Ecoplexus Inc. v. Cty. of CurrituckÂ

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-656
Filed: 19 December 2017
Currituck County, No. 16 CVS 203
ECOPLEXUS INC., FRESH AIR ENERGY II, LLC and CURRITUCK SUNSHINE
FARM, LLC, Petitioners,
v.
COUNTY OF CURRITUCK, BOARD OF COMMISSIONERS, and DAVID L.
GRIGGS, in his official capacity as Chairman of the Board of Commissioners, and
O.VANCE AYDLETT, JR., S. PAUL O’NEAL, MIKE D. HALL, MIKE H. PAYMENT,
PAUL M. BEAUMONT, and MARION GILBERT, in their official capacities as
members of the Board of Commissioners of the County of Currituck, Respondents,
and
STEVEN P. FENTRESS, DONALD LEON PROFFITT, GAIL LYNN PROFFITT,
JAMES J. WIERZBICKI, MARGARET GERALDINE NEWSOME, DAVID L. RICE,
LINDA L. RICE, RANDY L. MILLS, ROY W. TATE, KATHY C. TATE, FIDEL C.
ESCOBAR, LAURA DARDEN and MICHELLE LYNN CUNNINGHAM, Intervenor-
Respondents.
Appeal by petitioners from order entered 23 March 2017 by Judge Jerry R.
Tillett in Currituck County Superior Court. Heard in the Court of Appeals 15
November 2017.
Tuggle Duggins P.A., by Michael S. Fox, Benjamin P. Hintze and Jaye E.
Bingham-Hinch, for petitioner-appellants.
Currituck County Attorney Donald I. McRee, Jr. for respondent-appellees.
TYSON, Judge.
ECOPLEXUS V. CURRITUCK COUNTY
Opinion of the Court
Ecoplexus, Inc., Fresh Air Energy II, LLC, and Currituck Sunshine Farm, LLC
(“Petitioners”) appeal from an order affirming the decision of the Currituck County
Board of Commissioners (“the Board”) to deny Petitioners’ application for a use
permit to construct a solar energy array farm. We reverse and remand.
I. Background
Petitioners Currituck Sunshine Farm, LLC (“Currituck”) and Ecoplexus, Inc.
(“Ecoplexus”) applied for a use permit on 11 December 2015, to construct a solar array
farm on the vacant property that was previously used as Goose Creek Golf Course
(“the property”), located at 6562 Caratoke Highway, Grandy, North Carolina. The
golf course closed as a result of a foreclosure action in 2012 and has remained unused.
Currituck owns the property, and Ecoplexus is a solar farm developer. Fresh Air
Energy II, LLC (“Fresh Air”) is the proposed tenant of the solar array farm to be
developed.
The property is located in an Agricultural (“AG”) Zoning District. The
Currituck County Unified Development Ordinance (“UDO”) provides that a “solar
array” is allowed as a permitted use on AG zoned land, subject to a use permit.
The Currituck County Planning Staff and the Planning Board unanimously
recommended the application for the permit to be approved, finding Petitioners’
application fulfilled all the use permit review standards. On 4 April 2016, the
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Opinion of the Court
Currituck County Board of Commissioners held a quasi-judicial hearing to consider
Petitioners’ use permit application.
A. Evidence Presented by Petitioners
Ecoplexus is a developer of solar energy farms, with projects located in five
states, including ten projects within North Carolina. Nathan Rogers of Ecoplexus
testified regarding the design of the proposed solar energy farm. He explained the
solar panels would be arranged in rows and attached to metal racking, bringing the
total height to 8 to 10 feet. To comply with the UDO’s 300-foot setback requirements,
the majority of the existing trees on the property would remain, with Ecoplexus filling
in any gaps in the natural barrier with landscaping. Mr. Rogers opined that the solar
farm would be harmonious with the surrounding properties. Concerning herbicide
use, Mr. Rogers testified he preferred not to use herbicides, but did not rule out the
possibility of future herbicide use.
