in the Court of Appeals 26 April 2017
by petitioners from order entered 11 March 2016 by Judge
James Gregory Bell in Robeson County Superior Court. No. 15
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
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.
Proposed Solar Farm in Robeson County
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
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.
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 Planning Board
unanimously recommended to the Commissioners that FLS
Energy's CUP application be approved.
October and November 2015, the Commissioners held two
quasi-judicial hearings to determine whether to grant FLS
Energy's CUP application.
Testimony Presented to the Commissioners by FLS Energy
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.
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 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.
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.
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
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 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
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.
Testimony Presented by Solar Farm Opponents
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
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 was concerned about the CUP because
other solar farms he had seen had only small bushes for
landscaping and "were not beautiful at all."
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.
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.
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
Jurisdiction lies in this Court from final order of the
superior court pursuant to N.C. Gen. ...