must be restored. PPRP included a condition that requires the submittal of a decommissioning plan to PPRP and the Commission 30 days prior to construction, and receipt of Commission approval.147 The Decommissioning Plan must include the responsible party(ies), timeframes, estimated costs for the decommissioning, dismantling, and legal disposal of all components both above and below ground, and address site conditions after decommissioning.148 Perennial’s plan must also include provisions for recycling and reuse of components to the extent possible, and disposal of all materials in accordance with the applicable requirements.
113. The Applicant is required to secure funding mechanisms to cover the costs associated with the decommissioning in the form of a surety bond, a letter of credit, or alternative arrangement and it must be in place prior to construction.149 PPRP indicated that the Project would be considered abandoned if there is no output to the grid for
12 consecutive months. The amount of the financial instrument will be based upon an estimate by a third-party consultant provided by Perennial. The cost estimate for decommissioning must be updated every five years during the life of the Project to adjust
146 PPRP Ex. 1 at 11-12. 147 PPRP Ex. 4 at 12; PPRP Ex. 11 – License Condition No. 35. 148 Id. 149 PPRP Ex. 4 at 12.
35 for inflation and any other necessary changes and be submitted to the Commission for review and approval.150
C. The County
114. The County Commissioners submitted a letter, dated September 15, 2020, which indicated that by a 5-0 vote that they opposed Perennial’s CPCN application. The County
Commissioners explained the Project’s location on farmland in the village of Cearfoss “will have a deleterious effect on the value of surrounding farmland and residential property.”151
The Commissioners explained the Project would be a major disruption to that scenic area of the County and was inconsistent with both the scale and character of the surrounding rural landscape and the largely residential village.152
115. Additionally, Commissioner Keefer submitted a letter, dated September 15, 2020, which explained his opposition.153 Commissioner Keefer explained he walked the neighboring properties and viewed the Site from various angles and determined the Project was totally unsuitable for the residential neighborhood.154 He indicated that a series of neighborhoods encircle the Project and noted the Project was not fitting with the adjacent property uses in the Cearfoss community. Commissioner Keefer stated the Project would be visible regardless of the height of the buffer and property values would be negatively impacted.155 He explained he was an advocate of environmentally friendly projects and supported a clean and healthy environment, but the County must be mindful of the full
150 Id. at 13; PPRP Ex. 11 – License Condition No. 35. 151 County Ex. 3. 152 Id. 153 County Ex. 4. 154 Id. 155 Id.
36 impact of every project.156 In this case, Commissioner Keefer found the Project’s faults cannot be overcome.
116. In terms of testimony, Ms. Baker stated that her testimony should not be construed as advocating for or against the Project but was offered to identify seven factors the County believes should be considered by the Commission. First, Ms. Baker testified the County’s zoning ordinance “currently addresses the County’s desire to limit large scale solar energy generating facilities (SEGS) through a regulatory prohibition of these uses in our designated land preservation areas, including the Priority Preservation Area and Rural Legacy
Area.”157 She noted the referenced areas, defined in the CP, have been part of the County’s long-standing policies of supporting both preservation and agricultural operation efforts.
Ms. Baker requested the Commission consider the impact of utility-scale solar facilities on land preservation and agricultural operations.158
117. Next, Ms. Baker stated, “Some County Commissioners have expressed a preference that proposed SEGS to be located in close proximity to existing electrical transmission lines capable of handling new connections.”159 She asserted that according to PPRP’s Smart
DG+ web map, the Project was outside a 4-mile corridor around 3-phase 69 kV lines.160
The County expressed concerns about the possibility of additional infrastructure being required to connect to the distribution grid. The County’s Planning Commission has also expressed a preference that interconnections be made underground rather than overhead as the latter “could result in a dangerous situation inviting an accident or mischievous act.”161
156 Id. 157 County Ex. 1 at 2. 158 Id. 159 Id. 160 Id. 161 Id.
37 118. Ms. Baker indicated that such projects should not be constructed in environmentally sensitive areas, including floodplains and buffers, in habitats of threatened or endangered species, and steep slopes.162 She noted that all new development should conform to the
County’s policies and regulations related to environmental stewardship as set forth in the
CP and zoning ordinance.
119. Ms. Baker also noted the potential impacts on both historic and cultural resources.
She testified the zoning ordinance prohibits solar generating stations in the Antietam
Overlay districts and should not be permitted in key viewshed areas, such as Scenic
Byways.163 Ms. Baker noted these areas are a primary basis for the County’s tourism economy and such projects could negatively impact those areas.
120. The County’s zoning ordinance includes a requirement that a decommissioning and reclamation plan be submitted in the development process. Ms. Baker testified, “The
County has long interpreted this provision to require the posting of a Decommissioning
Bond as the adequate assurance that such a plan will be funded and faithfully implemented at the end of the useful life of the project,” and requested the Project, if approved, include such a condition.164
121. In relation to the forest conservation, Ms. Baker explained the County sought the
Applicant’s compliance with the FCA and the County’s FCO.165 This requires the submission of a Forest Stand Delineation prior to construction and obtaining the Planning
Commission’s approval.
162 Id. at 2-3. 163 Id. at 3. 164 Id. 165 Id.
38 122. Finally, Ms. Baker highlighted the Planning Commission’s recommendation that fencing be installed for safety purposes. She stated the fencing must be maintained and should protect or limit disturbance of wildlife corridors, and buffering and landscape should also be considered.166
123. During the first evidentiary hearing, Ms. Baker testified the Project is a type of use that was not contemplated at the time the current CP was adopted in 2002.167 She explained the CP in terms of a use’s scale, the character of neighborhoods, and that compatibility can be subjective, and that it was difficult to say whether the Project truly conforms with the
CP. In relation to the Site’s location next to the edge of a rural village, she testified that
Perennial has attempted to address the issue of ensuring the natural edge of the village and the agricultural open space through the proposed buffering.168 She explained the site plan consideration and approval process can either take place before the BZA or the Planning
Commission.
124. In response to questions from the bench, Ms. Baker confirmed that she did not have any outstanding concerns based upon PPRP’s analysis or after the referenced conversation with Ms. Shatto in which she participated.169 In response to a question regarding the
Project’s consistency with the zoning ordinance, she testified, “To my knowledge, yes, I believe they would, they would conform to the zoning ordinance based upon what small regulatory requirements we did include,” but added that she could not comment on issues such as the location, enhanced setbacks, or issues that could be brought before the BZA.170
166 Id. at 4. 167 Transcript (“Tr.”) at 152-153. 168 Tr. at 155. 169 Tr. at 162. 170 Tr. at 163-164.
39 Ms. Baker indicated that CP updates are required every 10 years; however, the County updated a significant portion of its CP in 2012 and got a “restart,” thus, the County’s next update to the CP is due in 2021. On further cross-examination, Ms. Baker indicated that when a special exception is considered, the BZA could address planning consistency and compatibility/incompatibility with surrounding uses and properties.
D. The Neighbors
125. Mr. Wantz provided a background of rural villages which were created as part of
Maryland’s Economic Growth, Resource Protection, and Planning Act in 1997. He stated the Statewide smart growth policy included protecting Maryland’s existing rural population centers, which was embraced by the County as it sought to protect 55 rural villages from inconsistent encroaching development.171 Mr. Wantz cited Land Use Article, Annotated
Code of Maryland (“LUA”) § 1-301 as authority for “enhancing the obligatory protection of rural villages from encroachment, inter alia, in plan implementation, in furtherance of smart growth policies established in 1997 under the Economic Growth, Resource
Protection, and Planning Act.”172 He also cited the Commission’s requirement to give due consideration, pursuant to PUA § 7-207(e)(3)(i), to the consistency of an application with the respective jurisdiction’s comprehensive plan and zoning where a project is proposed to be located. Mr. Wantz highlighted the Maryland Court of Appeal’s decision in Perennial
Solar which noted the importance of local planning and zoning policy making.173
171 Neighbors Ex. 1 at 3. 172 Id. 173 Id at 4, citing 464 Md. at 644, n. 22.
40 126. Mr. Wantz addressed the evaluation of the Project’s consistency with the County’s
CP and zoning. He testified, “It has long been established in Maryland land use jurisprudence that a proposed use of land may properly be disallowed if it is of such size and scale as would ‘overwhelm and dominate the surrounding landscape.’”174 Mr. Wantz cited the County’s CP which states, “Standards should be considered that promote the thoughtful design of the total site that is in harmony with the scale and character of the surrounding rural landscape.”175
127. Mr. Wantz asserted that the Applicant seeks to construct a massive non-residential project interposed among residential homes that “would materially degrade the residential character of their rural neighborhood.”176 He explained that solar investors target undeveloped farmland, which can be surrounded by residential homes, and the investors are unaware of local development patterns. Prior to preemption, Mr. Wantz indicated that locations were differentiated between suitable and unsuitable by the local government through the special exception process which furthered the goals and objectives of the CP.
According to LUA § 1-101(p)(2), a special exception requires a finding that “the use of the subject property is consistent with the plan and is compatible with the existing neighborhood,” and LUA § 1-303 notes that for a use to be consistent with the CP, “an action taken must ‘further, and not be contrary to’ the policies in the plan.”177
128. Mr. Wantz stated the CP designated Cearfoss as a rural village and “is a rural population center located at the intersection of three highways, Maryland Routes 58, 63,
174 Neighbors Ex. 1 at 4-5, citing People’s Counsel for Baltimore Co. v. Mangione, 85 Md. App. 738, 752-753 (1991). 175 Neighbors Ex. 1 at 5, quoting CP at p. 285. (emphasis in original) 176 Neighbors Ex. 1 at 5. 177 Id.
41 and 494.”178 He indicated that Cearfoss was one of the earliest settled areas in the County and that maintaining the property values in rural villages helps preserve the County’s architectural and historic heritage. Mr. Wantz noted the CP has a rural policy that advocates “giving priority to maintaining farm land, forest, historic resources and environmentally sensitive areas.”179 He stated the CP promotes new development
“compatibility with existing development in rural areas of Washington County,” and advocates the preservation of the rural character of rural areas.180
129. Mr. Wantz indicated that the County’s zoning ordinance defines the purpose of a rural village as follows:
The Rural Village designation is provided to preserve the unique historic or rural character of existing villages by encouraging compatible development within a defined village boundary. It also identifies clusters of existing development in the rural areas that may be candidates for public facilities in the future. The zone intends for permitted development to be generally of a similar density, scale and use type and mixture as that which exists in the village. The zone is also designed to prevent large amounts or inappropriately scaled development or uses that would detract from the existing rural or historic character of the village. It is expected that development will be residential and a limited amount of mixed rural services. More than one use may be permitted on one parcel in accordance with specific guidelines. Public water and sewer may be available for the purpose of resolving or preventing health issues. Use of public utilities to permit greater density than the density specified in this section is not permitted.181
Next, Mr. Wantz pointed out the CP’s Community Design Standards (Rural Area)
“[r]equire[s] development on the edge of a Rural Village to be designed to extend the fabric of the existing development and insure that the natural edge between the Village and the
178 Id. at 6, citing CP at 251. 179 Neighbors Ex. 1 at 6, citing CP at 248. 180 Neighbors Ex. 1 at 6, citing CP at 247. 181 Neighbors Ex. 1 at 6-7, citing the County’s zoning ordinance, § 5D.0.
42 adjacent agricultural or open space area is maintained.”182 He also indicated that the rural village’s fabric is protected from incompatible land uses and new development by developing specific design standards.
