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LLC v. Robeson County

Court of Appeals of North Carolina

June 6, 2017

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

          Heard in the Court of Appeals 26 April 2017

         Appeal by petitioners from order entered 11 March 2016 by Judge James Gregory Bell in Robeson County Superior Court. No. 15 CVS 3299

          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

         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 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 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 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 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

          Jurisdiction lies in this Court from final order of the superior court pursuant to N.C. Gen. ...

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