Innovative 55, LLC v. Robeson County

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA16-1101

Filed: 6 June 2017

Robeson County, No. 15 CVS 3299

INNOVATIVE 55, LLC and FLS ENERGY, INC., Petitioners,

v.

ROBESON COUNTY and the ROBESON COUNTY BOARD OF
COMMISSIONERS, Respondents.

Appeal by petitioners from order entered 11 March 2016 by Judge James

Gregory Bell in Robeson County Superior Court. Heard in the Court of Appeals 26

April 2017.

Smith Moore Leatherwood LLP, by Colin J. Tarrant and Elizabeth Brooks
Scherer, for petitioner-appellants.

Manning Fulton & Skinner, P.A., by J. Whitfield Gibson and Robeson County
Attorney Patrick A. Pait, for respondent-appellees.

TYSON, Judge.

FLS Energy, Inc. and its subsidiary, Innovative 55, LLC (collectively, “FLS

Energy”) appeal from the superior court’s order affirming the decision of the

Robeson County Board of Commissioners (“the Commissioners”) to deny their

application for a conditional use permit (“CUP”) to construct a solar farm. We

reverse and remand.

I. Background
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A. Proposed Solar Farm in Robeson County

In July 2015, FLS Energy submitted an application to the Robeson County

Planning and Zoning Board (“the Planning Board”) and sought a CUP to construct

and operate a solar panel facility on farmland situated in Robeson County. In 2015,

Charles and Randall Andrews entered into a lease with FLS Energy to permit FLS

Energy to build and operate a solar panel facility on forty acres of their 54.37-acre

parcel.

The proposed site is zoned Residential Agricultural (“RA”) under the Robeson

County Zoning Ordinance (“the Ordinance”). Uses permitted by right in an RA

zoned district include: (1) low-density, single-family and mobile home residences,

and (2) all agricultural and horticultural uses. Additional specific uses are

permitted on RA zoned property, if the permit applicant complies with certain

additional conditions imposed by the Ordinance. “Public works and public utility

facilities” are two approved conditional uses for properties zoned RA.

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] [C]ounty.” Subject to stated conditions, not relevant to this appeal, the

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Planning Board unanimously recommended to the Commissioners that FLS

Energy’s CUP application be approved.

In October and November 2015, the Commissioners held two quasi-judicial

hearings to determine whether to grant FLS Energy’s CUP application.

B. Testimony Presented to the Commissioners by FLS Energy

Tommy Cleveland, an expert in solar farms at North Carolina State

University’s Clean Energy Technology Center, testified regarding the design and

operation of solar energy systems. Mr. Cleveland asserted evidence shows solar

farms are safe for both the short and long-term. Solar panels are constructed with

glass and aluminum components, and do not contain any toxic components. Solar

panels have operated in close proximity to population areas for fifty years without

reported negative consequences. Mr. Cleveland opined the project would pose no

danger to the surrounding community’s health, safety, or general welfare.

Gregory Hoffman, a licensed professional engineer who is certified in erosion

and sediment control, testified by affidavit regarding the project’s design and

operation. He explained solar farms generally only require weekly maintenance

visits, and the project would generate “virtually no traffic.” The solar panels are

less than ten feet tall at their highest points, and other proposed structures on the

site would not exceed twenty-five feet. A six-foot high security fence was proposed

to enclose and secure the solar farm. Mr. Hoffman opined that the project would

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not negatively impact the character of the surrounding area, public health, safety,

or traffic, and the use of the property as a solar farm would be in harmony with the

surrounding area.

Landscape architect Stephen Johnson, who is certified by the American

Society of Landscape Architects, testified regarding FLS Energy’s extensive

landscaping plans for the project. During meetings with nearby owners and

community members and after receiving their comments, FLS Energy had revised

its original site plan to increase landscape buffering by thirty percent. FLS Energy

had committed to spend over $65,000.00 to landscape the buffer, which included

professional maintenance of the landscaping. Mr. Johnson explained how trees and

vegetation would be planted to conceal the solar farm from view of adjoining

properties.