130. Mr. Wantz claimed the Project would disrupt the extension of Cearfoss by compromising the intended development pattern and the existing community, and the
Project would be contrary to the CP’s policies.183 He averred that the Project’s size and scale on the edge of a rural village “does not constitute a use which is ‘designed to extend the fabric of the existing development’ or ‘that is in harmony with the scale and character of the surrounding rural landscape.’”184 Mr. Wantz testified the Project was “repugnant to the policies in the local comprehensive plan and statewide planning goals, disrupting future residential development of a legislatively designated rural village, identified and planned under Maryland’s statewide land use policy as an emerging population center intended to service anticipated future population growth.”185
131. Mr. Wantz explained Cearfoss’ location at the crossroads of several State and
County transportation corridors can support future population growth, and public water has been extended to parts of Cearfoss. He stated, “These future population centers, strategically selected and designated cooperatively by State and local government, are essential to Maryland’s plan to accommodate projected statewide population growth in the
21st century.”186
182 Neighbors Ex. 1 at 7, citing CP at 295. (emphasis in original) 183 Neighbors Ex. 1 at 8. 184 Id. 185 Id. 186 Id.
43 132. Mr. Wantz dismissed the Applicant’s reliance of the County’s BZA decision to support its claim of the Project’s consistency with the CP. He claimed the BZA’s decision was vacated, therefore it could not be used to support the Applicant’s position.187
133. Mr. Wantz testified the Project’s size and scale would deter future growth of
Cearfoss and undermine both the State’s and County’s planning objectives and policy goals. He indicated that potential home buyers do not maintain interests in properties that are adjacent to incompatible uses, such as communication towers, dog kennels, shooting ranges, wastewater treatment plants, landfills and quarries, and solar farms.188 Mr. Wantz also claimed that a home adjacent to such an incompatible use will sell for less than the same home without such an incompatible use. He stated that disapproving the Project would preserve property values and rural village sustainability.189
134. Mr. Wantz noted the County’s support for utility-scale solar projects which are permitted by special exception in both the rural and conservation zones. However, he stated the County’s zoning policy disfavored uses where “properties in the general neighborhood would be adversely affected” and where the use in the particular case would not be “in harmony with the general purpose and intent of the plan.”190 Mr. Wantz concluded that the Project’s location adjacent to an existing designated rural village conflicted with the County’s zoning policy and the CP, and recommended the Application be denied.
135. During the evidentiary hearing, Mr. Wantz testified the Site does not lend itself to buffering due to the topography and that some properties would have an unimpeded view of
187 Id. 188 Id. at 9. 189 Id. 190 Neighbors Ex. 1 at 10, quoting Schultz v. Pritts, 290 Md. 1 (1981).
44 the entire Project, while others will have such a view for 5 to 10 years while the buffer matures. He found the size, scale, and character of the Project combined amplify its incompatibility.191 In response to questions from the bench, Mr. Wantz confirmed that the design standards to maintain the fabric of an existing rural village with any new development had not been incorporated into any County regulation or zoning ordinance, and that he did not know if Cearfoss would be extended.192
E. Staff
136. Mr. Zhong addressed the Project’s impact on the reliability and stability of the
State’s electric system. He described the Project and how generators connect to the regional transmission system. Mr. Zhong testified that an interconnection customer must comply with the PJM Open Access Transmission Tariff and, upon request of an interconnection request, PJM conducts sequential studies provided the customer meets certain requirements to retain its queue position.193 The studies include the Feasibility
Study, the Impact Study, and the Facilities Study, and determine what system enhancements are required to accommodate the generator and to maintain the reliability and stability of the transmission system. The customer seeking to interconnect will be financially responsible for any required upgrades to the distribution or transmission system.194
137. Mr. Zhong testified, “PE will be responsible for tapping the Halfway-Milnor
34.5 kV line including 34.5 kV metering package, and for revising relay settings at the
191 Tr. at 181. 192 Tr. at 190-192; see Neighbors Ex. 1 at 7-8. 193 Staff Ex. 1 at 4. 194 Id. at 5.
45 Halfway-Milnor substations,” and PE will also construct recloser and communications equipment that will permit PE to isolate the Project to address operational events that could impact the electric system.195 The Project has a generator interconnection queue
No. AA1-092.
138. Mr. Zhong described the required PJM studies and noted that neither the Feasibility nor the System Impact Studies identified the need for either transmission system reinforcements or transmission network upgrades, and power flow results indicated that no facility upgrades in the PE service territory are required.196 The estimated costs of the upgrades necessary to interconnect are $302,000. He noted that an ISA and CSA were signed on December 21, 2015. Mr. Zhong noted the Project remains in the planning phase, the engineering aspects have not been finalized, and the final equipment has not yet been selected.
139. Mr. Zhong described the Project’s impact on reliability and stability on Maryland’s electric system. According to the PJM’s System Impact Study, the Project will not adversely impact Maryland’s electric system, must comply with PE’s and PJM’s interconnection requirements and complete the specified facility upgrades and milestones set forth in the ISA and CSA.197 He concluded that the Project would not impact the reliability and stability to the State’s grid.
140. Mr. Zhong recommended the Applicant receive a CPCN conditioned upon the following: that a request be filed for a CPCN amendment for any generation capacity in excess of 8 MW; require the Applicant to file an executed ISA and CSA with PJM and PE
195 Id. 196 Id. at 6. 197 Id. at 8.
46 with the Commission prior to commencement of construction; require the Applicant, its successors and assigns provide 60 days written notice to the Commission of any non- wholesale electricity sale to a Maryland retail customer and comply with all regulations regarding such sale including obtaining any requisite Interconnection Agreement(s) and retail supplier approval(s) prior to delivering electricity into the respective system of
Maryland electric companies; that the Applicant, its successors and assigns provide written notice of any change in ownership of all or any portion of the Project at least 30 days prior to the closing date of any sale to a third party and include specific information; and include any additional conditions proposed by other State agencies.198
F. Applicant’s Rebuttal
141. Mr. Anderson explained the modifications to the Project since the filing of his previous testimony. Based upon PPRP’s recommended license condition, the landscape buffer has been doubled from 25 feet to 50 feet where the Project shares a property boundary with a parcel that has a residence.199 The additional 25 feet of landscaping will extend into the Project area, thereby leaving the current setbacks to residences unchanged.
142. Mr. Anderson agreed with and accepted both PPRP’s and Staff’s recommended license conditions. In relation to the County, he noted that Ms. Baker did not express either support for or opposition to the Project but requested the Commission to consider seven topics in its review. Mr. Anderson believed that PPRP’s testimony, PAR, and
198 Id. at 9-10. 199 Applicant Ex. 8 at 1-2.
47 recommended license conditions addressed the issues raised by Ms. Baker, and Staff addressed concerns related to interconnection.200
143. In relation to the consumption of prime farmland, he testified, “[t]he project will not destroy agricultural land, and in fact, will preserve and even rejuvenate soils on the properties.”201 Mr. Anderson indicated that the multi-species prairie grass and pollinator plant surface cover that will be planted, in consultation with the County’s soil conservation team, will be beneficial to the soil. He explained after 30 to 40 years of growth and management, “the deep-rooted plants will yield a rejuvenated, deep soil system that has promoted clean surface and shallow groundwater, prevented erosion, and provided habitat for ground dwelling mammals and ground nesting birds, and the flowering plants will encouraged [sic] the increase in numbers of pollinating insects and other pollinating animals.”202 Mr. Anderson concluded that the Project will actually enhance the soil health over time and can be farmed again after the Project is decommissioned.
144. Mr. Anderson explained the Project had been approved to interconnect to the distribution system and that the lines to interconnect would be run underground.
145. In relation to the impacts to environmentally sensitive areas, Mr. Anderson stressed that numerous studies determined, and PPRP confirmed, that the Project, as designed, would not impact those areas.203 He reiterated that environmental benefits of the Project, including rejuvenated soils, the pollinator habitat, positive impacts to water, and reduced runoff. Mr. Anderson stated all of those benefits directly conform to the CP and zoning ordinance.
200 Id. at 3. 201 Id. 202 Id. at 4. 203 Id. at 4-5
48 146. He noted the Project does not lie within the Antietam Overlay District and there are no anticipated impacts on either historical or cultural resources.204 Mr. Anderson indicated the proposed buffer would mitigate the viewshed impacts from nearby roads which will be at least 300 feet away from the buffers. The Applicant’s revised concept site plan demonstrated minor shifts to the Project’s outline and increased setbacks from property lines.205
147. Mr. Anderson also discussed how the Project was compliant with the CP and meets the goals of the CP. He testified, “The Perennial Solar project provides environmental benefits through rejuvenation and preservation of soils and farmland, creation of habitat, improvements to water quality, reduction of soil erosion as compared with the current mono-crop surface system.”206 In relation to zoning, Mr. Anderson noted that the zoning code describes solar projects as low impact, the buffering will meet or exceed the County’s solar ordinance requirements, and the income derived from the Project will help the owners diversify their income.
148. Mr. Anderson responded to Mr. Wantz’s testimony, which he described as more of a brief than testimony, and comments made during the initial public hearing. First, in relation to concerns that the Neighbors’ views would be eliminated, Mr. Anderson stated that the landowner could develop his land with an approved use that would similarly impact the current viewshed; therefore, he did not believe objections to the replacement of the current views of the farm with vegetation were valid.207 He also dismissed the claim that the land must remain farmland for the Neighbors’ enjoyment directly as it conflicted with the CP
204 Id. at 5. 205 Id. at 6 and TAA-5 - Ex. 1. 206 Applicant Ex. 8 at 6. 207 Id. at 8.
49 and zoning ordinance which both anticipate potential changes in land use over time.
Mr. Anderson testified, “that County legislative bodies have authorized many land uses that would have the same impact (i.e., taking away the view), a number of which are considered by the County to be ‘Permitted’ – which means they are ‘uses by right’, only subject to development review requirements under the code during site plan approval.”208 Such uses include, but are not limited to schools, day-care facilities, single, two-family, and mobile homes, which all could install fencing and buffering for privacy purposes.
149. Mr. Anderson also disagreed with Mr. Wantz’s concerns about the Project’s compatibility with the neighborhood as it was not sufficiently rural in character.
Mr. Anderson again pointed to the zoning ordinance at Table 3.3(1), which includes SEGS, and lists many principally permitted uses which are considered to be rural land uses, and are appropriate for the neighborhood without a discretionary review.209 He testified that given the Project’s buffer, lack of odors, lack of permanent impervious surfaces or traffic, the reduced sediment runoff, improved soil, surface and groundwater health, and its rural nature, the Project was in line with the County’s expectations for the neighborhood based on the zoning ordinance’s permitted uses.210
150. Mr. Anderson found concerns expressed during the public comment hearing regarding the buffer constituting a nuisance or hazard to be misguided and in conflict with the County’s forestation policies. He indicated that most land uses must comply with the
County’s FCO, which prioritized onsite plantings when possible.211 He believed that
208 Id. 209 Id. at 9 and TAA-5 - Ex. 2. 210 Applicant Ex. 8 at 9. 211 Id. at 10.
50 regardless of the land use on the property, it was likely that planting forest-like vegetation would be close to the Site’s boundaries.
151. Mr. Anderson similarly disagreed that the Project would negatively impact property values. He testified this issue has been addressed in other CPCN cases which generally found no diminution in property values and noted his agreement with PPRP’s assessment that properly buffered solar projects have not been shown to impact property values.212 In response to concerns about the rural village referenced in Mr. Wantz’s testimony,
Mr. Anderson noted the Project is located in the A(R) zone, not the Rural Village zoning district.
152. During the evidentiary hearing, Mr. Anderson provided a color copy of the Project’s conceptual site plan pursuant to requests made during the second public comment hearing and the Applicant’s responses to PPRP’s DRs 3 and 4.213 Mr. Anderson confirmed that the
Applicant agreed to both PPRP’s and Staff’s recommended license conditions without any amendments.214 He also responded to two areas of concern expressed during the second public comment hearing. First, in response to a citizen who asserted her backyard would be a “sea of glass” and the Project would be in her backyard, Mr. Anderson submitted pictures in an effort to demonstrate the distances from homes adjacent to the Site and to simulate the proposed landscape buffer.215 Mr. Anderson testified that the Project would be at least
560 feet from the individual’s home who expressed concerns and that there would be a
12-acre area of open space, which is part of the Site, behind that particular home that will
212 Id. at 11. 213 The color conceptual site plan and data responses, and the Applicant’s glare analysis were entered into the record as Applicant Exs. 10 and 12, respectively. See also PPRP Ex. 5. 214 Tr. at 24-26, and 56. 215 Tr. at 29-42; see Applicant Ex. 11.
