253 N.C. App. 714
N.C. Ct. App.2017Background
- FLS Energy (and subsidiary Innovative 55) sought a conditional use permit (CUP) to build a 40‑acre solar farm on RA‑zoned farmland in Robeson County; the Planning Board unanimously recommended approval after imposing conditions.
- Site plan complied with ordinance setback and landscaping requirements; FLS presented expert testimony on safety, minimal traffic, landscaping buffers, and lack of negative impact on neighboring property values.
- Three nearby residents (including a local school board member) testified in opposition with lay, non‑expert concerns (safety, aesthetics, property values) and presented a petition signed by 116 people.
- The Robeson County Board of Commissioners held quasi‑judicial hearings and denied the CUP, finding the project would injure use/enjoyment of nearby property, impede orderly development, affect property values, and not be in harmony with the neighborhood.
- The superior court affirmed the Commissioners; the Court of Appeals reviewed de novo whether competent, material, and substantial evidence supported the denial and whether FLS had made a prima facie showing entitling it to the CUP.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FLS made a prima facie showing of compliance with the ordinance to entitle it to a CUP | FLS produced competent, material, substantial evidence and met specific and general ordinance requirements (site plan, experts on safety, traffic, landscaping, and property values) | Commissioners relied on neighborhood opposition and denied CUP | Held for FLS: applicant met burden of production; Planning Board correctly recommended approval |
| Whether opponents presented competent evidence to rebut prima facie showing | FLS: opponents offered only speculative, lay opinions and a petition, not admissible expert proof | Opponents: community testimony and petition showed adverse impacts (health, property values, aesthetics, traffic) | Held for FLS: opponents’ lay and speculative testimony/petition were not competent, material, substantial evidence to justify denial |
| Whether denial was based on grounds authorized by the ordinance | FLS: denial must be supported by ordinance criteria and substantial evidence; inclusion of public utility in RA indicates compatibility | Commissioners: found harms under ordinance criteria (injury to use/enjoyment, property values, harmony) | Held: denial was not grounded in competent evidence required by ordinance; inclusion of public utility implies legislative finding of compatibility |
| Proper remedy when denial lacks substantial evidence | FLS: remand with instruction to grant CUP | County: affirm denial | Held: reversal of superior court; remand to superior court with instructions to remand to Commissioners to grant CUP |
Key Cases Cited
- Coastal Ready‑Mix Concrete Co. v. Bd. of Comm’rs of Town of Nags Head, 299 N.C. 620 (review role of superior court and standards for agency review)
- Howard v. City of Kinston, 148 N.C. App. 238 (burden shift after applicant makes prima facie showing for CUP)
- Woodhouse v. Bd. of Comm’rs of Nags Head, 299 N.C. 211 (applicant need not negate every possible objection; inclusion in ordinance indicates harmony)
- MCC Outdoor, LLC v. Town of Franklinton Bd. of Comm’rs, 169 N.C. App. 809 (generalized community objections insufficient to deny CUP)
- Blair Invs., LLC v. Roanoke Rapids City Council, 231 N.C. App. 318 (lay ‘‘eyesore’’ testimony incompetent to support denial)
- Am. Towers, Inc. v. Town of Morrisville, 222 N.C. App. 638 (review of substantial evidence as conclusion of law)