Rich Kirkland, a licensed and certified appraiser, testified by affidavit

regarding the project’s financial impact on the surrounding neighborhood. Mr.

Kirkland prepared a property impact analysis, which was based upon a comparative

study of the property impacts of over twenty other existing solar farms.

He opined solar farms do not negatively impact the value of adjacent and

nearby properties. He testified that some people in RA zoned properties regard

having a solar farm on adjacent property as a positive. He noted that Realtors®

and developers had stated, “A solar farm is better than a turkey farm,” because a

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solar farm produces no noise, odors, or traffic. Mr. Kirkland opined that the solar

farm would not decrease neighborhood property values, and would not be injurious

to the use and enjoyment of other neighboring properties.

Finally, Charles Andrews, one of the property owners, testified the project

would cause their property taxes to increase from $2,500 to approximately

$100,000.00 per year, if the solar farm was approved, and would benefit the

surrounding community.

C. Testimony Presented by Solar Farm Opponents

Three individuals testified in opposition of the issuance of the CUP for the

solar farm. Ray Oxendine lives in Maxton, North Carolina and testified that

members of his extended family live adjacent to the site of the proposed project. Mr.

Oxendine had seen other solar farms and considered them to be unattractive. He

questioned whether solar farms would be safe to live near fifty years from now and

asked the Commissioners to deny the CUP because some people in the community

opposed it.

Louis Oxendine, a member of the community who owns nearby property, was

concerned that the solar farm would be located across the street from an older

church and the site where the Croatan Indian School, established in 1887, had once

stood. He felt the property across the street was a “historical spot.” Mr. Oxendine

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was concerned about the CUP because other solar farms he had seen had only small

bushes for landscaping and “were not beautiful at all.”

Dr. Jo Ann Lowery, a Robeson County school board member and an adjacent

property owner, also appeared and testified in opposition to issuance of the CUP for

the solar farm. She produced a petition, purportedly in opposition to the

construction of the solar farm, signed by 116 community members. Dr. Lowery was

not convinced, based upon her own research, that solar farms were safe. She

recognized and admitted she was not an expert in the safety of solar farms.

On 2 November 2015, the Commissioners voted to deny FLS Energy’s CUP

request. The Commissioners specifically found the solar farm: (1) would be

injurious to the use and enjoyment of other property in the immediate vicinity; (2)

would impede the normal and orderly development and improvement of the

surrounding property for uses permitted; (3) would affect property values within the

immediate neighborhood; and, (4) would not be “in harmony” with the surrounding

neighborhood.

FLS petitioned the Robeson County Superior Court for review of the

Commissioner’s decision by writ of certiorari pursuant to the provisions of N.C. Gen.

Stat. § 160A-393. On 11 March 2016, the superior court entered an order, which

upheld the Commissioners’ decision. FLS Energy appeals.

II. Jurisdiction

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Jurisdiction lies in this Court from final order of the superior court pursuant

to N.C. Gen. Stat. § 7A-27(b) (2015).

III. Issues

FLS Energy argues the superior court erred by affirming the Commissioners’

decision because: (1) competent, material, and substantial evidence does not

support the Commissioners’ denial of the CUP, after FLS Energy established a

prima facie case that the permit should have been granted; (2) the opponents of the

solar farm presented only speculative, generalized, non-expert testimony in

opposition to the project; and, (3) the Commissioners improperly denied FLS

Energy’s permit request based upon grounds not expressly stated in or allowed by

the Ordinance.

IV. Standard of Review

“‘A legislative body such as the Board [of Commissioners], 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); see also

Dellinger v. Lincoln Cty., __ N.C. App. __, __, 789 S.E.2d 21, 26, disc. review denied,

__ N.C. __, __ S.E.2d __ (2016).

The Commissioners’ decision on the issuance of the CUP “shall be subject to

review of the superior court in the nature of certiorari.” N.C. Gen. Stat. § 160A-

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381(c) (2015). In reviewing the Commissioners’ decision, “the superior court sits as

an appellate court, and not as a trier of facts.” Tate Terrace Realty Inv’rs, Inc. v.