51 remain available to the property owner.216 He also noted there was currently pasture fencing that separates that particular home from the Site.
153. Secondly, in response to an individual’s viewshed concerns, Mr. Anderson testified that the proposed buffer would be approximately 275 feet from that particular home and
155 feet from the property line. He described several photographs, some with simulated buffers imposed, to demonstrate what residents will see once the buffer was planted.217
154. On cross-examination, Mr. Anderson confirmed that he did not measure the distance between the proposed buffer and a particular residence whose owner claimed that their home would be surrounded by the Project on two sides.218 Next, Mr. Anderson testified that Ms. Shatto, HCWHA’s Executive Director, neither supported nor opposed the Project and that he spoke with her for approximately 20 to 30 minutes along with PPRP and Staff.
He confirmed the Applicant’s agreement to work with the HCWHA to mitigate any concerns.219
155. In response to questions from the bench, Mr. Anderson confirmed the Applicant had officially filed both the ESD concept plan and the glare analysis. Mr. Anderson explained the Applicant’s updated glare analysis demonstrated that the buffering would mitigate the potential for glare on Greencastle Pike and nearby homes, and he did not believe glare would impact traffic on Route 81.220 Additionally, Mr. Anderson added that the Applicant
216 Tr. at 33-34. In his Supplemental Rebuttal Testimony and during the Second Evidentiary Hearing (“SEH”), Mr. Anderson indicated the area was actually 14 acres. See Applicant Ex. 15 at 3 and SEH Tr. at 27. 217 Tr. at 42-48 and Applicant Ex. 11, slides 1-4. 218 Tr. at 59-60. 219 Tr. at 64-65. 220 Tr. at 74-76.
52 would re-run its glare analysis once the specific type of module was selected in order to verify there would be no glare on the Hagerstown Regional Airport’s control tower.221
156. In relation to the buffer, Mr. Anderson stated the Applicant proposed two types of evergreens to be planted but the Applicant was happy to consider other types as part of the site plan development process. He also offered to meet with individuals that reside at a higher elevation that expressed viewshed concerns. Mr. Anderson stated that on other projects where property owners had viewshed concerns, the respective applicant planted buffers on other property’s boundaries to address those concerns.222
157. Mr. Anderson testified he has worked on projects that involved Civil War and cultural resources issues and he was confident the Applicant could work with the HCWHA to mitigate any issues created by the Project.223 He indicated that the Applicant, Staff,
PPRP, and Ms. Shatto agreed on a teleconference that PPRP’s proposed license condition was appropriate as proposed.
158. In terms of the CP, Mr. Anderson explained the Site is not located within one of the areas, namely priority preservation, the Antietam Overlay, and Rural Legacy Area, which prohibit utility-scale solar facilities, the Site is zoned A(R), and Section 4.26 of the
County’s zoning ordinance anticipated such a facility being located near the boundary of land with another zoning designation by mandating buffers.224 He also claimed that solar facilities are appropriate in a rural setting as they are low impact, create little impervious surface, are quiet, do not create additional traffic, and are temporary in nature.225
221 Tr. at 76-77. 222 Tr. at 81-82. 223 Tr. at 85-86. 224 Tr. at 89-90. 225 Tr. at 91-92.
53 159. Finally, Mr. Anderson explained that the Applicant had not had any dialogue with the County because it expressed its opposition to the Project very early in the process.
However, Perennial would consider any compromise offered by the County.
G. PPRP’s Rebuttal
160. Mr. Seaman noted PPRP’s general agreement with the factors both set forth in
Ms. Baker’s testimony and analyzed in the PAR and agreed they should be considered.226
He addressed each of Ms. Baker’s concerns and noted the applicable license conditions that addressed each concern.227
161. Mr. Seaman noted PPRP included a second new license condition to address potential subsurface concerns. He quoted a Perennial data response which stated the
“project’s design engineer will conduct the necessary geotechnical studies specific to the solar module racking design while developing the building permit package.”228 The study has not been completed to date and, during the public hearing, individuals referenced the prevalence of sinkholes near the Site. Therefore, PPRP included a license condition that the
Applicant be required to provide a geotechnical assessment for the Site to the Commission and PPRP prior to the start of construction and to develop a contingency plan for repairing sinkholes if it is determined such a plan is necessary.229
162. Dr. Hall verified that the Site now falls within the HCWHA based upon an approved adjustment of that area by the Maryland Heritage Areas Authority on April 13, 2017.230 He indicated that the HCWHA boundary adjustment was not included in Perennial’s filing on
226 PPRP Ex. 9 at 2. 227 Id. at 3-8. 228 Id. at 8, quoting PPRP Ex. 5 - Response to PPRP DR 5-4. 229 PPRP Ex. 9 at 9 and PPRP Ex. 11 – Revised License Condition 9. 230 PPRP Ex. 12 at 1-2.
54 August 31, 2020. Dr. Hall testified, “According to its Management Plan, the HCWHA includes places where significant Civil War activities took place, towns and villages where events unfolded, and ‘linear areas’ that follow troop movements during major conflicts.”231
Dr. Hall testified that based on the boundary adjustment, the Site now includes an area where the Battle of Cunningham’s Crossroads (Battle of Cearfoss) took place on July 5,
1863 at the intersection of what is now known as Greencastle Pike and Cearfoss, where
Union cavalrymen attacked a Confederate wagon train retreating from Gettysburg.232
163. He indicated that the Financial Institutions Article, Annotated Code of Maryland
§ 13-1112(b) requires units of the State government “to conduct or support activities affecting a certified heritage area to consult, cooperate, and to the maximum extent feasible, coordinate their activities with the unit or entity responsible for the management of each certified heritage area.”233 Accordingly, PPRP sent the HCWHA a letter requesting its evaluation of the Project.
164. Dr. Hall also explained PPRP included another license condition that requires
Perennial to consult with the HCWHA to address any concerns through mitigation strategies negotiated with the HCWHA.234 He noted this approach was consistent with previous CPCN projects located within an HCWHA.
165. In response to questions from the bench, Dr. Hall stressed PPRP’s recommendation that the landscape buffer height be increased from 10 feet to 20 feet as “a pretty substantial height for a buffer and provided that it grows to maturity and works as advertised, it will
231 Id. at 2. (footnote omitted) 232 Id. 233 Id. at 3. 234 Id.; see PPRP Ex. 11 – Revised License Condition No. 32.
55 provide as much visual relief as I think would be necessary.”235 He agreed with
Mr. Anderson that once the buffer matures, the Project would not be visible from any highways and that the Applicant would be required to mitigate any glare on Greencastle
Pike once the panels have been selected and the glare analysis has been redone.
166. In relation to the potential for glare on the control tower at the Hagerstown Regional
Airport, Dr. Hall’s analysis found that a deeply textured glass panel would not comply with the FAA notice criteria due to the potential impact on the air traffic control tower and that
FAA standards require no glare of any type should be on the air traffic control tower.236
Dr. Hall explained that once Perennial selects which panel will be used, PPRP will consult with the MAA on the results of the new glare analysis.
167. Dr. Hall testified that he did consider properties that are at a higher ground level than the Project and agreed it was possible that the buffer may not screen the entire array.
However, his assessment found “there may be parts of the array which are visible but in most cases it’s only a small percentage of the array and at a distance.”237
168. Dr. Hall anticipated that mitigation related to the HCWHA would be similar to a case in Union Bridge in Carroll County, Maryland. In that case, the mitigation included additional landscape buffering, signage, the opportunity for archeological investigations, and the avoidance of certain areas.238
235 Tr. at 111. 236 Tr. at 113-114. 237 Tr. at 115-116. 238 See Case No. 9483, In the Matter of the Application of Citizens UB Solar, LLC for a Certificate of Public Convenience and Necessity to Construct a 9.9 MW Solar Photovoltaic Generating Facility in the Town of Union Bridge and Carroll County, Maryland, Order No. 89548, slip op. (dated April 27, 2020) affirming Proposed Order of Public Utility Law Judge (dated February 13, 2020) (“CUB Solar”).
56 169. Mr. Strebel anticipated the proposed landscape buffer would provide more shelter for animals but did not believe it would attract new or different predators.239 In response to a concern from the public comment hearing, he disagreed that animals would be forced into adjacent properties’ backyards because there will be a couple hundred feet of open space between the perimeter fence and the actual yards. Mr. Strebel addressed the stormwater issue raised during the public hearings and indicated that grasses planted on the Site will be permanent and provide infiltration and would be better than the existing fields. He opined that the grasses, if properly planted and maintained, will tend to reduce the water flow.240
170. Mr. Seaman explained his understanding of the conversation with Ms. Shatto and the Applicant in which he participated. He believed, “the two parties agreed on the condition and that some consultation would happen after this evidentiary hearing,” and the condition was both appropriate and workable.241 On cross-examination, Mr. Seaman confirmed that Ms. Shatto did not have any potential mitigation in mind at the time of the call, which occurred on October 23, 2020.
H. Staff’s Rebuttal
171. Mr. Zhong explained the types of agreements necessary to interconnect to the distribution system. He stated that Perennial executed an ISA because, according to PE, an
ISA, rather than a WMPA, was appropriate because the line the Project will interconnect to is an interstate line.242
239 Tr. at 129. 240 Tr. at 134. 241 Tr. at 137. 242 Staff Ex. 2 at 1-2 and Ex. KHZ-3.
57 I. PPRP’s Supplemental Testimony
172. Dr. Hall summarized PPRP’s consultations with HCWHA prior to the evidentiary hearings and noted that PPRP added a license condition – Condition No. 32 (Heritage Area
Consultation) – that required the Applicant to consult with the HCWHA management unit and address any concerns through mitigation.243 After the initial evidentiary hearing,
Dr. Hall testified that PPRP and HCWHA had a telephonic conference on October 29, 2020 which focused on specific mitigation proposals and the heritage area in which the Site is located.244
173. Dr. Hall indicated that four conditions addressed HCWHA’s concerns: Condition
No. 20 (Landscape Buffer); Condition No. 25 (Glare Analysis); Condition No. 31
(Archeological Discoveries); and Condition No. 32 (Heritage Area Consultation).245 He testified that during the meeting, Ms. Shatto indicated that HCWHA did not intend to pursue mitigation beyond what PPRP had already recommended. Ms. Shatto subsequently provided written confirmation that HCWHA stood by its initial comments and would not propose mitigation beyond the conditions proposed by PPRP.246
174. Based on his experience and PPRP’s review, Dr. Hall opined that no further mitigation was needed.247 He did note that in the event Perennial makes any relevant discoveries, Perennial should consult with HCWHA.
243 PPRP Ex. 13 at 1-2. 244 Id. at 3. 245 Id. at 2-3; see PPRP Ex. 11. 246 PPRP Ex. 13 at 3 and Appx. C. 247 PPRP Ex. 13 at 4.
58 J. Neighbors’ Supplemental Testimony
175. Mr. Wantz described the photographs offered into evidence by the Applicant during the first evidentiary hearing and additional photographs provided by the Applicant in discovery after the evidentiary hearing.248 He submitted the additional photographs, which he took with a 36-millimeter (“mm”) focal length lens, that he believed provided a more realistic and accurate representation of the subject property than those offered by
Perennial.249
K. Applicant’s Supplemental Rebuttal Testimony
176. Mr. Anderson described his conversations with Ms. Shatto and explained that he provided the HCWHA with the Project’s Conceptual Site Plan that demonstrated the
Project’s buffer was more than 300 feet from Greencastle Pike and more than 700 feet from
Fairview Road.250 He indicated that he participated in a phone call with Ms. Shatto and
PPRP representatives that resulted in PPRP recommending additional license conditions that would require additional mitigation measures. Mr. Anderson testified that PPRP’s conditions required Perennial to maintain the proposed setbacks from Greencastle Pike and
Fairview Road and the proposed vegetative buffers, to develop a plan for avoidance and protection of any discovered relics, and to consult with HCWHA to address any further concerns.251 Mr. Anderson supported PPRP’s proposed conditions and believed they addressed the HCWHA’s concerns.
