Massey So­lar claims foresta­tion rules don’t ap­ply

Kent County News - - NEWS - By DANIEL DIVILIO ddivilio@thekent­coun­

MASSEY — County of­fi­cials dis­agree with the de­vel­op­ers of a so­lar project in Massey who say lo­cal for­est con­ser­va­tion reg­u­la­tions do not ap­ply to their project.

De­vel­oped by Penn­syl­va­nia-based Com­mu­nity En­ergy, Massey So­lar would be a 5-megawatt gen­er­at­ing fa­cil­ity lo­cated at 12200 Massey Road. It is the sec­ond of two so­lar projects in Massey; the other was de­vel­oped un­der the name OneEn­ergy Blue Star So­lar and has re­ceived ap­proval from the Mary­land Public Ser­vice Com­mis­sion.

Massey So­lar is still un­der re­view by the PSC for a cer­tifi­cate of public con­ve­nience and ne­ces­sity. The PSC held public hear­ings on Massey So­lar March 6 and April 26, both at St. Cle­ment’s Epis­co­pal Church in Massey.

Massey So­lar pulled its ap­pli­ca­tion from re­view for a time as the PSC wres­tled with sim­i­lar projects over the ap­pli­ca­bil­ity of Mary­land’s For­est Con­ser­va­tion Act. While the project is back on the PSC’s ac­tive docket, Massey So­lar de­vel­op­ers are ar­gu­ing that Kent County’s or­di­nance en­forc­ing the For­est Con­ser­va­tion Act does not ap­ply to their project.

As found on the county’s web­site, the lo­cal For­est Con­ser­va­tion Or­di­nance states that it does not ap­ply to “land for elec­tric use gen­er­at­ing sta­tions” pro­vided that a CPCN has been is­sued by the state and “Cut­ting or clear­ing of for­est is con­cluded to min­i­mize the lost of for­est.”

The county con­tends that projects like Massey So­lar and OneEn­ergy Blue Star So­lar are re­quired to meet for­est con­ser­va­tion re­quire- ments as found un­der the reg­u­la­tions for their zon­ing des­ig­na­tion.

Some Kent County res­i­dents ar­gue that Massey So­lar’s de­vel­op­ers are do­ing an end-around by seek­ing a CPCN from the Public Ser­vice Com­mis­sion be­fore get­ting county ap­proval for the project.

Janet Chris­tensen-Lewis, chair­man of the Kent Con­ser­va­tion and Preser­va­tion Al­liance, raised that is­sue again at the April 26 public hear­ing. She also voiced con­cerns about no­tices the de­vel­op­ers pro­vided re­gard­ing the hear­ing.

“It just seems they have this sense that the rules don’t ap­ply to them,” Chris­tensenLewis said.

The Mary­land Depart­ment of Nat­u­ral Re­sources Power Plant Re­search Pro­gram, or PPRP, is­sued rec­om­mended li­cense con­di­tions for Massey So­lar, no­tably that the de­vel­op­ers con­sult with county of­fi­cials to “iden­tify mit­i­ga­tion re­quire­ments for the Project.”

“Prior to the start of con­struc­tion, Massey So­lar shall pro­vide doc­u­men­ta­tion to the PSC and PPRP that a For­est Con­ser­va­tion Plan for the Project has been ap­proved by Kent County,” the list of con­di­tions states.

PPRP Pro­gram Man­ager Robert Sadzin­ski, in sep­a­rate tes­ti­mony sub­mit­ted to the PSC March 22, said the rec­om­men­da­tions were con­sis­tent with those is­sued in the OneEn­ergy Blue Star So­lar case.

In tes­ti­mony pro­vided April 4 to the PSC, Com­mu­nity En­ergy’s Tom An­der­son said the county For­est Con­ser­va­tion Or­di­nance does not ap­ply to CPCN projects pro­vided they min­i­mize for­est loss.

“The Massey So­lar project is an elec­tric gen­er­at­ing fa­cil­ity that will be de­vel­oped on a site that does not re­quire the re­moval of any trees in or­der to con­struct the project. Be­cause the site does not re­quire the re­moval of trees, the project sat­is­fies the FCO’s thresh­old re­quire­ment of min­i­miz­ing the loss of for­est and thus qual­i­fies for the FCO ex­emp­tion,” An­der­son said.

Sadzin­ski pro­vided a re­but­tal April 10, say­ing the PPRP rec­om­men­da­tion was to en­sure that the de­vel­op­ers con­sult with the county and sat­isfy “all site plan­ning obli­ga­tions, in­clud­ing those re­lated to for­est con­ser­va­tion, in a man­ner that is con­sis­tent with other CPCN cases in Kent County.”

OneEn­ergy Blue Star So­lar ini­tially fought for­est con­ser­va­tion re­quire­ments, call­ing them a “tree tax.” The fi­nal or­der from the PSC re­quired the de­vel­op­ers to com­ply with the law.

