Zoning – Use Permit – Solar Farm – Former Golf Course

Ecoplexus, Inc. v. County of Currituck (Lawyers Weekly No. 011-383-17, 19 pp.) (John Tyson, J.) Appealed from Currituck County Superior Court (Jerry Tillett, J.) N.C. App.

Holding: Generalized fears and the drainage problems of a golf course that used to operate on petitioners’ land were insufficient to overcome petitioners’ showing that they met the requirements for a use permit for their proposed solar farm.

We reverse the superior court’s decision to uphold respondents’ denial of the petition.

The respondent Board of Commissioners found the proposed solar energy farm violated county Policy ID9, which states, “Currituck County shall not support the exploration or development of ENERGY PRODUCING FACILITIES within its jurisdiction including, but not limited to, oil and natural gas wells, and associated staging, transportation, refinement, processing or on-shore service and support facilities.”

While a solar farm could be considered an “energy producing facility,” the examples listed in ID9 –  “oil and natural gas wells and associated staging, transportation, refinement, processing or on-shore service and support facilities” – are distinctly different from a solar energy farm, which is clearly a form of “alternative energy,” as encouraged by county Policy ID1.

Without competent, material, and substantial evidence to overcome petitioners’ prima facie showing to support its findings, it appears the Board relied on generalized lay concerns, speculation, and mere expression of opinion and improperly denied petitioners’ use permit application after petitioners had made a prima facie showing of entitlement to the use permit.

Reversed and remanded.