Coastal Pine Solar, LLC v. Pender Cnty.

Opinions

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA24-108

Filed 17 June 2026

Pender County, No. 22CVS001029-700

COASTAL PINE SOLAR, LLC, Petitioner/Plaintiff,

v.

PENDER COUNTY, Respondent/Defendant.

Appeal by Petitioner-Appellant from order entered 2 October 2023 by Judge

Dawn M. Layton in Pender County Superior Court. Heard in the Court of Appeals

11 June 2024.

Fox Rothschild, LLP, by Attorneys Kip D. Nelson, Thomas E. Terrell, Jr., and Sean T. Placey, for the petitioner-appellant.

Womble Bond Dickinson (US) LLP, by Attorneys John C. Cooke and Carl W. Thurman, III, for the respondent-appellee.

Phillip Jacob Parker, Jr., Stephen A. Woodson, Meghan N. Cook, and Stacy Revels Sereno, for North Carolina Farm Bureau Federation, Inc., amicus curiae.

STADING, Judge.

This matter arises from the trial court’s order affirming the Pender County

Board of Commissioner’s (“the Board”) denial of Coastal Pine Solar, LLC’s

(“Petitioner”) requested special use permit (“SUP”). Petitioner sought an SUP to

Opinion of the Court

build a solar farm. For the reasons below, we affirm the trial court’s order upholding

the decision of the Board.

I. Background

In 2022, Petitioner applied for an SUP to build a 2,360-acre solar farm in

Pender County. For the SUP to be issued, Petitioner had to produce evidence tending

to show compliance with the SUP standards in the Unified Development Ordinance

(“UDO”). If those certain standards are met, the UDO allows “Other Electric Power

Generation” facilities in rural agricultural zoning districts. Under the UDO, the

following standards are required for approval:

(1) the use requested is listed among the special uses in the district for which the application is made, or is similar in character to those listed in that district;

(2) the requested use will not impair the integrity or character of the surrounding or adjoining districts, nor adversely affect the safety, health, morals, or welfare of the community or the immediate neighbors of the property;

(3) the proposed use shall not constitute a nuisance or hazard;

(4) the requested use will be in conformity with the Pender County Land Use Plan and other official plans, or policies adopted by the Board of County Commissioners;

(5) adequate utilities, access roads, drainage, sanitation or other necessary facilities have been or are being provided;

(6) adequate measures have been or will be taken to provide ingress and egress to minimize traffic congestion on public roads;

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(7) the special use shall conform to the applicable regulations of the district in which it is located; and

(8) the proposed use shall not adversely affect surrounding uses and shall be placed on a lot of sufficient size to satisfy the space requirements of said use.

At the Board’s 19 September 2022 meeting, an evidentiary hearing was held

in which Petitioner presented written materials, expert opinions, and witness

testimony consisting of reports, scientific studies, facts, photographs, and other

evidence. Petitioner gave the Board a binder detailing the solar farm project and

provided an overview of its contents. Petitioner also brought six consultants to

present information on various aspects of the solar farm, including the project’s site

plan, the health and safety of the project, the project’s impact on the property value,

the project’s environmental impact, and the project’s harmony and consistency with

Pender County’s Land Use Plan. Each consultant presented data, provided their

professional opinion, and answered the Board’s questions on the UDO standards and

concerns related to the project. At the hearing, the consultants included a licensed

civil engineer on regulatory compliance, a licensed electrical engineer on solar panel

specifics, a licensed mechanical engineer on health and safety, an appraiser on

market impact, a certified planner on land use consistency. Also, Petitioner

presented a witness with experience about living next to a solar farm.

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After Petitioner presented evidence, eight long-time landowners and farmers

from the community provided testimony. They expressed concerns over the intended

use for the land, aesthetics of the project, and current condition of the land’s potential

for water runoff problems. These witnesses also testified about the inequality

between the energy industries and local farmers regarding land use under the

wetland conservation compliance provisions of the 1985 Farm Bill.

The Board unanimously voted to deny Petitioner’s application. The Board

found that SUP standards one, two, and three were not met; but the Board did not

address standards four through eight. On 30 November 2022, Petitioner appealed to

Pender County Superior Court via a writ of certiorari under N.C. Gen. Stat. § 160D-

1402. Petitioner also filed an action for a declaratory judgment under N.C. Gen. Stat.

§ 160D-1401 and moved for summary judgment on this claim. The trial court

determined that “Petitioner . . . presented competent, material, and substantial

evidence sufficient to establish a prima facie case” on the three SUP standards

addressed by the Board. However, the trial court concluded that the witnesses

“testifying in opposition to the SUP did not present sufficient competent, material,

and substantial evidence to overcome the prima facie case established by Petitioner.”