248 Neighbors Ex. 2 at 1-2. 249 Id. at 2. 250 Applicant Ex. 15 at 1. 251 Id. at 2.
59 177. In response to Mr. Wantz’s Supplemental Testimony, Mr. Anderson expressed disagreement to the extent the photographs and videos Mr. Wantz submitted imply that the
Kendall property will be adjacent to the Project. Mr. Anderson stated that during the first evidentiary hearing, “we illustrated in our presentation that the project’s visual buffer will be more than 550 feet away from Mrs. Kendall’s property, and that the 14 acres of pasture area immediately behind her house will not be part of the solar project,” and Mr. Wantz’s photographs do not show otherwise.252
L. Second Evidentiary Hearing
178. In response to questions from the bench, Mr. Wantz indicated his belief that the most commonly used lens was a 50-mm lens.253 He claimed that a 50-mm lens comes on most film and digital cameras, whereas an iPhone 10 has a 36-mm focal lens. Based upon his internet research, Mr. Wantz stated, “It would seem to me that there was a general consensus in the photographic profession a 50-millimeter lens is what many call a standard lens.”254 He concluded that in some of Mr. Anderson’s photographs, objects such as the cattle, the truck, and other landmarks look much further away as compared to the photographs Mr. Wantz submitted.255
179. Next, Mr. Anderson clarified that the Project would require approximately 28,000 to
30,000 panels as estimated by PPRP.256 He also confirmed that the distance from the
252 Id. at 3. 253 SEH Tr. at 20. 254 SEH Tr. at 21. 255 SEH Tr. at 22-23. 256 SEH Tr. at 26-27.
60 Kendall’s property to the buffer was approximately 550 feet, and that the 14-acre area was part of the Barr parcel and will continued to be used by the Barrs.257
M. Public Comments
1. Verbal Comments
180. Two public comment hearings were held, and 11 individuals spoke at the hearings.
Numerous concerns were raised during the hearings, including the Project’s impact on the existing viewshed, noise, property values, the incompatibility of the Project with the surrounding area and the HCWHA, the historic village of Cearfoss, the potential to increase flooding on Greencastle Pike, safety, impacts on wildlife, and the County’s CP and zoning.258
181. Several individuals expressed concerns about the Project being disruptive in both size and scale with existing residential uses. An individual noted that the increased mitigation, doubling of the landscape buffer, was evidence of the potential disruptive effects of the Project. Individuals also stated that the proposed buffer will alter the nearby residents’ current view as the Site’s topography does not lend itself to screening, the screening will not eliminate a large portion of the Project and it will be detrimental to the viewshed. A neighbor found the proposed buffer would also not hide the Project from views from residences on surrounding hills that look down into the valley and the roads entering Cearfoss from Routes 58 and 63. One individual claimed the Project will turn her current view into a sea of glass and will impact the entire rural village community, while
257 SEH Tr. at 27. 258 Mr. Downey also read a letter from the County Commissioners in opposition to the Project. See County Ex. 3.
61 another noted the buffer would not mature for 5 to 10 years. An individual cited two CPCN cases, Case Nos. 9411 and Case No. 9495, that he believed supported his position in relation to esthetics.259
182. An individual provided a power point slideshow that described the owners of several residences near the Site and how long they have lived in their homes. She also noted that in April 2017, the HCWHA boundaries were expanded and now included the
Site. She claimed the County’s Historic District members and Planning Commission agreed that the viewshed and scenic byways should be protected, and the Project could negatively impact tourism.
183. Several individuals expressed concerns about the negative impact the Project would have on property values, especially since many nearby residents were on fixed incomes. A realtor indicated that based upon her current market analysis of several homes near the
Project, she anticipated the property values would be reduced by 20-25% given the close proximity to the Site and that the solar panels would not be appealing to potential buyers.
Another individual indicated that she contacted a realtor about selling, but the realtor estimated the property value would decline by 19-20%, while another realtor estimated a
20-25% loss. An individual also questioned the bases for PPRP witness Hall’s conclusion that there would be no loss in property values based upon the referenced estimates.
259 See In the Matter of the Application of Mills Branch Solar, LLC for a Certificate of Public Convenience and Necessity to Construct a 60 MW Solar Photovoltaic Generating Facility in Kent County, Maryland, Case No. 9411, Order No. 88021 (dated January 10, 2017) (“Mills Branch”) and In the Matter of the Application of Kieffer Funk, LLC for a Certificate of Public Convenience and Necessity to Construct an 11.80 MW Solar Photovoltaic Generating Facility in Washington County, Maryland, Case No. 9495, Order No. 89347 (dated October 15, 2019) (“Kieffer Funk”).
62 184. An individual questioned whether there was a market for the electricity that will be generated by the Project and pointed out that another nearby solar facility sought an extension from the Commission due to difficulty in securing customers.260
185. An individual raised the issue of Greencastle Pike flooding after heavy rains which has been an ongoing problem for homeowners from runoff from the fields from the south end of the Site to the Eby Property on the north end of the Site. Given the development of the area and recent re-paving of Greencastle Pike, which has contributed to the drainage issues, the individual expressed concerns about the Project potentially worsening the flooding.
186. An individual referenced Governor Hogan’s Executive Order related to the development and siting of renewable energy and the Task Force it created to address the numerous issues set forth in the Executive Order. The individual noted the Task Force’s focus on strategies to preserve and protect farmland and property rights while not suppressing renewable energy. The Site currently supports conventional crops, is productive farmland, and classified as land of state-wide importance, and Washington
County is one of the counties that has the highest amount of prime farmland in the State.
The individual highlighted that agriculture remains one of the biggest industries in
Maryland and is critical to the State’s future and economic success.
187. Another individual explained she has lived in the community for 27 years and expressed concerns about the Project being constructed in her backyard. She indicated that her grandsons are autistic, and she provides childcare for the boys and other grandchildren on and off. One of her grandsons is a “runner,” meaning that he can run off without warning if he gets over stimulated, and is very strong, fast, and attracted to shiny reflective
260 See Mason Dixon, Case No. 9426, Docket Entry 36, dated April 10, 2020.
63 items. She expressed concerns for his safety if he were able to scale the fence and get lost within the Project. She also noted that the humming from the inverters could possibly cause ear piercing pain to either of her grandsons.
188. There was an inquiry about the potential for underground caves on the Site. PPRP witness Seaman indicated that the potential presence of caves would depend on the results of a geotechnical plan. There was also a concern about the potential glare from the Project on Route 63 and other surrounding roads and highways.
189. Several individuals raised concerns about the Project’s consistency with the CP and the Site being contiguous to a designated rural village. An individual also noted that the
Circuit Court vacated the BZA’s decision and that the County Commissioners do not support the Project.
190. An individual asserted the proposed landscape buffer would create a habitat for animals, including predatory animals. The perimeter fence will force animals to leave the area through residential yards due to the perimeter fence. An individual expressed concerns with the virtual platform used to conduct the public hearing and that the technology made participating difficult and gave the developer an unfair advantage.261
191. One individual expressed support for the Project and noted the jobs it would bring to the County, as well as contributing to the State’s RPS requirement. He believed concerns about maintaining the buffer should be addressed and that individuals that can demonstrate loss in property values should get a tax credit from the County.
261 In response to this concern, the PULJ indicated that if anyone was aware of individuals having difficulty getting into the hearing to encourage them to submit written comments to the Commission. September 16, 2020 Public Hearing Tr. at 34.
64 2. Written Comments
192. There were numerous written comments submitted that addressed many of the same issues referenced above, with all but one comment opposing the Project. An individual, who indicated that she was the spokesperson for the Cearfoss community described the community. She also submitted a power point presentation of several homes adjacent to the
Site and information about the individual owners and their families, HCWHA maps, data responses from Perennial to PPRP, photographs of her current views, correspondence from the Applicant to the Commission, information about the Civil War Trails program, an email from County witness Baker confirming that the Site is within the HCWHA, and a newspaper article related to the HCWHA.
193. Another person explained his home overlooks the entire field where the Project will be located, and the screening will not block a large portion of the solar panels due to the rolling hills. He also questioned whether anyone from PPRP or the Applicant viewed the
Site from the hillside in order to determine whether the screening was adequate. An individual claimed the buffer would be made up of prairie grass and pollinators and would do nothing to hide the Project even with doubling the buffer width.
194. Ms. Shatto’s letter indicated that the HCWHA respected the County’s position and the opposition of citizens that live nearby the Project.262 Ms. Shatto explained that the area south of Cearfoss played a role in the 1862 Maryland campaign as a U.S. calvary column escaped from Harpers Ferry heading to Pennsylvania to warn Union authorities. In 1863, she stated that General Robert E. Lee’s army used Williamsport-Greencastle Pike to travel to Gettysburg, which was followed by the July 5, 1863 Battle of Cunningham’s Crossroads
262 See PPRP Ex. 13 – Appx. A.
65 where Union calvary attacked a retreating Confederate wagon train.263 Ms. Shatto concluded that it was difficult to determine the impact the Project would have on heritage tourism but asserted that the County’s greatest tourism assets are its preserved rural landscapes that look like they did in the 1860s. She stated, “Every time a bit of our rural landscape is destroyed, we chip away at the local heritage tourism product.”264
195. An individual claimed documentation was missing from Perennial’s Application and subsequent filings. The individual also found many unanswered questions in the
Applicant’s Phase I Environmental Site Assessment and that the prime farmland should not be used for solar panels in the middle of single-family homes.
196. Another person submitted a photo slide deck with views of the flooding from his property after heavy rains for homeowners along Greencastle Pike. He explained that he and his wife were against the Project due to the negative impacts on the community’s beautiful area, the viewshed, their property value, and potential health issues. An individual expressed concern about the Project taking agricultural land out of the role of producing food as the world’s population grows and suggested configuring the panels in a manner that would allow for grazing under and around the panels.
197. The Governor’s Task Force on Renewable Energy Development and Siting was cited again in support of an individual’s opposition. The individual also questioned why rural counties are bearing most of the burden of supporting solar facilities and asserted that brownfields, parking lots, and roofs are more suitable for these installations.
263 Id. 264 Id.
66 198. One individual expressed support for the Project and noted that solar panels will reduce the use of fossil fuels, reduce carbon emissions, and may positively impact climate change.
N. Briefs
1. Perennial
199. The Applicant claimed the Project’s benefits were enhanced by PPRP’s recommended license conditions and many of the benefits were not disputed, such as the economic and environmental benefits. Perennial cited the Project’s contribution to the
State’s RPS, the positive impact on the economy and the fiscal benefits to the County, and the environmental benefits, such as planting the Site with prairie grass and pollinator ground cover and reducing runoff.265 The Applicant also claimed that PPRP’s conditions satisfactorily addressed the concerns of the HCWHA.266 Additionally, the enhanced landscape buffers and PPRP’s respective conditions will address any glare-related issues.
200. Perennial dismissed objections to the Project as unsupported. The Applicant argued the County Commissioners’ recommendation should be afforded limited consideration because its claims were unsupported by the evidence.267 The Applicant asserted the
County’s own witness undercut the County Commissioners’ position as she acknowledged
PPRP’s conditions largely addressed her concerns and she “could not conclude that the
Project is inconsistent with the Comprehensive Plan.”268
265 Perennial’s Initial Brief at 3-4. 266 Id. at 4-5, citing PPRP Ex. 13, Appx. 1 – HCWHA’s October 13, 2020 letter. 267 Perennial’s Initial Brief at 6. 268 Id. at 7.
