Howard County v. Potomac Electric Power Co.

⁵¹³ 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 run ⁵¹⁴ ning 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 ⁵¹⁵ 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 ⁵¹⁶ 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. ⁵¹⁷ 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 application over a six-month period from October, 1987 to April, 1988; and on July 5, 1988 it issued its decision and order denying the special exception. It held that PEPCO failed to meet its burden of proof that construction and operation of the proposed transmission line would not have “a detrimental effect on the privacy and quiet of the neighborhood” and would not “adversely affect vicinal properties or the general welfare or logical development of the neighborhood.” The Board of Appeals also rejected the claim by PEPCO that the Board’s jurisdiction over the line is preempted by Article 78 and by issuance of the certificate by the PSC to PEPCO on March 5, 1980 authorizing construction of the line. PEPCO appealed to the Circuit Court for Howard County and the PSC intervened. Arguments were heard on February 28, 1989, and while a decision was pending, the Court of Special Appeals decided PEPCO v. Montgomery County, supra.

The Circuit Court for Howard County (Nissel, J.) held on July 17, 1989 that that case was “squarely on point” and it adopted the reasoning of that decision on the preemption question, thus reversing the decision of the Howard County Board of Appeals. Howard County appealed to the Court of Special ⁵¹⁸ Appeals, and subsequently petitioned this Court for a writ of certiorari prior to argument in the intermediate appellate court. We granted the certiorari petitions from Howard and Montgomery Counties to decide the important public issue presented.

II

Article 78 defines the nature and extent of the PSC’s regulatory powers and responsibilities. In § 1, the statute specifies that the PSC’s jurisdiction and powers “shall extend to all public service companies ... engaged in or operating a utility business in this State ... to the full extent permitted by the Constitution and laws of the United States.” Section 1 further provides that the powers of the PSC “shall be liberally construed; and the Commission shall have the powers specifically conferred by this article and by any other law, and also all implied and incidental powers necessary and proper to carry out effectually the provisions of this article.” Section 56 states that the PSC shall supervise and regulate all public service companies subject to its jurisdiction to assure their operation in the interest of the public and to promote adequate, economical, and efficient delivery of utility services in the State without unjust discrimination, giving consideration to the public safety, the economy of the State, the conservation of natural resources, and the preservation of environmental quality. To these ends, the Commission shall enforce compliance by such companies with all the requirements of law, including, but not limited to requirements with respect to financial condition, capitalization, franchises, plant, manner of operation, rates, and service. The powers and duties enumerated specifically in this subtitle are not intended to limit the scope of the general powers and duties of the Commission provided for by this article.

Section § 59A directs that the PSC require all public electric utilities in the state to include in their long-range plans adequate provisions to promote energy conservation in order to decrease or ⁵¹⁹ moderate electric and, as appropriate, natural gas demand from their customers. The Commission shall review plans for adequacy under the general standards of § 56, giving attention to the interrelationship of services of other public service companies and to provisions for research and development to assure adequate service. Unless the authority to review and approve such plans has been granted to another agency of the State by another provision of law, the Commission shall require any revisions to those plans it deems appropriate. Under § 78(a) and (b), the PSC may by regulation: (a) ... prescribe standards of safe, adequate, reasonable, and proper service for any class of public service company, which in the Commission's opinion will best promote the security or convenience of the public, of those employed in furnishing service, and of those to whom service is rendered; and to these ends, the Commission may enforce the standards set by it, and may by order require changes and additions in the service of any public service company as the Commission deems necessary, including but not limited to repairs or improvements in plant, increase in motive power, and change in schedule or manner of operations.

(b) The Commission shall examine alternatives to transmission line construction in any service area, including the use of existing lines of any company whether or not franchised in that service area, if (1) the existing lines are convenient to that service area, or (2) the use of the lines will best promote the economy and efficiency of service to the public. As noted earlier, § 54Á specifically addresses the construction of generating stations and overhead transmission lines designed to carry an excess of 69,000 volts. It does not expressly preempt local laws which purport to regulate transmission lines covered by this section. The counties argue that in the absence of express preemption language, Article 78 does not preempt their zoning ordinances regulating transmission lines.

These ordinances ⁵²⁰ purport to vest in the counties extensive authority over the construction of such lines for the protection of local concerns. Montgomery County Code § 59-G-2.43(f) requires that the County Board of Appeals grant a permit to construct the line only upon the finding that: (1) The proposed use does not have an unduly adverse effect on the general plan for the physical development of the district as embodied in this chapter and in any master plan or portion thereof adopted by the commission; (2) The proposed use will not affect adversely the health and safety of residents or workers in the area; (3) There is a public necessity for the proposed building, structure or facility at the location selected; and (4) The proposed use will have the least possible detrimental effect to the use or development of adjacent properties or the general neighborhood. In making those findings, the Board is required by this section to consider: a. Points at which the proposed line crosses heavily traveled highways or streets or other arteries of transportation, either existing or proposed; b.

Proximity of the line to schools, churches, theaters, clubs, museums, fair grounds or other places of assembly, either existing or proposed; c. The amount and probability of low-level flying over the line and nearness of the line to airports and/or heliports, either existing or proposed; d. Any fire hazard or interference with fire fighting equipment due to the location and construction of the proposed line; e. Proximity of the line to public parks and recreational areas, either existing or proposed; f.

Effect upon property values of those who will not be compensated for a taking under the laws of the state; g. The effect upon environmental quality and ecological balance of protected watersheds, planned open space ⁵²¹ between corridors of development and green belt areas surrounding satellite community development; and h. Proximity of the line to historic sites and structures. In addition to the authority granted by section 59-G-l.-22, the board may attach to any grant of a special exception under this section other conditions that it may deem necessary to protect the public health, safety or general welfare.

The Howard County Zoning Regulations (1985), § 126(F)(37)(b), allows the County Board of Appeals to permit special exception uses under certain conditions: (1) Utility substations or pumping stations that the site for such use has a minimum access of 20 feet when adjacent to public street right-of-way. (2) The proposed location, design and method of operation will not have a detrimental effect on the privacy and quiet of the neighborhood and the safety of its inhabitants. (3) The architectural and landscaping treatment of such use will be in harmony with the area. (4) All required bulk requirements of the district are met.

(5) The Board finds a need for the proposed use. (6) The special exception may prescribe appropriate conditions and safeguards to minimize adverse effects on the character of the surrounding area, including requirements for soundproofing, for the construction of fences, barriers or other safety devices, for surfacing of all access roads and driveways, for shielding of floodlights or other artificial illumination, and/or for landscaping or screening. Subsection (B) of this section authorizes the Board to permit such special exception only if the following general standards are met: 1. The location and size of the use, the nature and intensity of the operation involved in (or conducted in connection with) the use, the size of the site in relation to the use, and the location of the site with respect to streets ⁵²² giving access to the site are such that the use will be in harmony with the land