A plan by a prominent Harford County family to place a solar power plant on their Churchville area farm has run afoul of the county’s zoning code, which officials say doesn’t permit such activities on local farmland.
But an interpretation by the county’s planning director that “solar farms” aren’t permitted on land zoned for agriculture, either as a matter of right or by special exception, flies in the face of logic, common sense and the code, according to a lawyer who is appealing the ruling.
And, the zoning hearing examiner who reviewed that decision and upheld it, also found the county’s regulations are strikingly mute about use of solar energy panels that he wrote are “not a new science.”
Fairview Farms LLC requested an interpretation of the code regarding its proposal to contract with a third party, Pro-Tech Energy Solutions LLC, to put more than 100,000 solar panels on the 254-acre farm off Route 136 at Schucks Road, between Churchville and Creswell.
Fairview LLC consists of members of the James Fielder family, including James D. Fielder Jr., the Maryland commissioner for higher education, his older brother G. Edward Fielder, a former Harford County councilman, and their sister, Grace Fielder.
According to case documents, county Planning Director Bradley Killian concluded the proposed usage would be a “power and regeneration station” under the zoning code, which is a permitted use only in the GI/general industrial zone.
The Fielders appealed Killian’s ruling to the county zoning hearing examiner, who held two hearings in May and issued an opinion Sept. 4 that concluded the planning director was correct in his interpretation.
The Fielders, through their lawyer, Robert Lynch of Bel Air, have asked the Harford County Council, which is also the county’s final zoning authority, to review both rulings. A date for the council review has not been set.
Although both Killian’s interpretation and Kahoe’s ruling appeared to be cut and dried regarding the use of solar arrays to generate power, Lynch said that’s not so, and the hearing examiner himself called attention to the Harford zoning code’s lack of consideration regarding the widely used technology.
“This is not a ‘materially similar use’ to a power regeneration plant,” Lynch said in phone interview Sept. 21, referring to the wording in the opinion. He said he disagreed with Kahoe’s reasoning that because the solar panel array would be similar to a power regeneration plant, the planning director did not have to go any further in his interpretation of what the code or current development regulations would permit.
Lynch says he believes Killian should have gone beyond his straight line interpretation of the code.
The Fielder property has been actively farmed for several generations – in 2016 a tenant farmer planted a field of crimson clover there that produced a striking array of blooms; however, the family previously received county approval to develop up to 27 single family houses on the site. Lynch said the proposed solar facility would be done instead of a housing development.
Similar to BGE Perryman
The Fielder solar proposal, Lynch said, is the same as the county’s only existing large solar generating station owned by BGE/Constellation Energy on the southern end of the Perryman peninsula, which Lynch said was referred to repeatedly during the county approval process as a “public utility facility.”
Even though the BGE facility is in GI zone, where it is permitted, and the Fielder property is zoned A1/agricultural, Lynch said Kahoe should have instructed Killian to review the proposal as a “public utility facility,” which the code permits in any zone subject to special exception appeal review.
Lynch called the ruling in the Fielder case “flat wrong” and said he intends to “take it up [to the council] and work it through the system,” which could ultimately mean the courts if the council doesn’t reverse or significantly modify Kahoe’s opinion.
The hearings before Kahoe, he noted, brought forth testimony from both his expert witnesses and some residents who showed up voluntarily to support the project, whose estimated value is between $70 million and $80 million.
Lynch’s experts, who included Reid Garton, a power developer working with in partnership with Pro-Tech Energy Solutions, and Bert Wilson, who said he has testified before the Maryland Public Service Commission in power plant siting and approval cases, attempted to differentiate between a typical power plant, which Wilson said produces “power on demand,” and a “fairly heavy industrial operation.”
Wilson said the term “regeneration plant” in the Harford code is not used in the power development industry.
Garton said a solar plant doesn’t have fuel sources being transported to the site, nor does it produce exhaust emissions and other discharges, and operates only when the sun shines. He described the proposed Fielder operation as an “upper middle to larger system” that would have 115,000 solar panels, would be fenced and screened, have no employees on site once construction is complete and no high voltage transmission lines.
The power produced, enough to serve 52,000 homes, according to other testimony, would go to a BGE substation across Route 136, construction of which is already planned.
Moe Davenport, a county planning official, testified that while his department reviewed the proposal as a public utility, the use fit the definition of “a power generation plant,” permitted only in G1 zones, as different from water and sewer pumping stations or electric and telephone switching stations that are permitted in all zones.
Other testimony against the project included a representative of the Harford County Farm Bureau, who said the organization opposes power generation facilities on farmland.
Lynch, however, said the Farm Bureau’s reasoning makes little sense, as many farms in Harford County and elsewhere are using solar energy to power some of their equipment and homes, “and I’m sure some of that power is going to the grid.”
He said he cited some 50 examples of solar being used in agricultural zones, both for farming operations and houses – as well as one building at Harford Community College, “though not over 200 acres,” as proposed for the Fielder farm.
In reviewing the testimony, Kahoe, the hearing examiner, wrote that finding on behalf of the Fielders would have “an undeniable consequence” of permitting solar generation facilities in every county zoning district, save one, a highly restrictive MO/mixed office district.
“Overlaying the somewhat tortuous argument of the Applicant are the lack of definitions in the Harford County Development Regulations of solar, solar power, solar facility, solar field, solar plant, regeneration plant, power and regeneration plant or even power plant,” Kahoe wrote.
“Despite strident arguments of the Applicant, however, the resolution of the issue is clear and the process to get there is straightforward,” he continued. “The decision of the Director will be found correct. The solar energy facility as proposed by the Applicant is a power and regeneration plant and… not allowed on the Applicant’s property.”
Kahoe wrote that the planning director was not required by law to find the Fielder proposal “materially similar” to a public utility facility, and he gave the analogy of a nuclear power plant, which he stated “is significantly different from other electric power generating facilities… however, no one would argue a nuclear is not a power plant.”
He also wrote that Davenport’s testimony, that some public utility facilities are also power and regeneration facilities, such as the proposed solar plant, was “persuasive.”
Despite siding the with the planning director, in a footnote to his opinion, Kahoe called attention to the county’s lack of foresight with regard to solar and other forms of renewable energy.
“It is striking that the Harford County Development Regulations have no definition of solar, solar power, solar field, solar array, etc.,” he wrote.
“As testimony in this case showed, solar panels are allowed by the Director as accessory uses in most districts, with, it seems, little or no regulation. If the Department of Planning and Zoning has applicable standards, they were not disclosed at the hearing of this case,” Kahoe continued.
“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.”