Tommy Cleveland, a licensed engineer specializing in solar energy in North
Carolina, testified regarding the materials to be used. Solar panels are constructed
of “very non-toxic” silicone-based cells, and the other components consist of glass,
aluminum, and plastic. He testified the safety of these materials has been tested over
the course of 25 to 30 years. Mr. Cleveland asserted there would be no emissions,
and the electromagnetic field produced by the panels would be below international
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Opinion of the Court
occupational hazard levels, and virtually non-existent at the perimeter of the
property.
Mr. Cleveland also testified solar facilities can be built to withstand hurricane
force winds, and the proposed facility will be engineered to withstand winds of up to
120 mph. Because of the overall safety of solar farms, Mr. Cleveland testified there
would be no negative health or safety impacts to the neighboring properties or the
community from the installation of this solar energy system.
Rich Kirkland, a certified and MAI designated appraiser, testified regarding
the impact of the proposed solar farm on the valuation of the surrounding properties.
Mr. Kirkland stated he has visited over 170 solar farms in North Carolina, and
testified that over 90 percent of properties adjoining solar farms in North Carolina
are located “where homes and fields meet,” between agricultural and residential
areas.
Regarding the aesthetics of the proposed site, Mr. Kirkland testified the 400
foot average buffer from the proposed location of the solar panels to nearby homes is
greater than the 150 foot average commonly observed in other projects across North
Carolina. With the large setback buffer from the homes in the area and the natural
vegetative barrier, Mr. Kirkland opined the property is a harmonious location for a
solar farm.
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Opinion of the Court
Mr. Kirkland also conducted a “matched pair” analysis of four other solar farm
projects. In those properties, he opined no effects were shown on either the sale or
value of surrounding properties. Mr. Kirkland predicted a similar outcome for the
proposed facility, and opined the construction of the solar farm would not negatively
impact surrounding property values.
Kim Hamby, a North Carolina licensed engineer with 20 years of experience
in water management, testified regarding the surface water, impoundments, and
drainage on the property. Several ponds from the golf course would be filled in to
construct the solar farm. Ms. Hamby testified sufficient drainage would be provided
to make up for filled ponds. The new drainage system would be installed before the
ponds are filled in, and the larger existing ponds will remain along the perimeter of
the property. Further, the proposed solar farm would reduce the impervious surfaces
of the property and leave plenty of land to manage and absorb surface water
effectively. Ms. Hamby testified the drainage plan would be submitted for review and
approval by the county engineers and the North Carolina Department of
Environmental Quality. Plaintiffs assert this evidence, taken together, establishes a
prima facie case of entitlement to the use permit.
B. Evidence Presented by Respondents
Herb Eckerlin, a professor in mechanical and aerospace engineering at North
Carolina State University, testified regarding the overall problems he sees with solar
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Opinion of the Court
energy. Dr. Eckerlin expressed concern with the high cost of energy in places such
as California and Germany, but stated his testimony was based upon internet
research. He also took issue with the legislative decision to allow only twenty percent
of the value of a solar farm to be taxed, and opined Currituck County would see very
little economic or tax benefit from allowing a solar farm to be approved.
Dr. Eckerlin opined that the actual number of panels or type of panels installed
in solar farms would be different from what was stated in the application, and there
was no local or state oversight available to address such problems. He believes all
solar farm construction should cease until these issues are addressed.
Ron Heiniger, a professor in the crop, soil, and environmental science
department at North Carolina State University, testified regarding the holding
ponds. Holding ponds are important to maintain and control nutrient runoff from
the property, and protect the surrounding environment. Dr. Heiniger asserted these
holding ponds were important for containing the pesticides and herbicides applied
when the property was used as a golf course, and opined this same purpose would be
necessary for the proposed solar farm. He testified the federal government does not
allow solar farms to be located on property owned by the United States Department
of Agriculture (“USDA”) in North Carolina, though he conceded a solar farm would
not be in harmony in a national forest or park, which is the use of the majority of
USDA-owned land located in North Carolina.
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Opinion of the Court
Bruce Sauter, a certified appraiser, testified regarding the highest and best
use for the property. He had appraised Goose Creek Golf Course in 2012, prior to the
foreclosure action, and concluded the highest and best use of the property would be
single family homes. Mr. Sauter opined the proposed solar farm would not be
harmonious with the surrounding residential community, but asserted that
harmonious use is the same as highest and best use. He questioned Mr. Kirkland’s
opinions on land value, as Mr. Kirkland’s evaluation did not consider properties in
the eastern part of the state. Mr. Sauter opined it was too early to tell how land and
home values would be affected in Currituck County by solar farms.
