A breath of fresh air and a second wind was breathed into dreams and potential plans for a large wind farm in Allegany County, Maryland. The Court of Special Appeals of Maryland in Dan’s Mountain Wind Force, LLC, et. al. v. Allegany County Board of Zoning Appeals, __ Md. App. __, __ A.3d __ (2018)(Case No. 804, September Term 2016; filed April 3, 2018), recently held that the Allegany County Board of Zoning Appeals (the “BZA”) did not properly apply the “uniqueness” test or the “practical difficulty” test necessary for an applicant to prove its eligibility to obtain a zoning variance.

The applicant, Dan’s Mountain Wind Force, LLC (“DMWF”) sought a variance to construct 17 wind turbines on property that it leased, which in this case involved several combined properties. The Allegany County Code allows for wind turbines by a special exception in the zoning district. Construction of the turbines; however, requires (1) a minimum separation of 2,000 feet from a residential structure, and (2) a minimum setback of not less than 3 times the height of the turbine. Since the proposed sites for the turbines did not meet either the setback or separation distances, or both, DMWF sought variances from the BZA, and also applied for a special exception.

DMWF presented testimony before the BZA regarding various factors which limited the use of the turbines at the proposed locations. The BZA denied the variance requests; however, because it found DMWF failed to establish that the properties were sufficiently “unique” and failed to demonstrate that the variances were in harmony with the zoning regulations. Since the special exception was dependent upon the variances, the special exception was also denied. DMWF consolidated the appeals, which were affirmed by the Circuit Court for Allegany County.

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