67 201. Perennial claimed the Project was consistent with the both the CP and zoning ordinance, as the latter was based upon the former. The zoning ordinance specifically allows SEGS on agricultural properties in the A(R) zoning district pursuant to the requirements and limitations of Section 4.26. Additionally, PPRP confirmed that the Site does not lie within a Priority Preservation, the Antietam Overlay, or a Rural Legacy
Areas.269
202. The Applicant argued the County’s decision to allow SEGS, with certain requirements and limitations, in the A(R) zoning district was correct as SEGS are inherently rural in character. Perennial also claimed that when the County created the SEGS zoning, it
“specifically contemplated SEGS adjacent properties in various zoning classifications and uses, including residential dwellings … with Section 4.26 providing a detailed prescription for buffer yards, (i.e. setbacks), vegetative screening and other measures to manage potential impacts.”270 The Applicant cited Ms. Baker’s testimony in which she found the
Project would not have any real impact on the County’s infrastructure, and that it was difficult to determine whether the Project was consistent or inconsistent with the CP because it was not specific to deal with the use and what Perennial proposed.271
203. With respect to the potential impacts on the Rural Village, Perennial again cited
Ms. Baker’s testimony as she stated “buffering is a big thing,” that Perennial tried to mitigate those issues, and that the Project conforms with the zoning ordinance.272 The
269 Id. at 8, citing PPRP Ex. 7 at 3. 270 Applicant’s Initial Brief at 9, citing Applicant Ex. 5. 271 Applicant’s Initial Brief at 9-10, citing Tr. 153 and 156. 272 Applicant’s Initial Brief at 11, citing Tr. 155-156 and 163.
68 Applicant also cited a 2011 letter in support of SEGS from the County Commissioners that indicated the County was well-positioned to benefit from that industry.273
204. The Applicant found the Neighbors’ position ignored the County’s prohibition of
SEGS in other areas and that the zoning ordinance contemplated SEGS being located in proximity to other property types. Additionally, as the Application has been ongoing for over five years, the County could have amended either the zoning ordinance or the CP to prohibit SEGS being located next to Rural Villages.274
205. Perennial claimed it resolved issues raised by the County. The Applicant highlighted that it had addressed the seven issues raised in Ms. Baker’s testimony and that she found “Perennial’s project design and PPRP’s conditions adequately allayed the
County’s concerns.”275
206. Next, the Applicant highlighted the landscape buffer that will be 50-feet wide with a minimum height of 20-feet that exceeds the County’s requirements of a 25-foot wide buffer with a minimum height of 10 feet.276 In response to the Neighbors’ concerns about the buffer’s impact on their viewshed, Perennial asserted the County’s zoning ordinance
“defined certain areas of Washington County for a type of viewshed preservation that excludes SEGS on agricultural land: Priority Preservation Areas, Rural Legacy Areas, and the Antietam Overlay Zone.”277 In other words, people in those areas have an expectation that their viewshed would not include a SEGS. Furthermore, the zoning ordinance permits
273 Applicant’s Initial Brief at 10-11, citing In the Matter of the Application of Maryland Solar, LLC for a Certificate of Public Convenience and Necessity to Construct a 20 MW Solar Photovoltaic Generating Facility in Washington County, Maryland, Case No. 9272, Docket No. 20. 274 Applicant’s Initial Brief at 11-12. 275 Id. at 13. 276 Id. 277 Id. at 15.
69 SEGS with conditions, such as buffering, and the CP anticipates the potential for a change in viewshed.
207. The Applicant found concerns about a potential negative impact to property values lacked support. Perennial pointed to Dr. Hall’s testimony and PPRP’s PAR as evidence that SEGS have no discernable impact on surrounding property values.278
2. The County
208. The County Commissioners unanimously opposed the Project based upon the impact on surrounding landowners, the disruption to the scenic area, the inconsistency with both the scale and character of the surrounding rural landscape, and the inconsistency with the CP.279 The County’s recommendation was consistent with the opposition expressed at the public comment hearings, namely economics (property values) and esthetics. In the event the Commission grants Perennial a CPCN, the County recommended the issues raised in Ms. Baker’s testimony were appropriate to be included as conditions.280
3. The Neighbors
209. The Neighbors raised several arguments in support of their opposition, namely
Perennial’s efforts to resolve issues presented by the County, whether the Project was consistent with the CP and zoning, esthetics, and historic sites.281 The Neighbors noted the
County Commissioners’ opposition and cited the Applicant’s failure to have any dialogue with the County. The Neighbors described the CPCN review as a site-vetting process
278 Id. at 16, citing PPRP Ex. 4 PAR at 48-49. 279 County’s Comments at 1-2. 280 Id. at 2-4. 281 Neighbors’ Initial Brief at 2.
70 which extends deference to the local CP and zoning policy that implements the CP.282 The
Neighbors explained, “In performing a location-specific analysis, the County
Commissioners found the project to be plainly disruptive if allowed as and where proposed.”283
210. The Neighbors asserted that it was readily apparent that the Project would be disruptive as evident by the extreme mitigation proposed, and that the General Assembly did not intend to conceal a 60-acre solar installation behind a 20-foot vegetative hedge.284
Furthermore, the Applicant “elected to depart from the statutory process, ignoring the consultative requirement of § 7-207,” as well as disrespecting Maryland’s policy of deference to local governments in land use planning and site compatibility determination.285
The Neighbors argued that the Applicant’s failure to comply with PUA § 7-207 weighed heavily against the Applicant and its arbitrary site selection.
211. Next, the 2002 CP is applicable to the Project and that it was unlikely a future CP would endorse the Project at the Site based on the County’s response. The 2002 CP created rural villages and Cearfoss was included in the initial list of rural villages. The Neighbors stated the rural villages are entitled “to protection from incompatible encroaching development.”286 They claimed the County established a policy of protecting rural villages from inconsistent land use encroachment which included the following recommendation:
“Require development on the edge of a Rural Village to be designed to extend the fabric of the existing development.”287 The Neighbors claimed that edge of a rural village should be
282 Id. at 3. 283 Id. at 4. 284 Id. 285 Id. at 4-5, citing Local Government Article, Annotated Code of Maryland (“LGA”) § 5-212(a). 286 Neighbors’ Initial Brief at 7. 287 Id. at 8, quoting CP at 295.
71 respected and that the CP included a recommendation “to insure that the natural edge between the Village and the adjacent agricultural or open space area is maintained.”288 The
Neighbors claimed a large scale, commercial use between Cearfoss and the surrounding farmland interrupts and undermines the CP’s development plan. Specifically, they argued,
“Because the Applicant’s envisioned use, if approved, would displace and remove from availability land contemplated for residential expansion of the rural village, no amount of mitigation may avoid plan disruption.”289
212. In relation to zoning, the Neighbors noted that solar facilities are only permitted in the A(R) zone as a special exception which requires a finding that the use is both consistent with the CP and compatible with the existing neighborhood.290 In order to receive a special exception, the site proposed must be consistent with the CP in terms of furthering the plan and the development of patterns for rural villages. The Neighbors concluded:
Sixty acres of densely arranged solar panels obscured by a twenty-foot high vegetative hedge on a land mass of 88 acres is atypical of the size and scale of existing land uses comprising the surrounding residential neighborhood with which the proposed use must be compatible under Md. Ann. Code, Land Use Article, 1-101(p)(2)(ii).291
213. The Neighbors also raised the Project’s potential impact on the area’s historic heritage. The Project’s proposed landscaping would screen the Site from the view of those retracing Lee’s retreat from Gettysburg and that historic sites are not amenable to
288 Neighbors’ Initial Brief at 8, quoting the CP at 295. 289 Neighbors’ Initial Brief at 8. 290 Id. at 9. 291 Id. at 12.
72 vegetative screening.292 The Project and screening will be a disruption on the historic terrain and would not offer any mitigation, only an intrusion.
214. In support of the Project’s potential impact on property values, the Neighbors cited the County Commissioners’ opposition letters, the public comments made by a real estate agent, and the neighbors that reside near the Site.293 The Neighbors alleged such impacts on property values would be immediate, severe, and lasting. The landscaping buffer would not be effective given the rolling terrain of the Site, especially given that several of the residences are located at higher elevations and the Project will dominate the area.294
215. Finally, the Neighbors raised an issue related to the County’s site plan process.
They explained the County’s Planning Commission’s review of the Project’s site plan would be subject to a de novo review before the BZA, whose authority to regulate CPCNs has been preempted.295 As such, the Neighbors claim any such issues would be stranded without resolution or administrative mitigation. Therefore, they asserted that any conditions imposed as part of granting a CPCN that require site plan review cannot be satisfied.
4. Staff
216. Staff recommended the CPCN be granted subject to the conditions recommended by
Staff and PPRP. Staff asserted the State’s public policy set forth in the RPS supports the development of solar facilities through the special carve out for Renewable Energy Credits from solar energy, and the RPS’s requirement that 14.5% of the State’s electricity come
292 Id. at 14. 293 Id. at 15-16, citing County Exs. 3-4. 294 Neighbors’ Initial Brief at 17. 295 Id. at 18, citing 464 Md. 610.
73 from solar energy by 2030.296 In order to meet that goal, Staff claimed the amount of solar energy production within Maryland must almost double within the next 10 years.297 Staff set forth the PUA § 7-207(e) factors that must be considered and summarized the evidence in the record in support of each factor.298 Staff concluded that the PUA § 7-207(e) had been satisfied and the CPCN should therefore be granted subject to the recommended license conditions.
O. Reply Briefs
1. Perennial
217. The Applicant noted Staff’s support and its agreement with several of the contested issues, including the Project not being located in a prohibited area, it is a permitted use under the CP, that PPRP’s conditions will mitigate and address concerns related to impacts on historical resources, and that property values and esthetics would not be impacted due to the buffering requirements.299 Perennial claimed the County’s argument fails to provide statutory authority, facts, evidence or explanation, and failed to rebut Mr. Anderson’s testimony that the Project is permitted by the zoning ordinance and CP. The Applicant did not object to PPRP’s and Ms. Baker’s conditions with exception of the proposed modification to Condition No. 19.300
218. In response to the Neighbors, the Applicant found their positions to be subjective and unsupported. Perennial pointed to the HCWHA’s satisfaction with the proposed buffering, that the Project was designed to meet or exceed County standards, and the
296 Staff’s Brief at 11-12. 297 Id. at 12. 298 See id. at 12-21. 299 Applicant’s Reply Brief at 2. (footnotes omitted) 300 Applicant’s Reply Brief at 4, citing Applicant Ex. 8.
74 County’s position that its concerns would be addressed by the adoption of conditions all weigh against the Neighbors’ claim the Applicant failed to resolve issues with the
County.301 Furthermore, Perennial highlighted its attempts to conform to the County’s standards and concerns, considering issues raised by the Neighbors, and accepting conditions to mitigate those concerns.
219. Perennial dismissed claims the Project was inconsistent with the CP. In addition to citing the vacated BZA decision, the Applicant cited a 2019 case in which the Maryland
Court of Special Appeals affirmed a solar project was consistent with Allegany County’s
CP and stated, “The County Code allows for solar farms as a special exception use within the Agricultural Zone generally shows that solar farms have been integrated into the
County’s Comprehensive Plan.”302 The Applicant also dismissed the Neighbors’ position that the law requires that local planning decisions be given deference, rather than given due consideration, as incorrect. In Perennial, the Court of Appeals determined the Commission makes the ultimate decision and that local views were advisory, not controlling.303
220. The Applicant claimed the Neighbors failed to cite evidence that the Project will impact any historic resources and arguments related to esthetics included factual inaccuracies related to the evaluation and topography of the Site and the placement of the landscape buffer. Perennial also dismissed the Neighbors’ reliance on statements from realtors on the Project’s alleged negative impacts on property values as the statements were based on witnesses that did not testify and was conjecture.304
301 Applicant’s Reply Brief at 4-5; see Tr. at 98. 302 Applicant’s Reply Brief at 7-8, citing In re Twigg, No. 2510 at *5 (Md. Ct. Spec. App., March 26, 2019). 303 Applicant’s Reply Brief at 9, citing 464 Md. at 639. 304 Id. at 10-11, citing Neighbors’ Brief at 12.
