- The Enterprise
- The Recorder
An ordinance to exempt liquefied natural gas facilities from Calvert County zoning regulations has been deemed invalid by visiting Judge James P. Salmon in an order dated Aug. 6.
Ordinance 46-13 was passed Oct. 29, 2013, after a joint public hearing with the Calvert County Board of County Commissioners and the Calvert County Planning Commission, according to previous reports.
The Accokeek Mattawoman Piscataway Community Creeks Council filed a petition for judicial review Nov. 27, 2013, the day after the ordinance was recorded, Salmon wrote in his opinion.
Salmon heard the case June 6 in Calvert County Circuit Court where attorney Atty J. Holzer, representing the AMP Creeks Council, said the ordinance was “unquestionably property specific,” meaning the text amendment to the zoning ordinance was created solely for the proposed export project at Dominion Cove Point. County attorney John Norris argued June 6 that the ordinance applied to all 430 properties zoned as I-1 within the county. The Cove Point export facility is under review, pending final approval from the Federal Energy Regulatory Commission.
In the Aug. 6 opinion, Salmon said the ordinance violates the uniformity provision in the Land Use article and constitutes a special law that violates the Maryland Constitution.
Salmon wrote in his opinion the BOCC tried to completely exempt two uses, LNG export and import facilities and commercial power generating facilities, from being covered by zoning regulations while still requiring everyone else in the county to abide by those regulations.
“It was clear at the hearing held on Oct. 29, 2013, that Ordinance No. 46-13 was designed to exclusively apply to the Cove Point property, where, if all approvals can be obtained, Dominion intends to build an export facility,” Salmon wrote in his opinion.
Salmon also wrote that Maryland code requires that “zoning regulations shall be uniform for each class or kind of development throughout each district or zone.” Under ordinance 46-13, the Cove Point property would be subjected to no zoning regulation while the other property owners in the same primary zones are required to abide by all of the regulations, which is a violation of the state uniformity requirement.
“It is important to bear in mind that the County Commissioners’ action in excluding generating and LNG import and export facilities from coverage of the zoning regulations presents a very unusual situation,” Salmon wrote in his opinion. “To my knowledge, no other municipality or county in Maryland has attempted to do what the Calvert County Board of County Commissioners has attempted to do.”
The AMP Creeks Council has two other cases pending involving the Cove Point project: a case against Calvert County over the denial of a Public Information Act request and an appeal of a Maryland Public Service Commission decision, according to a press release from the AMP Creeks Council.
“This is a remarkable victory for the people of Lusby, Maryland, and folks fighting fracking and LNG exports throughout the Mid-Atlantic region,” said Kelly Canavan, president of the AMP Creeks Council in a press release.
Salmon’s opinion is being reviewed by the county staff, the AMP creeks council and Dominion to determine the implications and possible next steps.
“We do not see any schedule impact,” said Dominion spokesman Karl Neddenien on Tuesday. “ … We’re reviewing the decision in detail.”
Norris said in an email Tuesday that as an intervening party, Dominion may appeal the decision regardless of what the county decides to do. The board of county commissioners does not meet again until Aug. 19, which is the earliest the BOCC could make a decision on how to proceed. As this is a legal matter, the commissioners can discuss this in closed session, Norris said.
“My ruling in this case has no direct bearing on whether the facility will be built or not,” Salmon wrote in the opinion. “I simply have concluded that Ordinance No. 46-13 is invalid for two independent reasons.”