Ecoplexus Inc. v. Cty. of CurrituckÂ
257 N.C. App. 9
| N.C. Ct. App. | 2017Background
- Petitioners (Ecoplexus, Fresh Air Energy II, Currituck Sunshine Farm) sought a use permit to convert a vacant, former golf course in an Agricultural (AG) zoning district into a solar array farm; the UDO permits solar arrays in AG subject to a use permit.
- County planning staff and the Currituck Planning Board unanimously recommended approval, finding the application met UDO Use Permit Review Standards (safety, harmony with area, conformity with Land Use Plan).
- Petitioners presented expert testimony on panel safety, wind resistance, drainage plans, landscaping buffers, and appraisals showing little or no adverse effect on surrounding property values.
- Opponents and intervenors presented lay and expert testimony raising concerns about drainage/retention ponds, herbicide use, property-value impacts, and characterizing solar farms as industrial or incompatible with the Land Use Plan.
- The Board denied the permit, finding the project would (1) endanger public health or safety (drainage/fill/herbicides), (2) not be in harmony with the area (conflict with highest-and-best-use testimony), and (3) not conform to the 2006 Land Use Plan (policies opposing energy-producing facilities).
- The superior court affirmed the Board; the Court of Appeals reversed, holding Petitioners made a prima facie showing and the Board’s denial was unsupported by competent, material, substantial evidence.
Issues
| Issue | Petitioner's Argument | Respondent's Argument | Held |
|---|---|---|---|
| Whether Petitioners made a prima facie showing entitling them to a use permit under the UDO standards | Petitioners produced competent, material, substantial evidence on safety, drainage plans, buffers, and no negative effect on adjacent property values | Opponents argued drainage, chemical use, property-value and compatibility concerns defeat the prima facie case | Held: Petitioners made a prima facie showing; evidence was sufficient under UDO standards |
| Whether opponents presented competent, substantial, material evidence to rebut the prima facie showing | N/A (Petitioners argue opponents failed to rebut) | Opponents relied on lay testimony and some expert opinion to show health/safety and harmony problems | Held: Opponents' evidence was largely speculative or lay opinion and did not constitute competent, material, substantial evidence to rebut the prima facie showing |
| Whether the Board properly relied on Land Use Plan policies to deny the permit (i.e., conformity) | Petitioners argued the project fits Full Service sub-area policies and alternative energy is expressly supported elsewhere in the Plan | Board relied on Policy ID9 (oppose energy-producing facilities) and other policies to find nonconformity | Held: Board misread/conflicted with Plan; prior legislative support for alternative energy and Planning Board recommendations undermined the Board's nonconformity finding |
| Whether the Board's denial was arbitrary and capricious / unsupported by the whole record | Petitioners argued denial was arbitrary because it ignored or contradicted record evidence and relied on speculation | Board maintained concerns and factual findings as basis for denial | Held: Denial was arbitrary/unsupported by competent substantial evidence and must be set aside; remand to approve permit subject to reasonable conditions |
Key Cases Cited
- Sun Suites Holdings, LLC v. Bd. of Alderman of Town of Garner, 139 N.C. App. 269, 533 S.E.2d 525 (recognizing board's quasi‑judicial role on conditional use permits)
- Howard v. City of Kinston, 148 N.C. App. 238, 558 S.E.2d 221 (applicant makes prima facie showing with competent, material, substantial evidence)
- Woodhouse v. Bd. of Comm'rs of Town of Nags Head, 299 N.C. 211, 261 S.E.2d 882 (applicant need not negate every objection; speculative objections insufficient)
- Overton v. Camden Cty., 155 N.C. App. 391, 574 S.E.2d 157 (scope of superior court review of quasi‑judicial board decisions)
- Blair Invs., LLC v. Roanoke Rapids City Council, 231 N.C. App. 318, 752 S.E.2d 524 (legislative zoning determinations carry weight; opponents must produce competent evidence to overcome)
- MCC Outdoor, LLC v. Town of Franklinton Bd. of Comm'rs, 169 N.C. App. 809, 610 S.E.2d 794 (board action unsupported by competent, substantial evidence is arbitrary and must be set aside)