Posted by: Patricia Salkin | July 28, 2017

NC Appeals Court Holds Generalized Objections and Concerns of Neighboring Community Members were Insufficient to Support Denial of Conditional Use Permit

FLS Energy, Inc. and its subsidiary, Innovative 55, LLC appealed from the superior court’s order affirming the decision of the Robeson County Board of Commissioners to deny their application for a conditional use permit (“CUP”) to construct a solar farm. The site plan submitted with FLS Energy’s CUP application contained the setback and landscaping buffers required by the Ordinance. The Planning Board heard the CUP application and determined that FLS Energy had met the criteria for a CUP and that the project “would be in the best interests of the citizens of Robeson County.” Despite this, the Commissioners voted to deny FLS Energy’s CUP request, and the superior court upheld the Commissioners’ decision.

On appeal, FLS Energy contended it presented a prima facie showing it was entitled to issuance of a CUP under the standards and conditions of the Ordinance, and the opponents of the solar farm failed to present competent and material evidence to overcome FLS Energy’s prima facie showing. The court noted that FLS Energy’s burden to show its prima facie compliance with all requirements and conditions of the Ordinance was a burden of production, and not a burden of proof. Here, the Planning Board unanimously found that FLS Energy had met its burden of production under Section 17.3 of the Ordinance by producing a site plan and competent testimony that complied with all of the specific CUP requirements set forth in that section.

Additionally, FLS Energy presented testimony from multiple expert witnesses to show that solar farms did not materially endanger the environment or the public’s health or safety. The court found that the opponents’ lay person testimony about health and safety concerns of solar farms could not rebut a prima facie showing to support denial of a CUP, as it was merely “generalized and speculative fears.” Moreover, the testimony of solar farm opponents that the final project as constructed would be an “eyesore,” based on other solar farms they have seen, was likewise found to be not competent evidence to support the denial of the solar farm. As such, the record reflected that FLS Energy’s CUP was impermissibly denied “based solely upon the generalized objections and concerns of neighboring community members.” Accordingly, the trial court’s order affirming the denial of FLS Energy’s CUP application was reversed.

Innovative 55, Inc. v Robeson County, 801 S.E. 2d 671 (NC App. 6/6/2017)

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