- The North Carolina Court of Appeals has upheld Pender County's 2022 decision to reject a 2,300-acre solar farm.
- Appellate judges issued an unpublished opinion explaining that plaintiff Coastal Pine Solar had failed to present adequate evidence that its plans complied with local regulations.
- The North Carolina Farm Bureau had filed a brief in the case siding with the county. The Farm Bureau rejected Coastal Pine Solar's arguments against input from the proposed solar operation's farming neighbors.
The North Carolina Court of Appeals has upheld Pender County’s rejection of a 2,300-acre solar farm. An unpublished court opinion Tuesday explained that plaintiff Coastal Pine Solar failed to prove that it complied with local ordinance requirements.
To secure a special-use permit for the solar operation, Coastal Pine Solar required “production of competent, substantial, and material evidence demonstrating compliance” with Pender’s unified development ordinance, Judge Michael Stading wrote.
“Though Petitioner presented expert testimony, the Board found this testimony inadequate due to the witnesses’ lack of personal knowledge of the specific site conditions,” Stading added.
“Considering all of Petitioner’s evidence — its experts, their testimony and submissions — it remains insufficient to establish a prima facie case of conformity,” the majority opinion explained. “For instance, UDO § 3.12.2(B)(6) requires detailed evidence of ‘[e]xisting topography and all proposed changes’ along with ‘calculations to show total acreage of area to be graded or disturbed.’”
“The record contains no competent, site-specific engineering or technical data fulfilling these criteria,” Stading wrote. “While Petitioner’s appraiser mentioned topography, his report addressed only the potential effect on adjoining property values rather than providing the mandated calculations of acreage disturbance. Petitioner identifies no other record evidence — and our review reveals no other record evidence — establishing the essential, technical details required by the UDO.”
“Petitioner cannot demonstrate that it satisfied the underlying zoning standards without showing these foundational prerequisites. In other words, failing to produce the information required under section 3.12.2(B) means Petitioner did not carry its initial burden of production. Consequently, Petitioner’s assertion that ‘conformity is not really in dispute’ is unsupported,” the opinion added.
The Appeals Court also cited a lack of evidence that the solar farm demonstrated “adequacy of utilities, access roads, drainage, sanitation, and other necessary facilities.”
“Although Petitioner repeatedly asserted that it would comply with ‘all statutory and local requirements,’ it offered no specific, competent evidence explaining how these requirements would be met,” Stading wrote. “Rather than presenting definitive drainage plans, engineering reports, or other concrete documentation, Petitioner merely stated that it ‘will’ ensure compliance at some future point. Such conclusory statements fall short of the evidentiary standard imposed by the UDO.”
“[T]he Board’s denial of Petitioner’s SUP rested on competent, material, and substantial evidence, reflecting that Petitioner failed to establish a prima facie entitlement under the UDO. As a result, the decision was neither arbitrary nor capricious, and the trial court properly affirmed the Board,” Stading explained.
Judge Carolyn Thompson joined Stading’s opinion. Judge Donna Stroud supported the case’s result without endorsing Stading’s arguments. As an unpublished opinion, the case has limited value as a legal precedent.
The panel heard oral arguments in the case in October. Coastal Pine Solar asked the court to reverse a trial judge’s decision in the case. The trial court sided with Pender County commissioners, who rejected the solar operation in 2022.
The solar company met its burden to secure a county permit, lawyer Thomas Terrell argued. “An applicant who has met the burden of production automatically wins … if no contrary evidence is offered,” Terrell said. “And in this case, we don’t have any contrary evidence.”
Coastal Pine Solar also believes Pender County “really stepped outside of what its role is” in assessing the company’s permit application, Terrell argued. “What is not proper is for the county to become its own advocate — at any level, at any stage — where the county is looking for a certain outcome, which is clearly what was happening here,” he said.
“They have to be an impartial decision-maker,” he added. “Not the case — What happened here, we had the county was an aggressive prosecutor.”
