Case Law Update – Solar Farms (Again), the Prima Facie Case (Again), and Other Fun Facts (Again)

Yet another Court of Appeals case, Ecoplexus v. Currituck County, examined the denial of a solar farm and applied the same principles as in Dellinger v. Lincoln County and Innovative 55 v. Robeson County, but with some interesting twists.

Facts

Ecoplexus arises from Currituck County, a county that is now widely known as, well, I’ll just say it: anti-solar and anti-renewable energy.

In this hostile environment, Ecoplexus applied for a special use permit (SUP) to develop a solar farm on a former golf course. Three of the four SUP standards were the same as we always see (won’t harm health and safety; won’t harm adjoining property values; is harmonious with the area).  The fourth standard related to having adequate public facilities to serve the development.

Ecoplexus introduced engineer Tommy Cleveland, whose testimony has been cited by previous courts in finding that solar farms are just not material dangers to public health and safety. It also introduced Rich Kirkland whose matched pair analyses have been cited by at least three previous Court of Appeals panels as adequate to establish that a use will not harm the value of adjoining properties (and two of those opinions involved solar farms).  Additionally, a licensed engineer testified in detail about drainage and runoff.

Opponents hired Herb Eckerlin and Ron Heiniger, two former professors from NC State. Eckerlin expressed opinions about N.C. tax policies, energy prices in Germany and California and the economic value of solar photovoltaic facilities.  He also said it was his opinion that the types of panels listed in the application might not be the kind of panel ultimately used.

Ron Heiniger presented no tests or data but offered his opinion about problems with stormwater runoff carrying nutrients and herbicides.

A certified appraiser also testified for the opponents and claimed, essentially, that Mr. Kirkland’s market impact analysis (that studied numerous solar farms in numerous areas) was not good enough. But he offered no data of his own.  Other witnesses expressed what are called “generalized fears.”

Court’s Analysis

Once again, the Court (through the pen of Judge John Tyson) analyzed this case through the lens of the prima facie case and whether opponents’ testimony was competent and substantial.

The Court reviewed all of the studies presented by the applicant and found that they were, in fact, more than sufficient to establish a prima facie case.  It then discussed why the testimony presented by opponents was either speculative and generalized and therefore “incompetent” or, as in the case of their appraiser, not based on data or studies and therefore not substantial.

The Court also took issue with the county’s order, which only considered evidence presented by opponents and not by the applicant.

Accordingly, the matter was remanded for approval.

Other Commentary That You Won’t Read Anywhere Else

First, and of greatest interest to me, is that landowner Currituck Sunshine Farms, LLC – one of the petitioners – is owned by economist James Owens, former CEO of Caterpillar, Inc., the world’s largest manufacturer of construction and mining equipment, diesel and natural gas engines and industrial gas turbines. He is also the brother of David Owens, the guru of land use law in North Carolina and professor at the UNC School of Government.

Second, the Ecoplexus opinion elevates even further the importance of determining whether an applicant met its prima facie case (“The Board’s decision must include and be based upon all of the Petitioners’ evidence, or lack thereof, to show a prima facie case.  The denial cannot be based on evidence solely presented by the opponents to the solar farm.”)

And third, Professors Eckerlin and Heiniger, I have discovered, are philosophically opposed to solar farms, and we’ll be seeing them around the state on a more regular basis. However, they won’t be doing so saying they represent N.C. State, thanks to a letter from the university informing them that they cannot say that they speak for or represent the university on these matters.

Both of them testified against a solar farm in a Nash County case last October (that I’m now handling in litigation) and against a solar facility in Iredell County where I cross-examined them the second night of testimony last December 21, two days after the Ecoplexus case was published. (I went to the Iredell hearing with copies of the Nash County Order, which specifically found that their testimony was based upon both speculation and conjecture, and copies of the Ecoplexus opinion).

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