75 221. Finally, the Applicant disagreed with the Neighbors position that a condition requiring site plan review and approval creates a regulatory gap. The Applicant claimed it was not attempting to avoid the site plan process, rather it agreed to all of the proposed conditions and will work with the County during the process.305 While the Applicant agreed with the Neighbors that discretionary site plan approval was preempted by
Perennial, it was committed to working with the County as indicated by its agreement to
PPRP License Condition No. 19 which required confirmation that the Project was designed in conformity with the County’s Site Plan requirements.306
222. In order to resolve the Neighbors’ concerns, Perennial proposed to amend License
Condition 19 to require the Project’s site plan be submitted “for review and comment” by the County’s Planning Commission and Zoning Department.307 The amended condition will permit the County to ensure the Project’s design was compliant with the license conditions prior to construction, allow the Applicant to receive the County’s feedback, any pre-emption issue will be removed, and it will ensure consistency with Perennial that the
Commission’s approval preempts local decision-making.308
2. PPRP
223. PPRP disagreed with the Neighbors’ contention that the County lacked legal authority to consider and approve a final site plan for the Project and PPRP’s license condition on that issue was nullified. PPRP explained site plan review and approval ensures compliance with local requirements such as site planning, forest conservation,
305 Applicant’s Reply Brief at 12. 306 Id. at 13. 307 Id. at 14. 308 Id. at 15.
76 floodplain management, sediment and erosion control, and stormwater management.309
The site plan review and approval will incorporate any changes and ensure those changes remain consistent with local requirements. Without such a requirement, PPRP argued it
“would leave a significant gap in the permitting process and result in uncertainly regarding compliance with all state, local, and federal environmental requirements,” and efforts to reduce or mitigate adverse effect would be compromised.310
224. In response to the Neighbors’ claim that the Court of Appeals did not contemplate the consequence of judicial zoning preemption on the compliance review in situations where a project was inconsistent with local zoning requirements, PPRP indicated it was unclear if that position was correct or whether the conflict could be resolved by either a legislative or judicial solution.311 PPRP explained that when the Commission preempts a jurisdiction’s zoning, the Commission bears responsibility to assure a project’s compliance with the appropriate State and local requirements.312 It asserted the Commission’s broad discretion as the “final siting authority” would allow it to review and approve a project’s final site plan. PPRP suggested that the Commission could review a final site plan for approval during an administrative meeting in the event the County could not or would not review and approve the site plan.313 PPRP provided an amended license condition that could potentially address this issue and requested the Commission adopt the modification to
Recommended License Condition 19 – Land Use.314
309 PPRP’s Reply Brief at 3, citing PPRP Ex. 4 at 12. 310 PPRP’s Reply Brief at 3 (footnotes omitted). 311 Id. at 4, citing Biggs Ford I Proposed Order at 88-92 and LeGore Bridge Solar LLC, Case No. 9429, Order No. 88613, Dissent, p. D-1 (March 23, 2018). 312 PPRP’s Reply Brief at 5. 313 Id. at 6. 314 Id. at 6-7.
77 3. Neighbors
225. The Neighbors argued that the Applicant failed to provide evidence for the
Commission to evaluate the Project’s impact on the site of the Civil War battle at
Cunningham’s Crossroads.315 The Neighbors claimed that Perennial should have introduced evidence about the Site’s historic characteristics as PPRP was more focused on environmental impacts and no historians testified. The Neighbors detailed the events that led up to the battle and the battle itself, and then acknowledged the information was not in the record, opponents of the Project were not responsible to provide it, and the Commission must consider the omission of that information.316 The Neighbors claimed, “One may not effectively mitigate the adverse effect on a battlefield by concealing or buffering it from public appreciation, or so altering its character to the extent that it no longer resembles its appearance at the time of the associated historic event.”317 Moreover, they claimed the mitigation was poorly conceived.
226. The Neighbors asserted the Applicant cherry picked parts of Ms. Baker’s testimony and claimed Ms. Shatto did not support the Project. They indicated that Ms. Shatto did not participate in creating license conditions, did not speak for the HCWHA’s Board of
Directors, did not participate in the hearings, and was not identified as an historian.318
Instead, the Neighbors claimed Ms. Shatto opposed the Project because she respected the
County Commissioners’ opinion. The Neighbors also attacked License Condition No. 32 which required the Applicant to address any concerns by negotiating mitigation with the
HCWHA because the condition acknowledged the existence of an adverse impact; it
315 Neighbors’ Reply Brief at 2. 316 Id. at 3. 317 Id. at 4. 318 Id. at 5-6.
78 impermissibly deferred a statutory-mandated consideration about the Project’s impact on a historic site to a point after the CPCN has been ruled upon; and impermissibly assigned a non-delegable administrative function to the Commission to be resolved by Perennial and a non-governmental Civil War advocacy group.319
227. In relation to zoning, the Neighbors found both the Applicant’s and Staff’s positions to be misunderstood as SEGS located in the A(R) zone still require a special exception which involves a quasi-judicial administrative process that considers the CP and surrounding land uses. The Neighbors understood Ms. Baker’s testimony regarding the
Project’s consistency with the CP to be neutral rather than conforming to the CP as alleged by the Applicant.320
228. In relation to property values, the Neighbors questioned Dr. Hall’s qualifications as he is not a real estate broker or appraiser and was not qualified to evaluate the Project’s impact on residential property.321 The Neighbors also questioned the independent study referenced by Perennial which was based upon projects in Massachusetts and North
Carolina and lacked details about the mitigation efforts and topography.
229. The Neighbors highlighted the Applicant’s failure to introduce any analysis on property values or to rebut the statements made by a realtor during the first public comment hearing. They claimed the values of the surrounding homes will be impacted for as long as there is no effective buffer, impacting appraisals and resulting in renegotiations and terminated contracts, and “experience demonstrates that buyers will predictably turn to
319 Id. at 6-7. 320 Id. at 9-10. 321 Id. at 12.
79 other properties.”322 The Neighbors also pointed to Mr. Wantz’s testimony which endorsed the referenced realtor’s public comments.
230. Finally, in response to Perennial’s concept of due consideration, the Neighbors described the PUA § 7-207 factors as guides and standards which are intended to identify factors that would tend to make a site inappropriate for a SEGS.323 They claimed the
Applicant used a “checklist” approach and, if approved, the Project would have adverse impacts on tourism, an identified historic site, and esthetics, as well as conflicting with the
CP and the County Commissioners’ recommendation.
4. The County
231. The County highlighted that its recommendation is to be given due consideration in accordance with PUA § 7-207(e)(1). The County indicated its position was consistent with the concerns expressed during the public hearings which focused on economics and esthetics.324 In the event the Project was approved, the County reiterated the conditions submitted by Ms. Baker were appropriate and were not refuted.
5. Staff
232. Staff responded to the seven proposed conditions or concerns raised by the County in Ms. Baker’s testimony. First, Staff noted the Project was not located within a Priority
Preservation Area or Rural Legacy Area and only 28% of the Site’s soil were considered to
322 Id. at 14. 323 Id. at 19. 324 County’s Reply Comments at 2.
80 be “prime soils.”325 Staff concluded that the County’s general disfavor of using prime agricultural soil to construct solar facilities did not appear to be a disqualifying factor.
233. Staff detailed how the Project would interconnect to the distribution grid and found the interconnection design was consistent with the County’s recommendation.
Additionally, Staff argued that adherence to PPRP’s license conditions for the construction and operation of the Project will ensure environmental sensitive areas are not impacted.326
234. In relation to the Project’s impact on historic and cultural resources and the
County’s desire to protect those resources, Staff noted PPRP License Conditions
Nos. 31-32 require notifying MHT if archeological sites or artifacts are discovered and to consult with the HCWHA, which already indicated it would not seek additional mitigation beyond what PPRP had proposed.327 Staff believed those conditions should address the
County’s concerns.
235. The County’s requirement that a bond be posted to address a decommissioning plan was addressed in PPRP’s License Condition No. 35.328 Staff noted that the County will be permitted to offer comments on Perennial’s decommissioning plan when it is submitted for the Commission’s consideration.
236. Next, PPRP License Condition No. 12 addressed the County’s request for compliance with the FCA and the submission of a Forest Conservation Plan. Specifically, the referenced condition requires the planting of 14.33 acres for the Project and a Forest
Conservation Plan be submitted to both PPRP and the County for approval.329
325 Staff’s Reply Brief at 3-4, citing PPRP Ex. 7 at 3. 326 Staff’s Reply Brief at 5-6. 327 Id. at 6-7. 328 Id. at 7. 329 Id. at 8.
81 237. Staff claimed the County’s recommendations for well-maintained fencing around the Project and buffers and landscaping were satisfied by both the Project’s design and
PPRP’s conditions. Staff noted PPRP’s conclusion that the landscape buffer meets the
County’s design requirements and will mitigate views of the Project from adjoining roads and properties, as well as conditions that require the buffer to be maintained and that any replacement planting be covered by financial assurance.330
238. Finally, Staff disagreed with arguments that more emphasis should be given to the
County’s recommendation or that the Commission defer to the County’s zoning ordinance and CP. Staff cited Perennial which made “it clear that the final determination on whether to approve an application for a CPCN is still made by the Commission, despite any arguments regarding the need for the Commission to give ‘due consideration’ or ‘to defer’ to the text of comprehensive plans or local zoning ordinances.”331
IV. Applicable Law
239. PUA § 7-207(e) mandates the Commission to take final action on a CPCN application only after due consideration of the following:
(1) the recommendation of the governing body of each county or municipal corporation in which any portion of the construction of the generating station, overhead transmission line, or qualified generator lead line is proposed to be located;
(2) the effect of the generating station, overhead transmission line, or qualified generator lead line on:
(i) the stability and reliability of the electric system;
330 Id. at 9-10, citing PPRP Ex. 7 at 4-5, PPRP Ex. 9 at 7-8, and PPRP Ex. 11 - License Condition Nos. 20, 22, ad 23. 331 Staff’s Reply Brief at 11, citing 464 Md. at 632-33.
82 (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 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 a county or municipal corporation where any portion of the generating station is proposed to be located.
240. In order to obtain a CPCN, the burden is on the applicant to demonstrate that the
Project meets the public convenience and necessity.332
V. Analysis
A. PUA § 7-207 Factors
1. PUA § 7-207(e)(1) – Recommendation of the County
241. The recommendations of the County Commissioners are entitled to due consideration, but the Commission is not required to defer to those recommendations and it
332 In Re Potomac Edison Co. dba Allegheny Power, 97 Md. P.S.C. 239, 243 (2006).
83 is one of many factors that must be considered in CPCN cases.333 I find the County expressly opposed the Project and local jurisdictions’ positions have previously been afforded significant weight in similar proceedings. However, I also agree with Perennial that Ms. Baker’s testimony contradicts the County’s recommendation to some degree based on her statements that she had no outstanding concerns based on PPRP’s filings, that it was difficult to determine the Project’s consistency with the CP, and that the Project conforms to the zoning requirements.334
242. I also disagree with the Neighbors that the County recommendation was based on a
“location-specific analysis” and that the recommendation “should be accorded significant deference.”335 There is no evidence the County conducted any such analysis and the
County’s recommendation is entitled to due consideration, not deference.
243. Therefore, I find it appropriate to reduce the weight of the County’s opposition based on Ms. Baker’s testimony.
2. PUA § 7-207(e)(2)(i) – Stability and Reliability of the Electric System
244. It is undisputed that the Project would not adversely impact the stability and reliability of the electric system. Staff specifically indicated that the System Impact Study confirmed the Project’s ability to interconnect with the grid and the completion of any specified upgrades will ensure no adverse impacts to the distribution system.336 Therefore,
333 In the Matter of the Application of Biggs Ford Solar Center, LLC for a Certificate of Public Convenience and Necessity to Construct a 15.0 MW Solar Photovoltaic Generating Facility in Frederick County, Maryland, Case No. 9439 – Phase II, Order No. 89668 at 11, para. 40 (dated November 24, 2020), appealed to Circuit Court of Baltimore City (“Biggs Ford II”). 334 Tr. at 152-154 and 162-164. 335 Neighbors Initial Brief at 4. 336 Staff Ex. 1 at 8; see also and Applicant Ex. 1 at 29-30.
84 I find that the Project can be built and operated without negatively impacting the stability and reliability of the system.
3. PUA § 7-207(e)(2)(ii) – Economics
245. The record demonstrates the Project will have positive economic impacts (tax revenues, job creation, use of local contractors, etc.) that will stem from the Project’s construction and operation.337 The Neighbors claimed the Project could have a negative impact on tourism in the County, but there is nothing in the record to support that position.
