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Ecoplexus Inc. v. County of Currituck

Court of Appeals of North Carolina

December 19, 2017

ECOPLEXUS INC., FRESH AIR ENERGY II, LLC and CURRITUCK SUNSHINE FARM, LLC, Petitioners,
v.
COUNTY OF CURRITUCK, BOARD OF COMMISSIONERS, and DAVID L. GRIGGS, in his official capacity as Chairman of the Board of Commissioners, and O.VANCE AYDLETT, JR., S. PAUL O'NEAL, MIKE D. HALL, MIKE H. PAYMENT, PAUL M. BEAUMONT, and MARION GILBERT, in their official capacities as members of the Board of Commissioners of the County of Currituck, Respondents, and STEVEN P. FENTRESS, DONALD LEON PROFFITT, GAIL LYNN PROFFITT, JAMES J. WIERZBICKI, MARGARET GERALDINE NEWSOME, DAVID L. RICE, LINDA L. RICE, RANDY L. MILLS, ROY W. TATE, KATHY C. TATE, FIDEL C. ESCOBAR, LAURA DARDEN and MICHELLE LYNN CUNNINGHAM, Intervenor-Respondents.

          Heard in the Court of Appeals 15 November 2017.

         Appeal by petitioners from order entered 23 March 2017 by Judge Jerry R. Tillett in Currituck County No. 16 CVS 203 Superior Court.

          Tuggle Duggins P.A., by Michael S. Fox, Benjamin P. Hintze and Jaye E. Bingham-Hinch, for petitioner-appellants.

          Currituck County Attorney Donald I. McRee, Jr. for respondent-appellees.

          TYSON, Judge.

         Ecoplexus, Inc., Fresh Air Energy II, LLC, and Currituck Sunshine Farm, LLC ("Petitioners") appeal from an order affirming the decision of the Currituck County Board of Commissioners ("the Board") to deny Petitioners' application for a use permit to construct a solar energy array farm. We reverse and remand.

         I. Background

         Petitioners Currituck Sunshine Farm, LLC ("Currituck") and Ecoplexus, Inc. ("Ecoplexus") applied for a use permit on 11 December 2015, to construct a solar array farm on the vacant property that was previously used as Goose Creek Golf Course ("the property"), located at 6562 Caratoke Highway, Grandy, North Carolina. The golf course closed as a result of a foreclosure action in 2012 and has remained unused. Currituck owns the property, and Ecoplexus is a solar farm developer. Fresh Air Energy II, LLC ("Fresh Air") is the proposed tenant of the solar array farm to be developed.

         The property is located in an Agricultural ("AG") Zoning District. The Currituck County Unified Development Ordinance ("UDO") provides that a "solar array" is allowed as a permitted use on AG zoned land, subject to a use permit.

         The Currituck County Planning Staff and the Planning Board unanimously recommended the application for the permit to be approved, finding Petitioners' application fulfilled all the use permit review standards. On 4 April 2016, the Currituck County Board of Commissioners held a quasi-judicial hearing to consider Petitioners' use permit application.

         A. Evidence Presented by Petitioners

         Ecoplexus is a developer of solar energy farms, with projects located in five states, including ten projects within North Carolina. Nathan Rogers of Ecoplexus testified regarding the design of the proposed solar energy farm. He explained the solar panels would be arranged in rows and attached to metal racking, bringing the total height to 8 to 10 feet. To comply with the UDO's 300-foot setback requirements, the majority of the existing trees on the property would remain, with Ecoplexus filling in any gaps in the natural barrier with landscaping. Mr. Rogers opined that the solar farm would be harmonious with the surrounding properties. Concerning herbicide use, Mr. Rogers testified he preferred not to use herbicides, but did not rule out the possibility of future herbicide use.

         Tommy Cleveland, a licensed engineer specializing in solar energy in North Carolina, testified regarding the materials to be used. Solar panels are constructed of "very non-toxic" silicone-based cells, and the other components consist of glass, aluminum, and plastic. He testified the safety of these materials has been tested over the course of 25 to 30 years. Mr. Cleveland asserted there would be no emissions, and the electromagnetic field produced by the panels would be below international occupational hazard levels, and virtually non-existent at the perimeter of the property.

         Mr. Cleveland also testified solar facilities can be built to withstand hurricane force winds, and the proposed facility will be engineered to withstand winds of up to 120 mph. Because of the overall safety of solar farms, Mr. Cleveland testified there would be no negative health or safety impacts to the neighboring properties or the community from the installation of this solar energy system.

