Posted by: Patricia Salkin | July 19, 2016

NC Appeals Court Reverses Denial of Conditional Use Permit for Solar Energy Facility

The Dellingers owned three tracts of real property in Denver, Lincoln County, North Carolina, which totaled approximately fifty-four acres. In May 2013, the Dellingers contracted with Strata Solar, LLC for it to lease a portion of their property for the installation and operation of a solar energy facility. On 23 July 2013, Strata Solar filed its conditional use permit application to construct a solar energy facility on a 35.25–acre portion of the land owned by the Dellingers. The Lincoln County Planning Board voted 4–4 on its recommendation to the Board of Commissioners for the conditional use permit, and the Board of Commissioners voted 3 to 1 to deny Strata Solar’s application. The Dellingers appealed.

On appeal, the Petitioners argued the superior court erred by affirming the Board’s decision and asserts Strata Solar’s application for a conditional use permit was supported by competent, substantial, and material evidence. In order for Strata Solar to make a prima facie showing of entitlement to a conditional use permit, it was required to present competent, substantial, and material evidence to meet the four conditions enumerated in the Ordinance. The Board found Strata Solar had met its “burden of production” but “found the evidence unpersuasive.” The Board denied the conditional use permit and concluded Strata Solar failed to satisfy the condition that the use would not substantially injure “the value of adjoining or abutting property.” The court found that Strata Solar’s experts provided enough evidence that the solar farm would not substantially injure the value of the adjoining property. Thus, the superior court erred by upholding the Board’s conclusion.

Petitioners next argued the Board erred by allowing Commissioner Oakes to participate in the Board’s vote on remand, because he was not on the Board when it rendered its original decision to deny issuing Strata Solar’s conditional use permit. The court found that although the addition of two new Board members had changed the membership composition of the Board from the time of the initial hearings in December 2013 to the time the Board reviewed the matter on 16 March 2015 after remand, both new Board members had an opportunity to read and review all of the evidence previously considered. Accordingly, the order of the superior court, which upheld the Board’s denial of Strata Solar’s application for a conditional use permit, was reversed and remanded.

Dellinger v Lincoln County, 20916 WL 3894687 (NC App. 7/19/2016)

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