Currituck Cty., 127 N.C. App. 212, 217, 488 S.E.2d 845, 848 (citation omitted), disc.

review denied, 347 N.C. 409, 496 S.E.2d 394 (1997).

The role of the superior court in reviewing the decision of a Board of

Commissioners, sitting as a quasi-judicial body, is as follows:

(1) Reviewing the record for errors in law,

(2) Insuring that procedures specified by law in both
statute and ordinance are followed,

(3) Insuring that appropriate due process rights of a
petitioner are protected including the right to offer
evidence, cross-examine witnesses, and inspect
documents,

(4) Insuring that decisions of town boards are supported
by competent, material and substantial evidence in the
whole record, and

(5) Insuring that decisions are not arbitrary and
capricious.

Coastal Ready-Mix Concrete Co., Inc. v. Bd. of Comm’rs of Town of Nags Head, 299

N.C. 620, 626, 265 S.E.2d 379, 383, reh’g denied, 300 N.C. 562, 270 S.E.2d 106

(1980).

“This Court’s task on review of the superior court’s order is twofold: (1)

determining whether the trial court exercised the appropriate scope of review and,

if appropriate, (2) deciding whether the court did so properly.” SBA, Inc. v. City of

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Asheville City Council, 141 N.C. App. 19, 23, 539 S.E.2d 18, 20 (2000) (citations and

internal quotation marks omitted).

Here, FLS Energy raises issues which require concurrent application of both

the de novo and “whole record” review. “Whether competent, material and

substantial evidence is present in the record is a conclusion of law,” which is

reviewed de novo. Am. Towers, Inc. v. Town of Morrisville, 222 N.C. App. 638, 641,

731 S.E.2d 698, 701 (2012), disc. review denied, 366 N.C. 603, 743 S.E.2d 189 (2013)

(citation omitted). Whether the Commissioners’ decision was based upon

procedures and standards set out in the Ordinance is a question of law, which is

also reviewed de novo. Ayers v. Bd. of Adjustment, 113 N.C. App. 528, 531, 439

S.E.2d 199, 201, disc. review denied, 336 N.C. 71, 445 S.E.2d 28 (1994).

“When a party challenges the sufficiency of the evidence or when the

[Commssioners’] decision is alleged to have been arbitrary and capricious, this

Court employs the whole record test.” Dellinger, __ N.C. App. at __, 789 S.E.2d at

26. “The whole record test requires the reviewing court to examine all competent

evidence (the whole record) in order to determine whether the agency decision is

supported by substantial evidence.” Id. at __, 789 S.E.2d at 26 (quoting SBA, Inc.,

141 N.C. App. at 26, 539 S.E.2d at 22).

V. Commissioners’ Denial of CUP

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FLS Energy argues the Commissioners improperly denied its CUP to

construct the solar farm. FLS Energy asserts 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 to allow the denial

of its application. We agree.

“The general rule is that a zoning ordinance, being in derogation of common

law property rights, should be construed in favor of the free use of property.” Dobo

v. Zoning Bd. of Adjustment of Wilmington, 149 N.C. App. 701, 712, 562 S.E.2d 108,

115 (2002) (Tyson, J., dissenting), rev’d per curiam, 356 N.C. 656, 576 S.E.2d 324

(2003); see also City of Sanford v. Dandy Signs, Inc., 62 N.C. App. 568, 569, 303

S.E.2d 228, 230 (1983). “Zoning regulations are not a substitute for private

restrictive covenants.” Dobo, 149 N.C. App. at 712, 562 S.E.2d at 115.

