The owners of a farm along Route 136 have spent about two years petitioning the Harford County government for approval to build a 49-megawatt, 115,000-panel solar field on their property — even appealing their case to the local Circuit Court.
Now they must start from scratch at the state level after the county’s Board of Appeals recently vacated its decision to uphold the county’s denial of the application to build the solar facility.
“The [Circuit Court] ruling said that final authority on this issue belongs with the Public Service Commission, which trumped local zoning authority,” county government spokesperson Cindy Mumby said Tuesday.
The state commission must take local zoning ordinances into consideration, however, and solar fields such as the one planned for the 254-acre Fielder family farm at 2000 Calvary Road are only allowed in general industrial districts under Harford’s current regulations, Mumby noted.
The property in question, which is between Schucks Road and Route 543 in the Creswell area, is zoned for agricultural use.
Applicants Fairview Farms LLC, which is comprised of members of Harford County’s Fielder family, and Pro-Tech Energy Solutions LLC, have been appealing the Oct. 25, 2017 written determination by the county’s planning and zoning director that their proposed solar field should be classified as a “power and regeneration plant,” a use not allowed in agricultural zones.
Representatives for Fairview Farms could not be reached for comment as of 11:45 a.m. Tuesday.
Zoning Hearing Examiner Robert F. Kahoe Jr. presided over two hearings in May of 2018, when the applicants presented their case in favor of a solar farm in an ag district, and county planning and zoning officials argued that it would not be a proper use for that property.
A number of citizens and representatives of organizations such as the Harford County Farm Bureau and the Harford County Agricultural Land Preservation Advisory Board, also testified against building a solar field on farmland, according to Kahoe’s report on his decision, issued Sept. 4, 2018.
Kahoe upheld planning officials’ determination, agreeing that the solar farm should be considered a power plant, the same as a coal or gas-fired plant, hydroelectric dam or wind farm.
“They all would be power and regeneration facilities and as such, according to the [planning and zoning] Director, are allowed only in the GI district,” Kahoe wrote. “Such a finding by the Director is not erroneous.”
Those giving testimony on behalf of the applicants argued that a solar collection facility is different from other types of power plants in that the panels collect sunlight in a passive manner, using those solar rays to generate power that is then sent to the utility grid. A BGE substation, which could be used to support the power grid connection, is across Calvary Road from the site, according to Kahoe’s report.
The applicants’ representatives argued that other types of power plants, which process raw materials such as coal, natural gas, water or nuclear fuel, should be considered “a heavy industrial operation” and that a passive solar farm is not “materially similar” to those facilities, according to the report.
Board of Appeals decision
The Harford County Council, sitting as the Board of Appeals reviewed the applicants’ case next.
Members voted unanimously, according to a notice issued Feb. 5, to adopt the zoning hearing examiner’s recommendation. The board noted the proposed solar field is “prohibited by the Development Regulations of Harford County, based upon the findings of fact and conclusions of law set forth in said recommendation.”
The board’s ruling was appealed to the Circuit Court.
Judge Kevin J. Mahoney, in his Sept. 3 order, granted Fairview Farms’ motion for “pre-appeal determination,” instead of proceeding with a judicial review of the board’s decision. He sent the decision back to the appeals board, ordering them to vacate it, according to documents posted on the Harford County government website.
The Morning Sun
“This case has been remanded to the Board of Appeals by the Circuit Court with the instruction that our decision in this matter be vacated,” Council President Patrick Vincenti said during the council’s legislative session Sept. 17.
He said the appeals board’s decision in Zoning Appeal Case 5885 is “hereby vacated” in compliance with the court order. The council did not take a vote on vacating the decision.
Complying with the court order to vacate means the board’s prior decision is “null and void,” and the board will have “no further role in this case at this particular time,” Vincenti said in a follow-up interview Monday.
County’s next steps
Kahoe, the zoning hearing examiner, mentioned in a footnote in his report that Harford County has “no definition of solar, solar power, solar field, solar array, etc.” in its development regulations, although solar panels are allowed as accessory uses in most zoning districts “with, it seems, little or no regulation.”
“Electric production from solar energy panels is not a new science, nor a new use, and a controversy of the nature raised in this case was certainly foreseeable, perhaps even overdue,” Kahoe wrote.
Mumby confirmed that solar panels are allowed in all Harford zoning districts as accessory uses, meaning the energy generated can only be used to power operations on the property such as a farm or commercial business, but it cannot be sold to a grid. Solar panels can be used as power-generating facilities in GI districts only, she said.
“In light of the [court] ruling, we’ll look at whether we need to clarify language in the code, but at this time keeping [solar field] restrictions to the GI zone,” Mumby said of county officials’ next steps.