Pursuant to N.C. Gen. Stat. § 160D-1402(k)(2), the trial court remanded the matter

to the Board to address the remaining SUP standards—four through eight.

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On remand, the Board considered Petitioner’s SUP application for standards

four through eight. On 24 July 2023, the Board denied Petitioner’s application,

reasoning that a prima facie burden had not been met for standards four, five, seven,

and eight. The Board determined that standard four—conformity with the Pender

County Land Use Plan—had not been met because the project was to be in a rural

agricultural district rather than an industrial one. Concerning standard five—

establishing that adequate utilities, access roads, drainage, sanitation, or other

necessary facilities have been or are being provided—the Board determined that

Petitioner did not establish that “adequate utilities, access roads, drainage or other

necessary facilities” existed because none of the Petitioner’s witnesses testified that

nearby electrical transmission lines could handle the project’s output or that efforts

had been made to offset any potential water runoff resulting from clearing 2,300 acres

of timberland. The Board also determined that standard seven—conformity with

applicable regulations of the district—had not been satisfied because an adjoining

landowner testified about a nearby solar farm built in similar soil that required

pouring concrete to support the solar panels, which would prevent the land from

future agricultural use. The Board last determined that standard eight—which

related to the adverse effect on surrounding uses—had not been met because

Petitioner’s expert had not visited the project site, performed soil or water quality

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tests, or verified whether the surrounding residents relied on well water to confirm

that the presence of lead in the solar panels would impact nearby land or residential

homes. Therefore, the Board issued a written order stating that Petitioner had not

made a prima facie case and thus denied the SUP.

Petitioner appealed to the trial court via a writ of certiorari for review of the

Board’s denial of the SUP on standards four, five, seven, and eight. In its order dated

28 September 2023, the trial court affirmed the Board’s decision denying the SUP.

Applying de novo review, the trial court concluded that Petitioner “provided, and the

record contains competent, material, and substantial evidence sufficient to establish

[a] prima facie case as to the special use permit standard[s] four through eight.” Next,

the trial court “completed a whole record review,” and concluded that the Board’s

decision to deny the SUP as to grounds four through eight was “supported by

competent, material and substantial evidence that is contrary to [Petitioner]’s

evidence.” On 8 December 2023, the trial court entered a clarifying final judgment

on all claims. Petitioner entered notice of appeal.

II. Jurisdiction

This Court has jurisdiction to consider this matter under N.C. Gen. Stat. § 7A-

27(b)(1) (2025).

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III. Analysis

Petitioner presents three issues on appeal:1 whether the trial court improperly

substituted its own rationale for denying the application and applied the correct

standard of review; whether the Board erred in denying the application by concluding

that Petitioner failed to meet its prima facie case of entitlement; and whether the

Board deprived Petitioner of its due process rights. We affirm the trial court’s

decision for the reasons outlined below.

A. Standard of Review

When the governing body holds a hearing to consider an SUP application, “it

acts in a quasi-judicial capacity.” Humble Oil & Refin. Co. v. Bd. of Aldermen, 284

N.C. 458, 469, 202 S.E.2d 129, 136–37 (1974). The governing body members “sitting

in a quasi-judicial capacity must base their decision to grant or deny a[n] [SUP] on

objective factors, which are based upon the evidence presented, and not upon their

1 On appeal, Petitioner attributes weight to the trial court’s passing remark encouraging Petitioner to

exercise their appellate rights. The trial court’s observation that “I believe you will appeal this order and you should” is not indicative of the merits of the underlying claims. Instead, the trial court’s remark is best understood to encourage Petitioners to exercise their rights. In any event, the trial court’s remark does not affect our judgment or decision in this case as it is not a reflection on the substance of the issues now before this Court.

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subjective preferences or ideas.” PHG Asheville, LLC v. City of Asheville, 262 N.C.

App. 231, 239, 822 S.E.2d 79, 85 (2018), aff’d as modified, 374 N.C. 133, 839 S.E.2d

755 (2020).

The governing body follows a two-step decision-making process in determining

whether to grant or deny an application for an SUP:

(1) If an applicant has produced competent, material, and substantial evidence tending to establish the existence of the facts and conditions which the ordinance requires for the issuance of a special use permit, prima facie he is entitled to it. (2) If a prima facie case is established, a denial of the permit then should be based upon findings contra which are supported by competent, material, and substantial evidence appearing in the record.