246. There were also concerns expressed by the County Commissioners and the
Neighbors about potential negative impacts on property values. However, those arguments also lack support. In previous CPCN cases, parties have provided appraisals in support of their respective positions of a project’s potential impact on property values.338 No similar documentation was submitted in this case. Instead, the Neighbors highlighted a realtor’s comments during the First Public Comment Hearing that property values could drop by as much as 25%; however, there was no basis provided as to how those percentages were derived or supporting documentation, and the individual was not under oath or cross- examined. Similarly, while the Neighbors’ counsel indicated he was a real estate agent, his testimony and the arguments raised in briefs were similarly unsupported and largely speculative.
337 Applicant Ex. 1 at 10 and 29, and PPRP Ex. 7 at 26-27. 338 See for example Case No. 9439, Proposed Order at 76-78 (dated December 5, 2017), remanded Order No. 88644 (dated April 16, 2018) (“Biggs Ford I”). In that case, the PULJ found both Biggs Ford’s and a neighbor’s appraisals to be deficient and speculative.
85 247. On the other hand, the Commission has repeatedly determined that solar projects that are properly screened will not significantly impact property values.339 In this case,
PPRP noted the Project’s minimal vertical profile, the buffering around the Site, which has been doubled in width and height where the Project abuts residential dwellings, the lack of noise, traffic, odors, and pollution to conclude the Project would have a moderately benign local presence once the facility is operational and that property values will be unchanged.340
248. Based on Perennial’s amendments to the Project’s layout, its agreement to PPRP’s license conditions, and PPRP’s testimony, I find that there is no evidence to support the contention that property values will be significantly negatively impacted by the Project as there should not be impacts from noise, once the landscape buffer matures the Project’s visual footprint will be significantly smaller and confined to more distant areas, and no odors or pollution will be emitted once the Project is operational. Furthermore, I find the construction and operation of the Project would have an overall positive economic impact to the County and the State.
4. PUA § 7-207(e)(2)(iii) – Esthetics
249. This was one of the main issues in this proceeding as noted by both the County
Commissioners and the Neighbors, and it was a recurring topic in both Public Comment
Hearings and in the written comments. It is uncontested that the view of the Site will change from the current agricultural fields due to both the Project and the proposed
339 See for example In the Matter of the Application of Spectrum Solar, LLC for a Certificate of Public Convenience and Necessity to Construct a 5.6 MW Solar Photovoltaic Generating Facility in Prince George’s County, Maryland, Case No. 9608, Order No. 89520 (dated January 31, 2020), slip op. at 19, and CUB Solar Proposed Order at 43-44 (dated February 13, 2020), aff’d by Order No. 89548 (dated April 27, 2020). 340 PPRP Ex. 4 at 48-49; see PPRP Ex. 11 - License Condition No. 20.
86 landscaping. A change in the viewshed does not, in and of itself, necessarily weigh negatively against esthetic considerations and the entire record must be considered.
250. In accordance with PPRP’s license condition and the Applicant’s revised layout, the record indicates that the entire Project will be enclosed with a landscape buffer that will grow to 20 feet and have a minimum width of 25 feet, except where the Project abuts a lot zoned for or contains a dwelling, hospital, nursing home, school or other institution for human care, or a public or private road, where the landscape buffer shall have minimum width of 50 feet.341 Based on that condition, Dr. Hall testified that, provided the buffer grows to maturity, it would provide as much visual relief as he thought was necessary, and the resulting visual footprint of the Project would be significantly smaller and confined to more distant areas.342 Additionally, the Project’s revised layout places the buffer at least
200 feet from the closest residences.343 PPRP also included license conditions related to complaint resolution, landscape buffer maintenance, and surety agreements.
251. I find the largest factor on this issue to be the doubling of the landscape buffer in both height and width and that the additional buffer does not reduce the setbacks from any properties. PPRP’s PAR demonstrated the impact of the required buffer. PPRP’s visibility analysis of the Project with the buffer at 20-feet high established that it will effectively screen a majority of the Project from surrounding locations once the landscaping is mature.344 I find that the proposed screening, if properly maintained, will screen a majority of the Project from view after several years of growth and I agree with PPRP’s analysis that
341 PPRP Ex. 11 - License Condition No. 20. 342 Tr. at 111 and PPRP Ex. 4 at 32. 343 Applicant Ex. 8 - TAA-5-Exh. 1. 344 PPRP Ex. 4 at 31-35.
87 found the Project’s “visual footprint will be significantly smaller and confined to more distant areas.”345
252. The cases referenced during the Public Comment Hearings do not support the opposition. In Kieffer Funk, a CPCN for an 11.80 MW solar project situated on rolling agricultural fields that was approved, the PULJ found, “that PPRP conducted an extensive analysis of the visual impacts of this Project and that the set-backs and vegetative buffers as proposed will temper the view of the Project from most areas,” and that the conditions proposed by PPRP, in addition to those by proposed by Staff and the BZA’s approval of a special exception, were “a sufficiently tempered approach that will allay many of the concerns of the residents and County Commissioners.”346 The PULJ relied on PPRP’s analysis which found, “the topmost parts of Project components ... are expected to be visible east of the Project, primarily from unobstructed elevated perspectives that lend only far views that are likely to elicit less of an impact.”347
253. In Mills Branch, a proposed 50 MW solar project was denied for several reasons. In relation to esthetics, the PULJ found there would be substantial damage to the viewshed and that the proposed screening would not adequately mitigate the damage based upon a witness with expertise in the field of regional planning and environmental design.348
254. Selected passages from previous Orders cannot be relied upon to support the esthetic concerns in this case. Kieffer Funk appears to actually support Perennial based on the PULJ’s findings on the proposed landscape buffer. Whereas Mills Branch was a much larger project, on a site that was not properly zoned, would result in an economic loss from
345 Id. at 32; see also PPRP Ex. 11 – License Condition Nos. 20-23. 346 Kieffer Funk, Order No. 89347 at 8 (citation omitted). 347 Id. at 13, quoting PPRP PAR at 34. 348 Mills Branch, Order No. 88021 at 44.
88 a net reduction in permanent jobs, tax revenues were speculative, there would be a loss of prime farmland, and a potential impact on the tourism industry, in addition to esthetic concerns, all outweighed the project’s economic benefits.349
255. In comparison to this proceeding, the Project is smaller than both Kieffer Funk and
Mills Branch, the Site is properly zoned, the evidence indicates the economic benefits will be positive, only a portion of the site (28.2%) is prime farmland, and there was nothing more than speculation on the impacts on tourism. Additionally, Mills Branch included expert testimony on regional planning and environmental design, and similar testimony was not provided in this proceeding.
5. PUA § 7-207(e)(2)(iv) – Historic Sites
256. The record indicates that a Civil War battle occurred near the Site which, as of
2017, lies within the HCWHA. In order to address this issue, PPRP included a condition that required Perennial to consult with the HCWHA to address any concerns through additional mitigation strategies.350 The HCWHA, the organization in the best position to make such recommendations, as it did in CUB Solar, determined no further mitigation was necessary.
257. The Neighbors argued several points on this issue. First, the Neighbors criticized the Applicant’s site selection; however, I place no fault on the Applicant given that this proceeding began in 2015 when the Site was not within the HCWHA and no party was even aware of the HCWHA’s expansion until it was raised during the First Public Comment
Hearing.
349 Id. at 37-39. 350 PPRP Ex. 11 - License Condition No. 32.
89 258. Next, the Commission can only consider the facts in the record when making decisions. The Neighbors’ Reply Brief detailed the events leading up to the battle and battle itself, all of which it acknowledged were not in the record, and placed blame on other parties failing to include those details. However, the Neighbors overlook the information about the battle contained in Dr. Hall’s Supplemental Testimony and Ms. Shatto’s
October 13, 2020 letter.351 While the level of specificity may not be to the Neighbors’ liking, it is inaccurate to say none of the facts about the battle are in the record. The
Neighbors had an opportunity to place whatever facts they deemed necessary about the battle into the record but elected not to do so.
259. There are several factors that weigh against the Neighbors’ position. Ms. Baker indicated that the County was a member of the HCWHA Committee and participated in the teleconference with Ms. Shatto and the County offered no additional comments.352
Similarly, Ms. Shatto, the HCWHA’s Executive Director, did not offer any additional mitigation beyond PPRP’s proposed license conditions despite the opportunity to do so.
The HCWHA has previously been involved in CPCN cases and proposed mitigating license conditions. In CUB Solar, PPRP’s review determined the project would adversely impact the HCWHA. After consultations with HCWHA, PPRP recommended license conditions to extend a landscape buffer around a specific parcel to mitigate views, enhance the entrance to the Town of Union Bridge’s Historic District, and avoid certain areas, as well as requiring further coordination between the applicant and the HCWHA.353
351 PPRP Ex. 12 at 2 and PPRP Ex. 13 - Appx. A. 352 Tr. at 163. 353 CUB Solar Proposed Order at 25-26, para. 79 and Appx. A - License Condition No. 30.
90 260. The Neighbors’ also use Ms. Shatto’s correspondence as both a shield and sword.
They claim her “respect” for the County’s position equates to an endorsement. It does not.
Ms. Shatto could have easily expressed the HCWHA’s support for the County’s position or its opposition to the Project but elected not to do so. The Neighbors then discounted
Ms. Shatto’s opinion because she was not on the HCWHA’s Board of Directors or a historian. However, Ms. Shatto is the HCWHA’s Executive Director and Mr. Hall testified that Ms. Shatto conferred with the HCWHA’s Advisory Council in advance of the
October 29, 2020 teleconference.354 The HCWHA has previously suggested mitigation in other CPCN proceedings355 and Ms. Shatto, on behalf of the HCWHA, was in a position to propose further mitigation or conditions but confirmed the HCWHA would not propose mitigation beyond what had been proposed by PPRP.356
261. I also find no merit in the Neighbors’ position that the condition requiring further consultation between the Applicant and HCWHA to be inappropriate. It is common for
PPRP to propose license conditions that require applicants to work with various agencies to address issues that may arise in the future, such as archeological discoveries. In this case, one of the reasons for a second evidentiary hearing was the PULJ’s concern about the proposed condition simply requiring the Applicant consult with the HCWHA rather than having specific conditions.357 Since that was accomplished and the HCWHA clearly indicated it did not intend to propose any further mitigation, this particular argument is moot. Given the lack of any definitive evidence that the HCWHA would be impacted by
354 PPRP Ex. 13 at 2. 355 Tr. at 119. 356 PPRP Ex. 13 at 3; see Appx. C. 357 See Tr. at 85-87 and 121-122.
91 the Project, based upon the conditions recommended by PPRP, I find there will be no negative impacts on nearby historical sites.
6. PUA § 7-207(e)(2)(v) – Aviation Safety
262. PPRP determined the Project would not impact aviation from the nearby
Hagerstown Regional Airport, but the airport’s air traffic control tower could be impacted by glare from the Project depending on the type of coating that is ultimately selected for the solar panels. However, in light of PPRP’s recommended license condition that requires the
Applicant to submit a new glare analysis to the Commission and PPRP that is compliant with both FAA and MAA standards and notification requirements, PPRP will be able to verify that there will be no glare on either the Hagerstown Regional Airport’s flight paths or the air traffic control tower.358 Therefore, I find the Applicant’s adherence to PPRP’s
Recommended License Condition will ensure the Project will not result in glare on either the airport or the control tower. In the event the PPRP determines the Applicant’s glare analysis is not compliant with both FAA and MAA standards and regulations, PPRP shall inform the Commission accordingly that this license condition has not been satisfied.
7. PUA § 7-207(e)(2)(vi) – Air and Water Pollution
263. There is no evidence that the Project would create either air or water pollution. The record indicates that the Project, if constructed, would create emissions-free renewable energy. The lack of pollution created by solar generating facilities has previously been
358 PPRP Ex. 11 – License Condition No. 26; see also PPRP Ex. 4 at 45.
92 found by PPRP and Staff to be benefits of similar projects.359 Therefore, I find the Project will not create either air or water pollution.
