Howard County v. Potomac Elec. Power Co.

• Decision Date: 01 September 1989
• Docket Number: Nos. 113,133,s. 113
• Citation: 573 A.2d 821,319 Md. 511
• Parties: HOWARD COUNTY, Maryland v. POTOMAC ELECTRIC POWER COMPANY et al. MONTGOMERY COUNTY, Maryland v. POTOMAC ELECTRIC POWER COMPANY et al. ,
• Court: Maryland Court of Appeals

Page 511

319 Md. 511

573 A.2d 821

HOWARD COUNTY, Maryland v. POTOMAC ELECTRIC POWER COMPANY et al.

MONTGOMERY COUNTY, Maryland v. POTOMAC ELECTRIC POWER COMPANY et al.

Nos. 113, 133, Sept. Term, 1989.

Court of Appeals of Maryland.

May 29, 1990.

Elizabeth B. Entwisle, Sr. Asst. County Sol. (Barbara M. Cook, County Sol., on brief), Ellicott City, for Howard County.

John J. Delaney (Susan M. Reutershan, Elizabeth M. Hosford, Linowes and Blocher, on brief), Silver Spring, Sandra Hall-Eckroade, Asst. Gen. Counsel to Public Service Com'n of Maryland (Bryan G. Moorhouse, Gen. Counsel, on brief), Baltimore, for Potomac Elec. Power Co.

Paul W. Davis, for amicus curiae Baltimore Gas and Elec. Co.

Roger W. Titus, Jane E. Allan, Venable, Baetjer & Howard, Rockville, Dale G. Stoodley, Wilmington, Del., for amicus curiae Delmarva Power & Light Co.

Catherine M. Campbell, Hagerstown, amicus curiae for Potomac Edison Co.

Karen L. Federman-Henry, Associate County Atty. (Clyde H. Sorrell, County Atty., A. Katherine Hart, Sr. Asst. County Atty., on brief), Rockville, for Montgomery County.

Argued before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS and CHASANOW, JJ.

MURPHY, Chief Judge.

The issue in these cases is whether Maryland Code (1988 Repl.Vol.), Article 78 (entitled "Public Service Commission Law"), which grants to the Maryland Public Service Commission general regulatory powers over public service companies, including the construction of overhead transmission lines in excess of 69,000 volts, preempts by implication county zoning ordinances regulating the location and construction of such transmission lines.

I.

Article 78, § 54A requires an electric company to obtain from the Maryland Public Service Commission (PSC) a certificate of public convenience and necessity before beginning the construction of any overhead electrical transmission line designed to carry an excess of 69,000 volts. ¹ Upon receipt of an application for the certificate, this section requires, inter alia, that the PSC "notify all interested persons ...[,] hold a public hearing" and "take final action only after due consideration of the recommendations" of local and state governing bodies which participated in the hearings. Section 54A further requires that the PSC consider

the need to meet present and future demands for service, effect on system stability and reliability, economics, esthetics, historic sites, aviation safety as determined by the State Aviation Administration and the administrator of the Federal Aviation Administration, and, when applicable, the effect on air and water pollution, and, the availability of means for the required timely disposal of wastes produced by any fossil fuel or nonfossil fuel generating station....

On July 26, 1976 the Potomac Electric Power Company (PEPCO) filed with the PSC an application for a certificate to construct a 500,000 volt overhead transmission line running 10.5 miles between PEPCO's Brighton Substation in Montgomery County to the vicinity of Baltimore Gas and Electric Company's High Ridge Substation in Howard County. Approximately 6.8 miles of the proposed line would be located in Howard County, while approximately 3.7 miles would run through Montgomery County. The Brighton-High Ridge 500,000 volt transmission line is one of the last links in a 243-mile 500,000 volt transmission loop encircling the Baltimore-Washington Metropolitan area.

Over a 10-month period from July, 1977 to May 1978, the PSC held a series of public hearings on the application in which Howard and Montgomery Counties participated as parties along with other participants, including the Maryland Department of Natural Resources, community associations, and landowners. Both counties submitted formal recommendations to the PSC. The entire transcript of testimony was in excess of 6,000 pages. On April 6, 1979, the PSC's Special Hearing Examiner issued a proposed order recommending the issuance of the certificate subject to certain conditions relating to the use of sensitive sites along the route, and concerning alignment and type of poles to be used within specified areas. On March 5, 1980 the PSC issued its order, adopting in full the proposed recommendations of the Special Hearing Examiner and granting PEPCO a certificate to construct the proposed transmission line.