Steve Fentress, a resident of Grandy Road, testified and expressed his concerns
about the proposed project. He questioned whether the amount of on-site fill would
be enough to fill in the ponds, and was concerned about drainage on adjoining
properties as a result of filling in the ponds. Mr. Fentress argued solar farms are an
industry, and should be regulated under industrial use. He also testified as to the
lack of inspections at other nearby, established solar farms, and communicated the
need for such inspections, especially concerning the joining of metals from the panel
to the frame.
Laura Darden, an adjoining property owner, testified regarding the current
water drainage issues. One of the existing retention ponds from the defunct golf
course is located near her property, and every time it rains, she states it overflows
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Opinion of the Court
onto her property. She asserted that at least fifty percent of her property was
underwater at the time of the hearing, and she was concerned that changes resulting
from constructing the solar farm would only make flooding on her property worse.
C. Procedural Outcome
The Board denied Petitioners’ application for a use permit for failure to comply
with the Use Permit Review Standards in an order dated 2 May 2016. The Board
found the proposed solar farm (1) would endanger the public health or safety, (2)
would not be in harmony with the surrounding area, and (3) would not be in
conformity with the 2006 Land Use Plan.
On 31 May 2016, Petitioners filed a petition for writ of certiorari, seeking
review of the Board’s decision in the superior court. The superior court upheld the
Board’s decision in an order dated 23 March 2017. Petitioners appeal.
II. Jurisdiction
Jurisdiction lies in this Court from a final order of the superior court pursuant
to N.C. Gen Stat. § 7A-27(b) (2015).
III. Issues
Petitioners argue the superior court erred by affirming the Board’s decision
because: (1) their application for a use permit was supported by competent,
substantial, and material evidence; (2) they made a prima facie showing entitling
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Opinion of the Court
them to the use permit; and, (3) the Board’s denial was not supported by competent,
substantial, and material evidence, and its decision was arbitrary and capricious.
IV. Standard of Review
“A legislative body such as the Board, when granting or denying a conditional
use permit, sits as a quasi-judicial body.” Sun Suites Holdings, LLC v. Bd. of
Alderman of Town of Garner, 139 N.C. App. 269, 271, 533 S.E.2d 525, 527, disc.
review denied, 353 N.C. 280, 546 S.E.2d 397 (2000).
“The Board’s decisions ‘shall be subject to review of the superior court in the
nature of certiorari.’” Dellinger v. Lincoln Cty., __ N.C. App. __, __, 789 S.E.2d 21, 26
(quoting N.C. Gen. Stat. § 160A-381(c) (2015)), disc. review denied, 369 N.C. 190, 794
S.E.2d 329 (2016). “In reviewing the Commissioners’ decision, the superior court sits
as an appellate court, and not as a trier of facts.” Innovative 55, LLC v. Robeson Cty.,
__ N.C. App. __, __, 801 S.E.2d 671, 675 (2017) (citation and quotation marks
omitted). Under the scope of its review, a superior court may only determine whether:
1) the [b]oard committed any errors in law; 2) the [b]oard
followed lawful procedure; 3) the petitioner was afforded
appropriate due process; 4) the [b]oard’s decision was
supported by competent evidence in the whole record; and
5) [whether] the [b]oard’s decision was arbitrary and
capricious.
Overton v. Camden Cty., 155 N.C. App. 391, 393, 574 S.E.2d 157, 159 (2002)
(alterations in original) (quoting Capital Outdoor, Inc. v. Guilford Cty. Bd. of
Adjustment, 152 N.C. App. 474, 475, 567 S.E.2d 440, 441 (2002) (citation omitted)).
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Opinion of the Court
This Court’s review of the superior court’s order “is limited to determining
whether the superior court applied the correct standard of review, and to determine
whether the superior court correctly applied that standard.” Overton, 155 N.C. App.
at 393-94, 574 S.E.2d at 160.