A. FLS Energy’s Prima Facie Showing of Entitlement to Permit

A solar farm is a conditional use expressly contemplated and listed for

property zoned RA under the Ordinance as a “public utility facility.” “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

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Kinston, 148 N.C. App. 238, 246, 558 S.E.2d 221, 227 (2002) (quoting SBA, Inc., 141

N.C. App. at 27, 539 S.E.2d at 22 (2000)).

“Material evidence is “[e]vidence having some logical connection with the

facts of consequence or the issues.” 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 Cty. v. Town of Southern Pines, 161

N.C. App. 625, 629, 589 S.E.2d 162, 165 (citation and quotation marks omitted).

“[The evidence] must do more than create the suspicion of the existence of the fact

to be established. It must be enough to justify, if the trial were to a jury, a refusal

to direct a verdict when the conclusion sought to be drawn from it is one of fact for

the jury.” Humble Oil & Ref. Co. v. Bd. of Aldermen, 284 N.C. 458, 471, 202 S.E.2d

129, 137 (1974) (citation, internal quotation marks, and alterations omitted).

FLS Energy’s burden to show its prima facie compliance with all

requirements and conditions of the Ordinance is a burden of production, and not a

burden of proof. Dellinger, __ N.C. App. at __, 789 S.E.2d at 30. “To 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 Nags Head, 299 N.C. 211,

219, 261 S.E.2d 882, 887-88 (1980).

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Section 17.3 of the Ordinance at issue is titled, CONDITIONAL USES, and

states:

The following uses are permitted subject to any additional
conditions imposed:

(C) Public works and public utility facilities, such as
transformer stations, water towers, and telephone
exchanges, provided: 1) such facilities are essential to the
severs [sic] of the community and no vehicles or materials
shall be stored on the premises; 2) all buildings and
apparatus shall be set back at least twenty (20) feet from
all property lines and shall be designated and landscaped
in such a way as to blend with the surrounding area.
(emphasis supplied).

Section 30 of the Ordinance provides:

No conditional use permit shall be recommended by the
Planning and Zoning Board unless such Board shall find:

A. That . . . the conditional use will not be detrimental to
or endanger the public health, safety, morals, comfort, or
general welfare;

B. That the conditional use will no[t] be injurious to the
use and enjoyment of other property in the immediate
vicinity for the purposes already permitted nor
substantially diminish and impair property values within
the neighborhood;

C. That . . . the conditional use will not impede the
normal and orderly development and improvement of the
surrounding property for uses permitted in the district;

D. That the exterior architectural appeal and functional
plan of any proposed structure will not be so at variance
with the exterior architectural appeal and functional plan
of the structures . . . in the immediate neighborhood or

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with the character of the application district as to cause a
substantial depreciation in the property values with[in]
the neighborhood;

E. That adequate utilities, access roads, drainage and/or
other necessary facilities have been or are being provided;

F. That adequate measures have been or will be taken to
provide ingress and egress to minimize traffic in the
public streets;

G. That the conditional use shall, in all other respects,
conform to the applicable regulations of the district in
which it is located . . . .

The Planning Board unanimously found that FLS Energy had clearly met its

burden of production under Section 17.3 of the Ordinance. It produced a site plan

and competent testimony which complied with all of the specific CUP requirements

set forth in that section. FLS Energy presented a prima facie entitlement to issue

the CUP before the Commissioners.

FLS Energy also met its burden of production by presenting competent,

material, and substantial evidence before the Commissioners to show compliance

with the more general requirements set forth in Section 30 of the Ordinance. See

Howard, 148 N.C. App. at 246, 558 S.E.2d at 227.

FLS Energy presented material and substantial expert testimony from three

witnesses to show: (1) solar farms are safe in both the short and long-term for the

environment and surrounding community; (2) the project would generate “ virtually

no traffic;” (3) due to the proposed set-backs and landscaping, the project would not

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impact the character of the surrounding area; and, (4) the project would not

negatively affect the value of adjacent and nearby properties or be injurious to the

use and enjoyment of other neighboring properties.

