ECOPLEXUS INC., FRESH AIR ENERGY II, LLC and CURRITUCK SUNSHINE FARM, LLC, Petitioners,
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.
in the Court of Appeals 15 November 2017.
by petitioners from order entered 23 March 2017 by Judge
Jerry R. Tillett in Currituck County No. 16 CVS 203 Superior
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
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.
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.
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.
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.
Evidence Presented by Petitioners
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.
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
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.
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
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.
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.
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.
Evidence Presented by Respondents
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.
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.
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.
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.
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.
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 ...