“When a party alleges the Board of Commissioners’ decision was based upon
an error of law, both the superior court, sitting as an appellate court, and this Court
reviews the matter de novo, considering the matter anew.” Dellinger, ___ N.C. App.
at ___,789 S.E.2d at 26 (citation omitted). When the petitioner argues the Board’s
decision is arbitrary and capricious, this Court applies the whole record test. Id. “The
whole record test requires that the trial court examine all competent evidence to
determine whether the decision was supported by substantial evidence.” Morris
Commc’ns. Corp. v. Bd. of Adjustment of Gastonia, 159 N.C. App. 598, 600, 583 S.E.2d
419, 421 (2003) (citation omitted).
V. Analysis
Petitioners argue the Board improperly denied their application for a use
permit, as their application was supported by competent, substantial, and material
evidence. Petitioners assert this prima facie showing entitles them to a use permit
under the standards in the UDO, and the opponents of the solar farm did not present
competent or material evidence sufficient to overcome or rebut this prima facie
showing. We agree.
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Opinion of the Court
A. Petitioners’ Prima Facie Showing
“When an applicant for a conditional use permit produces competent, material,
and substantial evidence of compliance with all ordinance requirements, the
applicant has made a prima facie showing of entitlement to a permit.” Howard v. City
of Kinston, 148 N.C. App. 238, 246, 558 S.E.2d 221, 227 (2002) (citation and quotation
marks omitted). “Material evidence is ‘[e]vidence having some logical connection with
the facts of consequence or the issues.’” Dellinger, __ N.C. App. at __, 789 S.E.2d at
27 (quoting Black’s Law Dictionary 638 (9th ed. 2009). “Substantial evidence is
evidence a reasonable mind might accept as adequate to support a conclusion.”
Humane Soc’y of Moore County v. Town of S. Pines, 161 N.C. App. 625, 629, 589
S.E.2d 162, 165 (2003) (citation and quotation marks omitted).
While the applicant must make an initial, or prima facie, showing of
compliance, “[t]o hold that an applicant must first anticipate and then prove or
disprove each and every general consideration would impose an intolerable, if not
impossible, burden on an applicant for a conditional use permit. An applicant need
not negate every possible objection to the proposed use.” Woodhouse v. Bd. of Comm’rs
of Town of Nags Head, 299 N.C. 211, 219, 261 S.E.2d 882, 887-88 (1980) (citation and
quotation marks omitted).
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ECOPLEXUS V. CURRITUCK COUNTY
Opinion of the Court
Solar energy arrays are expressly scheduled as a permitted use in property
zoned AG under section 4.1.2 of the Currituck County UDO, subject to a use permit.
Section 2.4.6 of the UDO, “Use Permit Review Standards” provides:
A use permit shall be approved on a finding the applicant
demonstrates the proposed use will:
(1) Not endanger the public health or safety;
(2) Not injure the value of adjoining or abutting lands and
will be in harmony with the area in which it is located;
(3) Be in conformity with the Land Use Plan or other
officially adopted plan.
(4) Not exceed the county’s ability to provide adequate
public facilities, including but not limited to, schools, fire
and rescue, law enforcement, and other county facilities.
Applicable state standards and guidelines shall be followed
for determining when public facilities are adequate.
(Emphasis supplied).
The Planning Board unanimously found Petitioners had met their burden
under section 2.4.6 of the UDO as to the first three standards, and that standard (4)
was not at issue in this case.
Petitioners then presented competent, material, and substantial lay and
expert testimony to the Board to show: (1) solar panels are safe and generate no toxic
emissions, and the proposed solar farm will be able to withstand winds up to 120
mph; (2) the proposed solar farm will not adversely affect surrounding property
values, and, due to natural and supplemental vegetation buffers and setbacks, will
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Opinion of the Court
be in harmony with the surrounding area; and, (3) the proposed project complies with
the Land Use Plan as a full service sub-area.
B. Board’s Denial of Petitioners’ Prima Facie Showing
“Once an applicant makes [a prima facie] showing, the burden of establishing
that the approval of a conditional use permit would endanger the public health,
safety, and welfare falls upon those who oppose the issuance of the permit.” Howard,
148 N.C. App. at 246, 558 S.E.2d at 227. If after presentation of rebuttal evidence a
board denies the application, the denial must be “based upon findings which are
supported by competent, material, and substantial evidence appearing in the record.”