B. Burden Shifts to Opponents to Rebut FLS Energy’s Prima Facie Showing

Once an applicant has produced competent, material, and substantial

evidence tending to establish compliance with all applicable ordinance requirements

for the issuance of a CUP, “[t]he burden of establishing that the approval of a [CUP]

would endanger the public health, safety, and welfare falls upon those who oppose

the issuance of the permit.” Id. After a prima facie showing, “[d]enial of a [CUP]

must [also] be based upon findings which are supported by competent, material, and

substantial evidence appearing in the record.” Id. (emphasis supplied).

The Commissioners’ denial of the CUP appears to have been wholly based

upon the three witnesses’ testimonies and a signed petition in opposition to the

CUP. Based upon their testimonies, the Commissioners concluded:

1. That the conditional use permit request would be
injurious to the use and enjoyment of other property
in the immediate vicinity for the purpose already
permitted.

2. That the conditional use permit would impede the
normal and orderly development and improvement of
the surrounding property for uses permitted in the
district.

3. The Board was concerned that the conditional use
permit would affect property values within the

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immediate neighborhood.

4. That the conditional use permit would not be in
harmony with the area in which it is to be located.

Speculative and general lay opinions and bare or vague assertions do not

constitute competent evidence before the Commissioners to overcome the applicant’s

prima facie entitlement to the CUP. MCC Outdoor, LLC v. Town of Franklinton Bd.

of Comm’rs, 169 N.C. App. 809, 815, 610 S.E.2d 794, 798, disc. review denied, 359

N.C. 634, 616 SE.2d 540 (2005).

[The] denial of a conditional use permit based solely upon
the generalized objections and concerns of neighboring
community members is impermissible. 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).

The Board found that it “heard testimony from several neighbors who argued

that the requested use would substantially diminish or impair property values

within the neighborhood” and “would increase traffic congestion in the public

streets.” The record does not show any of the three witnesses in opposition to the

CUP presented any competent evidence pertaining to these two issues.

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Substantial and material evidence in the record pertaining to these issues

was presented by FLS Energy’s experts and lay witnesses, who testified the solar

farm would not negatively impact property values of other properties within the

neighborhood, and would produce “virtually no traffic.” Furthermore, our statutes

specifically provide that lay witness testimony is not considered “competent

evidence” to show either “the use of property in a particular way would affect the

value of other property,” or “the increase in vehicular traffic resulting from a

proposed development would pose a danger to the public safety.” N.C. Gen. Stat §

160A-393(k)(3)(a)-(b) (2015); N.C. Gen. Stat. § 153A-349(a) (2015) .

Opponents to the solar farm testified to unsupported and highly speculative

claims about their unsubstantiated fears of solar farms and their possible dangers.

Opposing contentions included assertions that the solar panels contain “poison,”

might be connected to “dead birds in California,” might produce harmful radiation,

and might be hit by hurricanes or tornadoes. The opponents produced no expert

testimony or other material and substantial evidence in support of their claims.

A lay witness’s testimony regarding “[m]atters about which only expert

testimony would generally be admissible under the rules of evidence” is not

competent evidence. N.C. Gen. Stat. § 160A-393(k)(3)(c) (2015); N.C. Gen. Stat. §

153A-349(a). The lay testimony regarding the purported safety of solar farms is a

matter requiring scientific, technical or other specialized or personal knowledge,

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normally outside the experience of an ordinary person. The opponents’ testimonies

on this topic did not constitute “competent evidence” to rebut FLS Energy’s prima

facie showing to deny the CUP.

FLS Energy presented testimony from multiple expert witnesses tending to

show solar farms do not materially endanger the environment or the public’s health

or safety. The opponents’ testimony about health and safety concerns of solar farms

is an example of the “generalized and speculative fears,” which cannot rebut a

prima facie showing to support denial of a CUP. Howard, 148 N.C. App. at 246, 558

S.E.2d at 227.