8. PUA § 7-207(e)(2)(vii) – Disposal of Waste
264. There is no evidence that indicates either the construction or operation of the Project would create hazardous wastes. The Applicant expressly indicated that any waste would be disposed of in an appropriate manner. Therefore, I find that any wastes will be appropriately disposed of based upon the Applicant’s ERD and PPRP’s PAR and License
Conditions.360
9. PUA § 7-207(e)(3)(i) – Consistency with the County’s Comprehensive Plan and Zoning
a. The Comprehensive Plan
265. First, I disagree with the Neighbors’ claim that the CP and zoning are entitled to deference from the Commission. The Court of Appeals specifically determined that the
Commission is “the final approving authority for the siting and construction of generating stations.”361 In addition to intervening and participating in CPCN cases, local jurisdictions are permitted to provide a recommendation on a project, and the Commission is required to give due consideration, not deference, to the applicable CP and zoning pursuant to PUA
§ 7-207(e)(3)(i).
359 For example, see Kieffer Funk, Order No. 89347 at 16 and In the Matter of the Application of Richfield Solar Energy, LLC for a Certificate of Public Convenience and Necessity to Construct a 50 MW Solar Photovoltaic Generating Facility in Dorchester County, Maryland, Case No. 9457, Order No. 89069 at 63-64 (dated February 15, 2019). 360 Applicant Ex. 1 at 41 and PPRP Ex. 4 at 12 and PPRP Ex. 11 – License Condition No. 35. 361 464 Md. at 625.
93 266. Similarly, the Neighbors’ reliance on LGA § 5-212(a) is misplaced. While it does establish a policy of development and land use through planning and zoning controls, the statute applies to municipalities, not Counties. The Neighbors also ignore that the General
Assembly has made the Commission the siting authority for generating stations in PUA
§ 7-207 and the Maryland Court of Appeals affirmed the Commission’s authority to preempt the applicable zoning ordinance after giving due consideration to the enumerated factors in PUA § 7-207(e) In this case, due consideration has been given to all of the statutory factors and there is no need for preemption as the Project has been deemed to be consistent with the County’s zoning ordinance.
267. Next, the issue of CP consistency is complicated by the fact that the current CP, adopted in 2002, does not contain any references to SEGS and the County’s Director of
Planning and Zoning repeatedly stated it was difficult to determine whether the Project was or was not consistent.362 In response to questions related to the Project’s impact on maintaining the edge of the Cearfoss rural village which was addressed in the CP,
Ms. Baker found the Applicant had attempted to the best of its ability to mitigate issues through the proposed buffering and stressed that the buffering was a big thing.363
268. The Neighbors’ arguments related to the fabric of the rural village are not persuasive. While the CP contemplated protecting rural villages from incompatible uses and new development through the development of specific design standards, Mr. Wantz acknowledged no specific standards exist.364 Furthermore, I agree with the Applicant that there is no indication the County intended to prohibit SEGS from being located on parcels
362 Tr. at 152-156. 363 Tr. at 154-156; see https://www.washco-md.net/wp-content/uploads/legal-CompPlan.pdf – County’s 2002 Comprehensive Plan, Community Design Standards (Rural Area), p. 295, para. 12. 364 Tr. at 190-191.
94 abutting a rural village. Such specific prohibitions are limited to citing within defined
Priority Preservation Areas, Rural Legacy Areas, and Antietam Overlay Zones.365
Ms. Baker added that when considering the CP, “we also look in terms of quantifiable evidence, meaning we look at the impacts upon infrastructure,” and that the Project did not impact County-maintained infrastructure.366
269. Based on Ms. Baker’s testimony and the lack of any reference to SEGS in the CP, I find that the Project is neither consistent nor inconsistent with the County’s CP.
b. Zoning
270. This was also a highly contested issue with the Applicant’s pointing out that SEGS are permitted with a special exception in the A(R) district, and the Neighbor’s claiming the
Project was inconsistent with the CP and was not compatible with the existing neighborhood. While there were references to the vacated 2015 BZA decision, that decision will not be considered.
271. The zoning ordinance specifically permits SEGS in the A(R) district as a special exception and the Project is not located within a prohibited overlay area. Most telling was
Ms. Baker’s response to a question from the bench regarding the Project’s consistency with the zoning ordinance, to which she replied:
To my knowledge, yes, I believe they would, they would conform to the zoning ordinance based upon what small regulatory requirements we did include. As far as any additional comments or issues, comments brought up in front of the Board of Zoning Appeals, obviously I can’t comment on in terms of location or enhanced setbacks or anything like that. But in
365 See County Ex. 2 – excerpt from the County’s zoning ordinance – Section 4.26 Solar Energy Generating Systems. 366 Tr. at 153-154.
95 terms of the simplistic regulations that we have in the ordinance, I would say yes, that it conforms.367
Ms. Baker serves as the Director of the County’s Department of Planning and is responsible for recommending and formulation of and revisions to both the CP and zoning ordinance and advises both the Planning Commission and the County Commissioners on planning and land use.368 Based on Ms. Baker’s qualifications and testimony, the County’s zoning ordinance, and the facts and circumstances of this case, I find the Project to be consistent with the County’s zoning.
10. PUA § 7-207(e)(3(ii) – Efforts to Resolve Issues Presented by the County
272. Despite the Neighbors’ contention, it is not a requirement that a CPCN applicant attempt to resolve issues raised by the respective jurisdiction. Rather, this is one of many factors that must be given due consideration in evaluation of a CPCN application. While the Applicant did not expressly engage the County in an effort to resolve the County’s issues, based on the opposition from the County Commissioners, it is unlikely any effort, short of not pursuing the Project, would resolve their concerns.
273. However, I find Perennial took steps to address the concerns raised by Ms. Baker and the County, some of which were already addressed in the initial application, the amended plan, or were addressed by PPRP’s license conditions.369 Specifically, the Project will not impact environmentally sensitive areas; the interconnection will be underground; the Site is not within a designated overlay that prohibits SEGS; historic and cultural
367 Tr. at 163-164. 368 County Ex. 1 at 1. 369 See County Ex. 1 at 2-4 and County’s Initial Comments at 2-3.
96 resources will be protected via the proposed buffer; a decommissioning plan that includes financial assurances was a license condition proposed by PPRP; the Applicant agreed to comply with the FCA, and the Project will be enclosed with a perimeter fence.
Additionally, the County Commissioners’ concerns about property values and esthetics were addressed, although not to the County’s satisfaction as evident by the continued opposition expressed in post-hearing comments.
B. Other Considerations
1. RPS Contribution
274. Perennial and the Commission have confirmed the importance of the RPS as a factor for consideration in CPCN proceedings. The Commission stated, “Although the RPS is not listed as one of the factors in PUA § 7-207(e), these listed factors are not exclusive.”370 The Commission also noted the Court of Appeals’ recognition of the link between the RPS’s goals and the CPCN process due to the Commission’s duty to ensure compliance with the RPS which includes specific targets for electricity from solar electric generation.371 Accordingly, I find the Project will contribute to the State’s RPS goals and is an overall positive factor especially given the State’s renewable energy goals.
2. Proposed Amended License Condition 19 – Land Use
275. Perennial made clear the Commission’s authority to preempt local zoning for siting and locating generating stations, but it did not address subsequent compliance issues, such as forest conservation and floodplain management, which are typically addressed by a
370 Biggs Ford II, Order No. 89668 at 12, para. 43. 371 Id. at 12, para. 45.
97 jurisdiction’s planning commission. Once the Commission has authorized the siting of a
CPCN, the respective jurisdiction still retains authority to address all other issues related to approvals, compliance, and permits required by local ordinances which were not preempted by Perennial.
276. Both the Applicant and PPRP proposed amending License Condition No. 19 in an effort to address the Neighbors’ regulatory gap argument which stems from the claim the
Project was inconsistent with the County’s zoning and the County, therefore, lacks authority to conduct a final site plan review.372 Proposals to limit a jurisdiction’s oversight, even in cases where the jurisdiction is not supportive of a project, are concerning and appear, at this point, to be solutions in search of a problem. Decisions related to site planning, forest conservation, floodplain management, sediment and erosion control, stormwater management, etc., are best left to those with both the requisite familiarity and expertise.
277. PPRP’s proposal to permit the Applicant to file a Certification of Substantial
Conformity for the Project has been designed in substantial conformance with the County’s site plan requirements and to allow the Commission, or its designee, to review and approve the site plan, if the County will not, is not acceptable. This condition would require contracting a third-party that has the familiarity with the County’s requirements and expertise to evaluate the Applicant’s submission as the Commission lacks the subject- matter expertise to determine whether a particular project’s site plan substantially conforms to a jurisdiction’s ordinances. Perennial’s amendment to simply submit the site plan to the
372 PPRP’s Reply Brief references this condition as Condition No. 18, but in the Revised License Conditions, Condition No. 9 was added and all subsequent conditions were renumbered, thereby making the Land Use Condition No. 19.
98 County for review and comment, rather than approval, is similarly deficient. This proposal makes the County’s participation entirely optional and suffers from the same deficiency as
PPRP’s proposal.
278. Moreover, in light of the finding that the Project is consistent with the County’s zoning ordinance and the exercise of the Commission’s preemption authority is not a consideration, the issue of whether Perennial created a regulatory gap is not ripe.373
Accordingly, I find no amendment to Condition No. 19 to be necessary.
3. Electro-magnetic Field
279. PPRP specified the EMF levels were projected to fall well below the threshold human health standards at a distance of three feet, given the buffer from the perimeter fence to adjacent property lines, there should not pose a potential health risk to nearby residents.374 Based on PPRP’s testimony, I find that no health risks will be posed by the
Project to nearby residential properties from EMF.
C. Public Comments
280. A majority of the issues raising during the public comment hearings and in written comments were addressed by the Applicant and PPRP as discussed above. The other issues raised lack support in the record that would further consideration. There were references to the Governor’s Executive Order and Task Force’s Report related to the development and siting of renewable energy. However, neither document is relevant to this proceeding as the
373 PPRP noted there was no reason to deviate from the traditional review and approval process if the traditional site plan review process was available. PPRP Reply Brief at 5, citing Biggs Ford I, Proposed Order at 89 (dated December 5, 2017), remanded by Order No. 88644 (dated April 6, 2018). 374 PPRP Ex. 1 at 11-12 and PPRP Ex. 4 at 55-58.
99 Task Force’s recommendations have not altered the statutory authority on how the
Commission reviews and rules upon CPCNs. An individual raised a concern about the stormwater runoff from the Site onto his property. There appears to be several factors contributing to the runoff, including the repaving of Greencastle Pike. However, both
Messrs. Anderson and Strebel testified that compliance with PPRP’s conditions reduce the water flow down to the drainage swale that is contributing to the runoff.375
VI. Conclusion
281. Based on my review of the entire record of this proceeding and for the reasons set forth herein, I find the Project to be in the public convenience and necessity as the benefits outweigh any potential adverse impacts, subject to the conditions provided by PPRP and
Staff, which are attached hereto as Appendices A and B and made a part hereof.
282. Accordingly, I hereby grant the Application and the Applicant’s request for a
Certificate of Public Convenience and Necessity.
IT IS, THEREFORE, this 21st day of April, in the year Two Thousand
Twenty-One,
ORDERED: (1) That the Application filed for a Certificate of Public Convenience and Necessity to construct an 8.0 MW solar photovoltaic generating facility in Washington
County, Maryland is hereby granted in accordance with the findings and decision rendered herein.
(2) That the conditions in Appendix A and Appendix B attached hereto and incorporated herein are hereby accepted as licensing conditions of the Certificate
375 Applicant Ex. 8 at 5 and Tr. at 133-134
100 of Public Convenience and Necessity in accordance with the findings of this Proposed
Order.
(3) That this Proposed Order will become a final order of the
Commission on May 22, 2021, unless before that date an appeal is noted with the
Commission by any party to this proceeding as provided in Section 3-113(d)(2) of the
Public Utilities Article, or the Commission modifies or reverses the Proposed Order or initiates further proceedings in this matter as provided in Section 3-114(c)(2) of the Public
Utilities Article.
/s/ Ryan C. McLean Ryan C. McLean Chief Public Utility Law Judge Public Service Commission of Maryland
101