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Court of Appeals ruling could limit counties’ ability to regulate large solar projects, lawyer tells committee
Summary
At an interim session of the Joint Committee on Local Government, senior counsel Mac Johns summarized a Court of Appeals decision holding that statutory siting provisions and KRS chapter 100 constrain how counties without planning commissions can regulate large-scale solar projects; the Kentucky Supreme Court may now decide on discretionary review.
Mac Johns, senior counsel with English, Lucas, Priest & Owsley, told the interim Joint Committee on Local Government that a Court of Appeals panel in Clover Creek Solar Project LLC v. Breckenridge County concluded that provisions of KRS governing merchant electric generating facilities limit local authority to regulate siting unless a county has a planning and zoning commission under KRS chapter 100. Johns said the panel held that the statute “does in fact carve out the exclusive means by which a local government may regulate solar projects” and that Breckenridge County’s ordinance was flawed because the county lacked the required planning body.
"The bottom line is the Court of Appeals concluded that since Breckenridge County does not have a planning and zoning commission and it did not follow the procedures required by KRS chapter 100, the ordinance was fatally flawed," Johns said, summarizing the appellate decision and its reasoning about statutory preemption and procedural prerequisites.
Gracie Kelly of the Kentucky League of Cities urged caution in generalizing the decision beyond its facts. "This case arose under very unique facts," Kelly said, noting the dispute involved a county without planning and zoning and that KLC sees the Court of Appeals interpretation as narrow. Kelly told the committee the League had worked on 2023 legislation (House Bill 4) that, in their view, preserved broader home-rule authority and intended that local ordinances have primacy over conflicting siting statutes when drafted to do so.
Johns outlined the issues Breckenridge County raised in its motion for discretionary review to the Kentucky Supreme Court, including whether an ordinance that regulates the conditions under which a commercial activity may occur is a zoning ordinance subject to KRS chapter 100; whether counties without planning commissions retain authority under KRS 67.083 to regulate land-based commercial activities by exercise of home-rule powers; and whether provisions of the solar statutes implicitly prohibit local setback, decommissioning and similar rules except through planning and zoning established under chapter 100.
Johns cited statutory history: KRS 278.704 (minimum setbacks and siting rules for merchant electric generating facilities), the 2014 addition of KRS 278.718, and later amendments that addressed primacy and how local regulations interact with siting-board statutes. He also told members that 33 counties have adopted solar ordinances, 15 of them (including Breckenridge County) do not have planning and zoning, and that only 40 of Kentucky’s 120 counties have planning and zoning in place.
Committee members asked whether the appellate reasoning could extend beyond solar to other local land-use controls. Johns said there is precedent showing limits and that the question is one Breckenridge County is asking the Supreme Court to resolve. Kelly said the League encourages cities to consult counsel about how the decision might affect local rules and recommended the General Assembly consider clarification through legislation if needed.
The committee did not take a vote on legislation at the meeting. Members said they would monitor whether the Supreme Court grants discretionary review and whether clarifying statutory language is warranted.
