Appellant tells Howard County hearing examiner DPZ wrongly voided Roxbury Road solar conditional use

Christopher DeCarlo, attorney for the appellant Community Power Group, told the Howard County hearing examiner that the Department of Planning and Zoning's (DPZ) July 17, 2024 email declaring the project's conditional use "void" was incorrect and arbitrary. "This is an appeal of DPZ's email determination that was issued on 07/17/2024, in which they found or determined that the conditional use associated with this project and this property, they said it was void," DeCarlo said during opening remarks.

DeCarlo said an uncontested conditional-use approval for a ground-mounted commercial solar facility on Roxbury Road was issued in March 2022 (Decision Order 03/31/2022, BA21031C). He told the examiner the county's two-year requirement to pull building permits for a conditional use contains exceptions, most relevantly the zoning provision identified in the record as "131013E," which exempts projects that are "actively processing plans" under the procedures of Title 16, Subtitles 1 and 11. DeCarlo argued the project qualifies under both the present-tense and past-tense exceptions in that regulation and asked the examiner to reverse DPZ's determination.

Three witnesses who work on the project described the submission and review timeline. Piero ("Pete") Melitz, a registered civil engineer with Century Engineering, identified an email dated 12/07/2023 showing the environmental concept plan (ECP) was submitted and accepted into DPZ's ProjectDocs system for intake. "The plan was submitted and it was accepted, and the intake as noted was everything was found acceptable to begin the processing for its review," Melitz testified. He said DPZ's first substantive comments on the ECP arrived on 02/06/2024, that the team resubmitted a revised ECP on 04/23/2024 and again on 06/13/2024, and that the ECP approval notice is dated 06/21/2024.

Melitz and Jim Whitmer, a former Howard County development-engineering staff member who now owns J and M Engineering, both testified that the county's own guidance and Title 16/Title 18 code structure treat the environmental concept plan as the initial plan in the multi-stage review sequence that leads to a site development plan (SDP). Whitmer said the ECP includes technical materials'wetland delineations, forest studies and initial stormwater mappings'that are intertwined with the SDP review.

The project team also said the SDP was submitted and accepted later in the summer. Melitz testified the SDP was submitted on Aug. 1 and formally accepted on Aug. 26, 2024; he introduced DPZ notifications showing an SDP intake and payment acknowledgement in late August. DeCarlo argued that DPZ's acceptance of an SDP filing and fee payment while earlier having sent a determination that the conditional use was void is inconsistent and supports reversal.

Rachel Boots, senior development engineer and the project manager for Community Power Group, described parallel approvals the team pursued after the conditional-use approval, including a Public Service Commission (PSC) approval the team received in April 2023 and coordination with the electric utility (BGE) regarding interconnection capacity. Boots told the examiner the project team had been "diligently working on the project behind the scenes" and that during the ECP review no DPZ reviewer raised the two-year expiration as an issue. "We got our ECP approval after the expiration. We are actively processing plans," Boots said.

Counsel closed by asking the hearing examiner to reverse DPZ's decision and rule that the conditional use is not void so the project may proceed. The hearing examiner closed the record and stated a decision and order would be issued; the transcript's wording about the timing of that decision was unclear and did not specify a precise deadline.

The record entered by the appellant includes an approval order for the 03/31/2022 conditional use (appellant's exhibit 1), ProjectDocs intake and acceptance emails for the ECP and SDP (exhibits 2, 5 and 6), a DPZ internal policy memo describing plan sequencing for commercial solar projects (exhibit 3), the ECP approval letter dated 06/21/2024 (exhibit 4), and DPZ web guidance on plan submissions (exhibit 8). No DPZ representative testified during the appellant's case to explain the department's July 17 determination; DPZ's underlying rationale beyond the email determination did not appear in the appellant's evidence.

The hearing concluded and the examiner said a decision and order would follow.