Id.
After presentation of Petitioners’ and opponents’ evidence, the Board
concluded the proposed solar energy farm:
1) Will endanger the public health or safety because:
a. The applicant . . . did not adequately address
water drainage to ensure that the amount of water
that needs to vacate the property will be able to do
so safely without negative impact to adjoining
properties. . . .
b. There is significant disparity with the amount of
material that is available on the site for backfilling
the ponds and . . . [backfilling] will create an
additional drainage issue . . . .
c. Testimony . . . relative to the use of chemicals on
the property, specifically herbicides is unspecified as
to the use and amount. Without some limitation . . .
it is going to be excessive and present a health
hazard to those around it.
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Opinion of the Court
2) Will not be in harmony with the area in which it is
located because:
a. Expert testimony from Mr. Sauter indicates a
solar farm is not the highest and best use of the
property, is not in harmony with adjacent
neighborhoods, and provides stark contrast to the
adjacent subdivision.
3) Will not be in conformity with the 2006 Land Use Plan
because:
a. It is a large facility being reverted or being used
in a manner that would not be conducive in a full
service district because this district is intended for
community centers that include a diversity of
housing types and clusters of businesses to serve the
immediate area.
....
d. The use is not consistent with POLICY ID9 which
states the county shall not support the development
of energy producing facilities within its jurisdiction.
e. The use is not consistent with POLICY CD6 which
states that appropriate office and institutional
developments . . . be encouraged to locate as a
transitional land use between residential areas and
commercial. A solar array is classified as an
institutional use, but . . . is not an appropriate
transitional use.
The Board’s decision must include and be based upon all of the Petitioners’
evidence, or lack thereof, to show a prima facie case. See Innovative 55, __ N.C. App.
at __, 801 S.E.2d at 676. The denial cannot be based on evidence solely presented by
the opponents to the solar farm, the Board’s own personal opinions, or by no evidence
at all. See id.
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Opinion of the Court
“Speculative and general lay opinions and bare or vague assertions do not
constitute competent evidence” to overcome an applicant’s prima facie showing. Id.
at __, 801 S.E.2d at 678.
Speculative assertions, mere expression of opinion, and
generalized fears about the possible effects of granting a
permit are insufficient to support the findings of a quasi-
judicial body. In other words, the denial of a conditional
use permit may not be based on conclusions which are
speculative, sentimental, personal, vague, or merely an
excuse to prohibit the requested use.
Howard, 148 N.C. App. at 246, 558 S.E.2d at 227 (citation and internal quotation
marks omitted).
Regarding finding 1) a. and b., the Board wholly ignored Petitioners’ expert
testimony on water management, and solely considered lay witnesses’ testimony of
their speculative fears of worsening floods due to the present state of storm water
drainage and management on adjacent properties. Even if true, this flooding is based
upon current conditions from the defunct golf course and not due to conditions or uses
proposed by Petitioners. Further, Petitioners asserted their desire not to use
herbicides. Very little testimony addressed the use of chemicals on the property. It
appears this finding is based on the generalized fear of the Board, as no competent
evidence in the record supports the finding of hazardous levels of herbicide use.
Finding 1) is not supported by competent, material, and substantial evidence to rebut
Petitioners’ prima facie showing, but is merely based on generalized and speculative
fears and concerns. See id.
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Opinion of the Court
Similarly, the Board erred in regards to finding 2), by only considering
testimony of opponents and ignoring the expert testimony offered by Petitioners. Mr.
Sauter did not present any value impact evidence of properties surrounding solar
farms, but merely stated his opinion on the impact on surrounding properties. Mr.
Kirkland presented data relating to the value of properties around existing solar
farms. Finding 2) erroneously equates “harmonious use” with “highest and best use”
after Mr. Sauter conceded that the use need not be “the highest and best use” to be
“harmonious.” This finding is not based on competent, material, and substantial
evidence to rebut Petitioners’ prima facie case.