         Rich Kirkland, a certified and MAI designated appraiser, testified regarding the impact of the proposed solar farm on the valuation of the surrounding properties. Mr. Kirkland stated he has visited over 170 solar farms in North Carolina, and testified that over 90 percent of properties adjoining solar farms in North Carolina are located "where homes and fields meet, " between agricultural and residential areas.

         Regarding the aesthetics of the proposed site, Mr. Kirkland testified the 400 foot average buffer from the proposed location of the solar panels to nearby homes is greater than the 150 foot average commonly observed in other projects across North Carolina. With the large setback buffer from the homes in the area and the natural vegetative barrier, Mr. Kirkland opined the property is a harmonious location for a solar farm.

          Mr. Kirkland also conducted a "matched pair" analysis of four other solar farm projects. In those properties, he opined no effects were shown on either the sale or value of surrounding properties. Mr. Kirkland predicted a similar outcome for the proposed facility, and opined the construction of the solar farm would not negatively impact surrounding property values.

         Kim Hamby, a North Carolina licensed engineer with 20 years of experience in water management, testified regarding the surface water, impoundments, and drainage on the property. Several ponds from the golf course would be filled in to construct the solar farm. Ms. Hamby testified sufficient drainage would be provided to make up for filled ponds. The new drainage system would be installed before the ponds are filled in, and the larger existing ponds will remain along the perimeter of the property. Further, the proposed solar farm would reduce the impervious surfaces of the property and leave plenty of land to manage and absorb surface water effectively. Ms. Hamby testified the drainage plan would be submitted for review and approval by the county engineers and the North Carolina Department of Environmental Quality. Plaintiffs assert this evidence, taken together, establishes a prima facie case of entitlement to the use permit.

         B. Evidence Presented by Respondents

         Herb Eckerlin, a professor in mechanical and aerospace engineering at North Carolina State University, testified regarding the overall problems he sees with solar energy. Dr. Eckerlin expressed concern with the high cost of energy in places such as California and Germany, but stated his testimony was based upon internet research. He also took issue with the legislative decision to allow only twenty percent of the value of a solar farm to be taxed, and opined Currituck County would see very little economic or tax benefit from allowing a solar farm to be approved.

         Dr. Eckerlin opined that the actual number of panels or type of panels installed in solar farms would be different from what was stated in the application, and there was no local or state oversight available to address such problems. He believes all solar farm construction should cease until these issues are addressed.

         Ron Heiniger, a professor in the crop, soil, and environmental science department at North Carolina State University, testified regarding the holding ponds. Holding ponds are important to maintain and control nutrient runoff from the property, and protect the surrounding environment. Dr. Heiniger asserted these holding ponds were important for containing the pesticides and herbicides applied when the property was used as a golf course, and opined this same purpose would be necessary for the proposed solar farm. He testified the federal government does not allow solar farms to be located on property owned by the United States Department of Agriculture ("USDA") in North Carolina, though he conceded a solar farm would not be in harmony in a national forest or park, which is the use of the majority of USDA-owned land located in North Carolina.

         Bruce Sauter, a certified appraiser, testified regarding the highest and best use for the property. He had appraised Goose Creek Golf Course in 2012, prior to the foreclosure action, and concluded the highest and best use of the property would be single family homes. Mr. Sauter opined the proposed solar farm would not be harmonious with the surrounding residential community, but asserted that harmonious use is the same as highest and best use. He questioned Mr. Kirkland's opinions on land value, as Mr. Kirkland's evaluation did not consider properties in the eastern part of the state. Mr. Sauter opined it was too early to tell how land and home values would be affected in Currituck County by solar farms.

         Steve Fentress, a resident of Grandy Road, testified and expressed his concerns about the proposed project. He questioned whether the amount of on-site fill would be enough to fill in the ponds, and was concerned about drainage on adjoining properties as a result of filling in the ponds. Mr. Fentress argued solar farms are an industry, and should be regulated under industrial use. He also testified as to the lack of inspections at other nearby, established solar farms, and communicated the need for such inspections, especially concerning the joining of metals from the panel to the frame.

         Laura Darden, an adjoining property owner, testified regarding the current water drainage issues. One of the existing retention ponds from the defunct golf course is located near her property, and every time it rains, she states it overflows onto her property. She asserted that at least fifty percent of her property was underwater at the time of the hearing, and she was concerned ...


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