The testimony of solar farm opponents that the final project as constructed

would be an “eyesore,” based upon other solar farms they have seen, is also not

competent evidence to support the denial of the solar farm. See Blair Invs., LLC v.

Roanoke Rapids City Council, 231 N.C. App. 318, 324-25, 752 S.E.2d 524, 529-30

(2013) (statements that a cellphone tower was an “eyesore” and general opposition

to the project were rejected as incompetent opinion testimony and did not support

denial of the CUP).

Furthermore, “[t]he inclusion of the particular use in the ordinance as one

which is permitted under certain conditions, is equivalent to a legislative finding

that the prescribed use is one which is in harmony with the other uses permitted in

the district.” Woodhouse, 299 N.C. at 216, 261 S.E.2d at 886 (citation omitted)

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(emphasis supplied). The Ordinance specifically permits “public works and public

utility facilities” as conditional uses in the RA zoning district.

Mr. Oxendine’s concern that the proposed solar farm is near a “historical

spot” also does not support denial of the CUP. Mr. Oxendine was primarily

concerned that children visiting these historical church and former school sites

would see the solar farm. Whether a proposed use can “be seen from a particular

location is simply irrelevant” to whether it is compatible with the neighborhood.

MCC Outdoor, 169 N.C. App. at 814, 610 S.E.2d at 798.

Our Legislature has determined the public policy of our State encourages

solar equipment and facilities and the use of solar energy. See, e.g., N.C. Gen. Stat.

§ 105-277(g) (2015) (providing reduced tax rates for buildings equipped with solar

energy heating and/or cooling systems). The public policy of our State supports

children learning about clean, renewable energy, which is beneficial to all North

Carolina citizens.

Finally, the petition that was presented to the Board, purportedly signed by

citizens of the surrounding community is not competent evidence to overcome FLS

Energy’s prima facie showing to entitlement to the CUP. See Humane Soc’y of

Moore Cty., Inc., 161 N.C. App. at 631-32, 589 S.E.2d at 167 (recognizing a public

poll or “survey cannot be used as competent, material evidence as the answers are

simply speculative comments from neighborhood residents”). The preamble to the

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petition merely states, “We, the undersigned, petition Commissioners to deny the

request for a Conditional Use Permit to allow for the establishment of a Solar Farm

in a Residential Agricultural District owned by Randal [sic] and Charles D.

Andrews . . . .”

The record before us demonstrates FLS Energy’s CUP was impermissibly

denied “based solely upon the generalized objections and concerns of neighboring

community members.” Blair Investments, 231 N.C. App. at 324, 752 S.E.2d at 529.

The opposition was not based upon any specific or supported testimony, or

substantial and material evidence, facts, or data. The Board’s denial of FLS

Energy’s prima facie entitlement to the CUP was clearly based upon testimonies

and a non-specific signed petition “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.

VI. Conclusion

Based upon all the evidence and testimony presented, FLS Energy produced

a prima facie showing of entitlement to support issuing the CUP the Planning

Board had unanimously recommended for approval.

After the quasi-judicial hearing, the Commissioners’ denial of FLS Energy’s

application for a CUP is not supported by substantial, competent, and material

evidence. “When a Board [of Commissioners’] action is unsupported by competent

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substantial evidence, such action must be set aside for it is arbitrary.” MCC

Outdoor, 169 N.C. App. at 811, 610 S.E.2d at 796 (citation omitted). The trial

court’s order affirming the denial of FLS Energy’s CUP application, when the

Board’s denial was not based on sufficient evidence, is reversed. See id. at 815, 610

S.E.2d at 798.

This matter is remanded to the superior court for further remand to the

Commissioners with instructions to grant FLS Energy’s application and issue a

CUP to construct and operate a solar farm on their proposed site. It is so ordered.

REVERSED AND REMANDED.

Chief Judge MCGEE and Judge CALABRIA concur.

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