Posted by: Patricia Salkin | September 25, 2019

NC Appeals Court Holds Commissioners Participation in Conditional Use Permit Application Hearing Constituted a Violation of Due Process Rights

This post was authored by Matthew Loeser, Esq.

Petitioners contracted with Strata Solar, LLC to lease a portion of their property for the installation of a solar farm. Strata applied for a conditional use permit, which the Board denied. On appeal, the superior court concluded the Board did not make sufficient findings of fact concerning the impact of the proposed solar farm on surrounding property values, and remanded. After remand, the superior court affirmed the Board’s decision. The superior court’s order was then reversed and remanded the matter for further proceedings. On remand, the superior court ultimately affirmed, holding the Intervenors had presented competent, material, and substantial evidence to rebut Petitioner’s prima facie case and the Board’s decision to deny the application for the conditional use permit was not arbitrary and capricious.

On appeal, Petitioners first contended the superior court erred by holding their due process rights to an impartial hearing were not prejudiced by the participation, advocacy, and vote by Commissioner Permenter. The record before the court indicated Permenter’s bias based upon his actively opposing this specific conditional use application and appeal in the past, committing money to the cause of preventing them from obtaining the conditional use permit, and openly communicating his opposition to others. In response, the Intervenors claimed that Permenter’s bias, and his refusal to recuse in light of a filed motion, was a harmless error due to the Board’s vote being 4-1 to deny the Dellingers’ petition. Here, however, the record reflected that at the relevant Board meeting and while sitting on the Board hearing the matter, Permenter advocated and presented ten pages worth of his “condensed evidence” in an attempt to rebut Petitioners’ prima facie case. The court found Permenter’s biased recitation of his “condensed evidence” could have influenced the votes of the two other commissioners who also voted against issuing the permit after his presentation, and was therefore a sufficient basis to reverse and remand.

The court next noted that the Lincoln County Unified Development Ordinance requires an applicant to meet four conditions to be issued a conditional use permit. As the court determined these conditions were met, the remaining question was whether the Intervenors produced sufficient evidence contra to rebut Petitioners’ prima facie showing. The court found that the admitted opinions and reports of the expert appraisers were misconstrued or ignored. Specifically, the appraisers for Petitioners and for Intervenors all concluded in their written reports that the presence of a solar farm did not affect the value of homes valued in the range of $220,000.00 to $240,000.00. Conversely, Fred Beck, a certified real estate appraiser, testified that the proposed solar farm would impact property values. The court found that without specific, competent evidence to support Mr. Beck’s generalized fears, this evidence failed to rebut Petitioner’s prima facie showing. Accordingly, the court reversed the trial court’s order and remanded the matter for issuance of Petitioners’ conditional use permit.

Dellinger v. Lincoln County, 2019 WL 3115211 (NC App. 7/16/2019)

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