John Cooke, arguing for Pender County, pointed to evidence supporting county commissioners’ decision.
“We have all this evidence from neighbors — adjoining property owners familiar with the property,” Cooke said. “It floods. It’s already flooding, and it’s going to make it worse. And the applicant has offered nothing to improve it or address it.”
“This is a massive speculative, inchoate venture and nothing more,” Cooke added.
“Neighbor after neighbor said this doesn’t fit,” he argued.
The North Carolina Farm Bureau Federation is siding with Pender County in the legal fight. The Farm Bureau filed paperwork in April to submit a friend-of-the-court brief in the case.
“Farm Bureau’s members know which tracts have the best soils for growing certain crops and how their farms absorb and drain water,” according to a motion from Farm Bureau lawyers. “Farm Bureau’s members are also keenly aware that North Carolina is losing farmland to development at an alarming rate and they frequently engage with their local leaders to help preserve the farmland on which they are so dependent.”
“Farm Bureau’s interest in this case is focused on Coastal Pine Solar, LLC’s (‘Coastal’) argument that the Superior Court erred below in concluding that Pender County’s denial of Coastal’s special use permit application was ‘supported by competent, material and substantial evidence that is contrary to Coastal Pines Solar LLC’s evidence,’” the motion continued. “To be clear, Farm Bureau does not oppose the siting and operation of solar facilities per se. However, it is concerned that adopting Coastal’s reasoning to reverse the Superior Court, would hinder the ability of farmers and landowners to effectively engage with county leaders when they are considering whether to issue special use permits for development.”
“The Record shows the farmers and landowners who spoke against Coastal’s proposed development possessed considerable knowledge about the farmland and weather in Pender County and how the development will change the way water flows off the property and into nearby waters,” Farm Bureau lawyers wrote.
The solar company filed its Appeals Court brief in the case on March 7.
“This appeal joins a long line of cases in which a local government has denied a special use permit (‘SUP’) based on nothing more than lay opinions and generalized fears,” the company’s lawyers wrote. “Time and time again, both this Court and our Supreme Court have reiterated that an applicant is entitled to such a permit when it presents competent, material, and substantial evidence on the applicable standards and no such contrary evidence exists.”
Coastal Pine Solar cited 17 state court decisions dating back to 1974 supporting its arguments. “One would think that this existing line of precedent would be enough. Yet, here we are,” according to the company’s brief.
Pender County’s lawyers responded on April 8.
“At the beginning of the evidentiary hearing, Coastal Pine Solar, LLC (‘Coastal’) produced voluminous materials unseen by the Pender County Board of Commissioners (‘Board’) or County landowners and remarked that the size of its facility ‘could be’ the ‘elephant in the room,’ while blaming Duke Energy, a company unaware of the hearing, for its size,” the county’s brief argued. “Coastal’s credibility plummeted and the Board, having the duty to ensure the hearing was fair, asked questions to discover the facts and conditions of Coastal’s massive facility.”
The proposed farm was larger than any North Carolina solar farm identified by the company’s expert. It was “nearly twenty (20) times larger than the largest solar farm found in this Court’s precedents, raising a serious policy question unencountered by this Court,” Pender County lawyers added.
“The County had resolved the policy question by designating the land on which Coastal proposes its massive facility as prime farmland and to protect farmlands, without targeting solar farms, allowing only limited non-residential special uses,” the county brief continued.
The solar farm’s application “lacked the design evidence specifically required” by county rules, Pender County argued.
“Without design evidence, County landowners produced contrary evidence by testifying to what they personally knew – the existing physical characteristics of the land where the facility was proposed, the existing character of the community, and explained the reasons the facility did not fit,” the county’s lawyers wrote. “Their evidence was competent, material, and substantial under the Rules of Evidence for the purposes it was offered and was the only competent evidence of the existing physical characteristics of the land.”
Pender County said the solar company “hatched accusations that some Board members acted improperly” and later accused the Superior Court judge of “acting improperly.” “These accusations are wrong and misplaced,” the county brief continued.