By Carolina Journal Staff
- The legal fight over a proposed 2,300-acre solar farm in Pender County headed to the North Carolina Court of Appeals Tuesday.
- County officials rejected the solar operation in 2022, and a trial judge upheld that decision. Coastal Pine Solar urges the Appeals Court to reverse the decision.
- The solar company argues that county commissioners acted like “aggressive prosecutors” instead of impartial decision-makers when rejecting the project. The county accuses the company of ignoring evidence from neighbors that the solar operation would not fit the surrounding community.
The legal battle over a proposed 2,300-acre solar farm in Pender County headed Tuesday to North Carolina’s second-highest court.
Coastal Pine Solar is asking the court to reverse a trial judge’s decision in the case. The trial court sided with Pender County commissioners, who rejected the solar operation in 2022.
The solar company met its burden to secure a county permit, lawyer Thomas Terrell argued before a three-judge appellate panel. “An applicant who has met the burden of production automatically wins … if no contrary evidence is offered,” Terrell said. “And in this case, we don’t have any contrary evidence.”
Coastal Pine Solar also believes Pender County “really stepped outside of what its role is” in assessing the company’s permit application, Terrell argued. “What is not proper is for the county to become its own advocate — at any level, at any stage — where the county is looking for a certain outcome, which is clearly what was happening here,” he said.
“They have to be an impartial decision-maker,” he added. “Not the case — What happened here, we had the county was an aggressive prosecutor.”
John Cooke, arguing for Pender County, pointed to evidence supporting county commissioners’ decision.
“We have all this evidence from neighbors — adjoining property owners familiar with the property,” Cooke said. “It floods. It’s already flooding, and it’s going to make it worse. And the applicant has offered nothing to improve it or address it.”
“This is a massive speculative, inchoate venture and nothing more,” Cooke added.
“Neighbor after neighbor said this doesn’t fit,” he argued.
The North Carolina Farm Bureau Federation is siding with Pender County in the legal fight. The Farm Bureau filed paperwork in April to submit a friend-of-the-court brief in the case.
“Farm Bureau’s members know which tracts have the best soils for growing certain crops and how their farms absorb and drain water,” according to a motion from Farm Bureau lawyers. “Farm Bureau’s members are also keenly aware that North Carolina is losing farmland to development at an alarming rate and they frequently engage with their local leaders to help preserve the farmland on which they are so dependent.”
“Farm Bureau’s interest in this case is focused on Coastal Pine Solar, LLC’s (‘Coastal’) argument that the Superior Court erred below in concluding that Pender County’s denial of Coastal’s special use permit application was ‘supported by competent, material and substantial evidence that is contrary to Coastal Pines Solar LLC’s evidence,’” the motion continued. “To be clear, Farm Bureau does not oppose the siting and operation of solar facilities per se. However, it is concerned that adopting Coastal’s reasoning to reverse the Superior Court, would hinder the ability of farmers and landowners to effectively engage with county leaders when they are considering whether to issue special use permits for development.”
Pender County’s decision against Coastal Pine Solar “was supported by the competent, material, and substantial evidence presented by several farmers and landowners during an evidentiary hearing,” Farm Bureau lawyers argued.
“Coastal asserts this evidence amounted to ‘nothing more than lay opinions and generalized fears.’ Further, Coastal’s brief seems to contend that the farmers and landowners had to be qualified as experts or present documentary evidence for their evidence to constitute competent, material, and substantial evidence sufficient to rebut the evidence Coastal presented to the Pender County Board of County Commissioners. Farm Bureau’s brief challenges these claims head on,” the motion argued.
“The Record shows the farmers and landowners who spoke against Coastal’s proposed development possessed considerable knowledge about the farmland and weather in Pender County and how the development will change the way water flows off the property and into nearby waters,” Farm Bureau lawyers wrote.
The brief also addresses the “troubling and persistent loss of farmland” in North Carolina. It touts the “important role that properly crafted and applied county zoning regulations can play in protecting farmland.”
The solar company filed its Appeals Court brief in the case on March 7.
“This appeal joins a long line of cases in which a local government has denied a special use permit (‘SUP’) based on nothing more than lay opinions and generalized fears,” the company’s lawyers wrote. “Time and time again, both this Court and our Supreme Court have reiterated that an applicant is entitled to such a permit when it presents competent, material, and substantial evidence on the applicable standards and no such contrary evidence exists.”
Coastal Pine Solar cited 17 state court decisions dating back to 1974 supporting its arguments. “One would think that this existing line of precedent would be enough. Yet, here we are,” according to the company’s brief.
Pender County’s lawyers responded on April 8.
“At the beginning of the evidentiary hearing, Coastal Pine Solar, LLC (‘Coastal’) produced voluminous materials unseen by the Pender County Board of Commissioners (‘Board’) or County landowners and remarked that the size of its facility ‘could be’ the ‘elephant in the room,’ while blaming Duke Energy, a company unaware of the hearing, for its size,” the county’s brief argued. “Coastal’s credibility plummeted and the Board, having the duty to ensure the hearing was fair, asked questions to discover the facts and conditions of Coastal’s massive facility.”
The proposed farm was larger than any North Carolina solar farm identified by the company’s expert. It was “nearly twenty (20) times larger than the largest solar farm found in this Court’s precedents, raising a serious policy question unencountered by this Court,” Pender County lawyers added.
“The County had resolved the policy question by designating the land on which Coastal proposes its massive facility as prime farmland and to protect farmlands, without targeting solar farms, allowing only limited non-residential special uses,” the county brief continued.
The solar farm’s application “lacked the design evidence specifically required” by county rules, Pender County argued.
“Without design evidence, County landowners produced contrary evidence by testifying to what they personally knew – the existing physical characteristics of the land where the facility was proposed, the existing character of the community, and explained the reasons the facility did not fit,” the county’s lawyers wrote. “Their evidence was competent, material, and substantial under the Rules of Evidence for the purposes it was offered and was the only competent evidence of the existing physical characteristics of the land.”
Pender County said the solar company “hatched accusations that some Board members acted improperly” and later accused the Superior Court judge of “acting improperly.” “These accusations are wrong and misplaced,” the county brief continued.
There is no deadline for Appeals Court Judges Donna Stroud, Michael Stading, and Carolyn Thompson to issue a decision.