Separate appeals from the PSC order were consolidated in the Circuit Court for Howard County (Fischer, J.), which ultimately affirmed the PSC's certificate order on October 14, 1985. Howard County appealed but withdrew the appeal on November 26, 1985. PEPCO subsequently filed petitions with the Board of Appeals for Montgomery County and the Board of Appeals for Howard County for special exceptions to county zoning regulations affecting the construction of the transmission line.

On March 2, 1987, PEPCO petitioned the Board of Appeals for Montgomery County for construction of the transmission line along the route established by the PSC and affirmed by the Circuit Court for Howard County. That route traversed an area of Montgomery County zoned as "Rural Cluster," a designation that permits the construction of overhead transmission lines in excess of 69,000 volts as a special exception use under the Montgomery County Code (1984) § 59-G-2.43(f). PEPCO filed its petition, pursuant to §§ 59-A-4.2 and 59-G-2.43(f) of the County Code, which purport to confer jurisdiction on the Board of Appeals to hear applications for special exceptions for overhead transmission lines in excess of 69,000 volts. Simultaneous with the filing of the petition, PEPCO filed a Motion for Preliminary Ruling, asserting that the Board of Appeals had no jurisdiction over the application because Article 78 had preempted the subject of regulating overhead transmission lines in excess of 69,000 volts. The motion was deferred pending a hearing on the merits of the petition. After holding public hearings on the petition in October, 1987, the Board of Appeals on January 22, 1988, without ruling on the preemption question, approved PEPCO's petition subject to these four conditions:

1. Petitioner shall be strictly bound by all oral and written testimony, evidence and exhibits in the record.

2. Petitioner shall submit a revised, detailed site plan with specifics as to the line of construction; number of poles to be constructed; size, height, color and specific locations; and the specific intervals along the line where such poles are to be placed, to the Maryland-National Capital Park and Planning Commission, with copies to this Board and to interested parties in this proceeding. Following consideration by M-NCPPC, petitioner shall file with the Board of Appeals two copies of the approved site plan.

3. Petitioner shall, prior to implementation of the special exceptions S-1413 and S-213-A, secure from the Public Service Commission a finding that construction of the line authorized, will not endanger the health and safety of persons residing in proximity to the power line. It shall be the responsibility of the petitioner to initiate whatever action is necessary to secure such finding by the PSC and to notify the Board of Appeals when such initiative has been undertaken, as well as a copy of the resulting written findings of the PSC.

4. The Board of Appeals shall, at periodic intervals of at least three (3) years, conduct review hearings to determine the appropriateness of the continued grant of the special exception. The first review hearing will be held three (3) years following written notification from the petitioner that the special exception has been implemented.

PEPCO appealed to the Circuit Court for Montgomery County. The PSC intervened as a party. The court (McKenna, J.) on November 1, 1988 concluded that the Board of Appeals had jurisdiction to consider the special exceptions, since such matters were not expressly or impliedly preempted by state law. However, the court did find that the Board of Appeals was "clearly erroneous" in imposing its second and third conditions because they conflicted with the PSC's certificate order. The first and fourth conditions were affirmed. Thereafter, PEPCO and the PSC appealed to the Court of Special Appeals, which on July 5, 1989 reversed the judgment. PEPCO v. Montgomery County, 80 Md.App. 107, 560 A.2d 50 (1989). It held that the comprehensiveness of § 54A and other language of Article 78 "evinces the Legislature's intent to confine the regulation of power lines solely to the PSC," despite the lack of express language in the statute to this effect. Id. at 115, 560 A.2d 50. Thus, because the State impliedly preempted this field of regulation, the intermediate appellate court said that the Montgomery County Board of Appeals "improperly and illegally imposed conditions upon the issuance of the building permit of PEPCO." Id. at 118, 560 A.2d 50. We granted certiorari to consider whether Article 78 preempts the Montgomery County zoning ordinances that regulate overhead transmission lines in excess of 69,000 volts.

Shortly after PEPCO petitioned the Board of Appeals for Montgomery County for a special exception, it had also filed on March 30, 1987 an application with the Howard County Board of Appeals for a special exception to the county's zoning ordinance to construct the power line along the 6.8-mile route in Howard County. The route traverses properties zoned as "Rural," "Residential: Single," and "Residential, Single Cluster." Section 126(F)(37) of the Howard County Zoning Regulations requires that applicants intending to build an overhead transmission line in excess of 69,000 volts in these zones and others must obtain a special exception. PEPCO also simultaneously filed a Motion for Preliminary Ruling, contending that the Howard County Board of Appeals had no jurisdiction over the application because state law had preempted the subject; the motion was denied. The Board of Appeals conducted several public hearings on the...