Sadzin­ski said as much in his April 10 re­but­tal tes­ti­mony.

“PPRP as­serts that, in or­der to pro­tect the State’s forests and other sen­si­tive ar­eas, Massey So­lar should be re­quired to com­ply with the same County site plan­ning rules ap­plied to OneEn­ergy Blue Star,” he said.

Ac­cord­ing to an April 24 let­ter to the PSC from Kent County Plan­ning Com­mis­sion at­tor­ney Mitch Mow­ell, the county has main­tained the ap­pli­ca­bil­ity of for­est con­ser­va­tion pro­vi­sions re­quired of the zon­ing des­ig­na­tion for Massey So­lar and OneEn­ergy Blue Star So­lar in the Kent County Land Use Or­di­nance.

“When read closely, nei­ther the OneEn­ergy nor the Massey So­lar cases meet the ex­cep­tion pro­vi­sions and are, in fact, sub­ject to the ap­pli­ca­bil­ity of the act,” wrote Kent County Di­rec­tor of Plan­ning, Hous­ing and Zon­ing Amy More­dock in an email Tues­day.

Sadzin­ski also said in his April 10 re­but­tal that the state For­est Con­ser­va­tion Act is not about re­plac­ing trees re­moved from a par­tic­u­lar project site.

“Rather, it rec­og­nizes ev­ery project de­vel­oper’s obli­ga­tion, en­vi­sioned in the FCA, to con­trib­ute to­ward im­prov­ing Mary­land’s nat­u­ral re­sources. Re­tain­ing and ex­pand­ing ex­ist­ing forested ar­eas, by pro­mot­ing ad­di­tional tree planting, helps pro­tect sen­si­tive habi­tats and im­prove sur­face wa­ter qual­ity in lo­cal streams within Ch­e­sa­peake Bay wa­ter­shed,” he said.

An­der­son ap­peared at the April 26 public hear­ing, though he fo­cused his tes­ti­mony there on back­ground about the project, its lo­ca­tion and size. He spoke about how the so­lar pan­els that can track the sun’s move­ment through­out the day to gen­er­ate more en­ergy.

Kent County farmer Pat Lan­gen­felder said at the hear­ing that she is happy to see a so­lar project of this size com­ing to the county. She said her fam­ily has a so­lar ar­ray on their farm.

“I’m not here in any op­po­si­tion to the so­lar project per se,” said Lan­gen­felder, who also is vice chair­man of the Kent Con­ser­va­tion and Preser­va­tion Al­liance. “But I do ob­ject to the fact that the so­lar project does not want to com­ply with our For­est Con­ser­va­tion Or­di­nance that our county has and is try­ing to cir­cum­vent that.”

John Lysinger, sec­re­tary of the Kent Con­ser­va­tion and Preser­va­tion Al­liance, said he is con­cerned about the prece­dent that could set.

Stephanie Jones, envi- ron­men­tal plan­ner with the Depart­ment of Plan­ning, Hous­ing and Zon­ing, said the project does con­form to the zon­ing, though for­est con­ser­va­tion has not been ad­dressed by the de­vel­op­ers.

“The county com­mis­sion­ers, the plan­ning com­mis­sion, the plan­ning depart­ment are not op­posed to the project. It’s just the fact that they need to address for­est con­ser­va­tion within the county or­di­nance (and) also for state stan­dards,” Jones said.

Chris­tensen-Lewis read a let­ter from ShoreRivers call­ing for the county For­est Con­ser­va­tion Or­di­nance to be ap­plied to any devel­op­ment “to pro­tect and en­hance our sparse for­est re­sources.” The let­ter states that trees are some of the best pro­tec­tors for creeks and rivers.

“Kent County, be­cause of its farm­ing his­tory, has one of the low­est con­cen­tra­tions of trees in any of the coun­ties in the state of Mary­land. Only 23 per­cent of our land mass is is un­der tree cover,” Chris­tensen-Lewis said, cit­ing the Kent County Com­pre­hen­sive Plan, a guide for land use and devel­op­ment. “We know that the For­est Con­ser­va­tion Act was put in place specif­i­cally for wa­ter fil­tra­tion and it is the most ben­e­fi­cial thing that can be done.”

Writ­ten com­ments on Massey So­lar will be ac­cepted through May 10. They may be sent to: David J. Collins, Ex­ec­u­tive Sec­re­tary, Mary­land Public Ser­vice Com­mis­sion, Wil­liam Don­ald Schae­fer Tower, 6 St. Paul Street, 16th Floor, Bal­ti­more, MD 21202.

To read the PSC fil­ings as­so­ci­ated with Massey So­lar, go to It is Case No. 9407.


Tom An­der­son of Com­mu­nity En­ergy So­lar out­lines the pro­posed Massey So­lar project April 26 dur­ing a Public Ser­vice Com­mis­sion hear­ing held at St. Cle­ment’s Epis­co­pal Church.

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