It does not appear the Board used any record evidence to support its finding 3)
that a solar farm is an incompatible use. Mr. Fentress, a lay witness, asserted his
belief that solar farms are an industrial use, in contradiction to the Currituck County
UDO specifically designating solar arrays as an appropriate and permitted use in
agricultural areas, subject to a use permit. General assertions criticizing solar farms
by lay witnesses do not rise to the level of competent, material, and substantial
evidence to overcome the prior legislative determination to allow solar arrays as a
permitted use in agricultural areas, after meeting permit requirements. Blair Invs.,
LLC v. Roanoke Rapids City Council, 231 N.C. App. 318, 325, 752 S.E.2d 524, 530
(2013). Further, no other evidence in the record supports the Board’s five findings
that a solar energy farm is an incompatible land use.
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Opinion of the Court
The Planning Board unanimously found Full Service areas “are those parts of
the county where a broad range of infrastructure and service investments have been
provided.” They found and recommended the proposed solar energy farm will be
harmonious in a Full Service district, and supports two specific policies of the Land
Use Plan as adopted by the County Commission:
a. POLICY ED1: New and expanding industries and
businesses should be especially encouraged that: 1)
diversify the local economy, 2) train and utilize a more
highly skilled labor force, and 3) are compatible with the
environmental quality and natural amenity-based
economy of Currituck County.
b. POLICY ID1 Provide industrial development
opportunities for cluster industries identified by Currituck
Economic Development such as defense aero-aviation, port
and maritime related industries, alternative energy,
agriculture and food, and local existing business support.
(Emphasis supplied).
In contrast, the Board found the proposed solar energy farm violated Policy
ID9, which states, “Currituck County shall not support the exploration or
development of ENERGY PRODUCING FACILITIES within its jurisdiction
including, but not limited to, oil and natural gas wells, and associated staging,
transportation, refinement, processing or on-shore service and support facilities.”
The Board points to Policy ID9 as evidence a solar farm, as an “energy producing
facility,” does not conform to the 2006 Land Use Plan.
While a solar farm could be considered an “energy producing facility,” the
examples listed in ID9: “oil and natural gas wells and associated staging,
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Opinion of the Court
transportation, refinement, processing or on-shore service and support facilities,” are
distinctly different than a solar energy farm, which is clearly a form of “alternative
energy.” Further, the Land Use Plan clearly indicates prior legislative support for
“cluster industries identified by Currituck Economic Development such as . . .
alternative energy.”
These prior legislative findings by the Board of Commissioners clearly refute
the Board’s findings at bar, which are not supported by competent, material, and
substantial evidence, that the proposed use would not be in conformity with a Full
Service area and would be an “energy producing facility.” The Planning Board’s
recommendations also reflect the current permitted developments in Currituck
County, which contains two previously approved solar energy farms.
Without competent, material, and substantial evidence to overcome
Petitioners’ prima facie showing to support its findings, it appears the Board relied
on generalized lay concerns, speculation, and “mere expression of opinion” and
improperly denied Petitioners’ use permit application after Petitioners had made a
prima facie showing of entitlement to the use permit. See Howard, 148 N.C. App. at
246, 558 S.E.2d at 529.
VI. Conclusion
Based upon review of the whole record, Petitioners presented a prima facie
showing of entitlement to their use permit to construct a solar energy farm in a zoning
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Opinion of the Court
district where such facility is a permitted use. The Board’s denial of the application
was not based on competent, material, and substantial evidence to rebut the
Petitioners’ prima facie showing. “When a Board action is unsupported by competent
substantial evidence, such action must be set aside for it is arbitrary.” MCC Outdoor,
LLC v. Town of Franklinton Bd. of Comm’rs, 169 N.C. App. 809, 811, 610 S.E.2d 794,
796, disc. review denied, 359 N.C. 634, 616 S.E.2d 540 (2005). The superior court’s
order affirming the Board’s denial of Petitioners’ application is reversed.
This matter is remanded with instructions to the superior court to further
remand to the Board to approve Petitioners’ application. Upon remand, the Board
may hear and require reasonable terms for the Petitioners to comply with the
development standards, including Petitioners securing any required approvals of
other local, state, and federal authorities’ and agencies’ permits required to operate
the solar array energy farm. It is so ordered.
REVERSED AND REMANDED.
Judges CALABRIA and DAVIS concur.
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