Mann Media, Inc. v. Randolph Cty. Planning Bd., 356 N.C. 1, 12, 565 S.E.2d 9, 16

(2002) (citation modified).

“Every quasi-judicial decision shall be subject to review by the superior court

by proceedings in the nature of certiorari pursuant to G.S. 160D-1402.” N.C. Gen.

Stat. § 160D-406(k) (2025). When reviewing a quasi-judicial decision via a petition

for writ of certiorari, “the superior court sits as an appellate court, and not as a trier

of facts.” Tate Terrace Realty Invs., Inc. v. Currituck Cnty., 127 N.C. App. 212, 217,

488 S.E.2d 845, 848 (1997). Upon appeal to the superior court:

[T]he task of a court reviewing a decision on an application for a[n] [SUP] made by a town board sitting as a quasi- judicial body includes:

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(1) Reviewing the record for errors in law,

(2) Insuring that procedures specified by law in both statute and ordinance are followed,

(3) Insuring that appropriate due process rights of a petitioner are protected including the right to offer evidence, cross-examine witnesses, and inspect documents,

(4) Insuring that decisions of town boards are supported by competent, material and substantial evidence in the whole record, and (5) Insuring that decisions are not arbitrary and capricious.

Coastal Ready-Mix Concrete Co. v. Bd. of Comm’rs, 299 N.C. 620, 626, 265 S.E.2d 379,

383 (1980) (citation modified). The superior court’s task is to review the evidence

presented to the Board while acting in its quasi-judicial capacity. Id. In doing so, its

standard of review “depends upon the particular issues presented on appeal.” Mann

Media, Inc., 356 N.C. at 13, 565 S.E.2d at 17 (cleaned up).

“[I]f a petitioner contends the board’s decision was based on an error of law, de

novo review is proper.” Id. (citation modified). Under de novo review, the court

“considers the matter anew and freely substitutes its own judgment for the [local

governing board’s] judgment.” PHG Asheville, LLC, 374 N.C. at 150, 839 S.E.2d at

766 (citation modified). But if a petitioner questions “(1) whether the agency’s

decision was supported by the evidence or (2) whether the decision was arbitrary or

capricious, then the reviewing court must apply the ‘whole record’ test.” ACT-UP

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Triangle v. Comm’n for Health Servs., 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997)

(cleaned up). “The ‘whole record’ test requires the reviewing court to examine all

competent evidence (the ‘whole record’) in order to determine whether the agency

decision is supported by ‘substantial evidence.’ ” Id. (quotation marks and citation

omitted). Under whole record review, “[t]he reviewing court should not replace the

[local governing board’s] judgment as between two reasonably conflicting views;

‘while the record may contain evidence contrary to the findings of the agency, this

Court may not substitute its judgment for that of the agency.’ ” SBA, Inc. v. City of

Asheville City Council, 141 N.C. App. 19, 27, 539 S.E.2d 18, 22 (2002) (citation

modified).

Finally, this Court “examines the trial court’s order for error of law. The

process has been described as a twofold task: (1) determining whether the trial court

exercised the appropriate scope of review, and if appropriate, (2) deciding whether

the court did so properly.” ACT-UP Triangle, 345 N.C. at 706, 483 S.E.2d at 392

(quotation marks and citation omitted); Am. Towers, Inc., 222 N.C. App. at 641, 731

S.E.2d at 701 (“[W]e review de novo the initial issue of whether the evidence

presented by petitioner met the requirement of being competent, material, and

substantial. The town’s ultimate decision about how to weigh that evidence is subject

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to whole record review.”). We therefore consider whether the trial court exercised

and employed the proper standard of review.

B. Special Use Permit

1. The Trial Court’s Standards of Review

Petitioner argues that the trial court was requested to “address the basis for

the County’s decision,” but in doing so, it instead impermissibly determined whether

competent, material, and substantial evidence existed adverse to it.

“An applicant for a[n] [SUP] must establish a prima facie case, by competent,

material, and substantial evidence, meeting all the conditions in the zoning

ordinance.” PHG Asheville, LLC, 262 N.C. App. at 238, 822 S.E.2d at 84 (citing

Humble Oil, 284 N.C. at 467, 202 S.E.2d at 136). If an applicant has

produced competent, material, and substantial evidence tending to establish the existence of the facts and conditions which the ordinance requires for the issuance of a special use permit, prima facie he is entitled to it. A denial of the permit should be based upon findings contra which are supported by competent, material, and substantial evidence appearing in the record.

Humble Oil, 284 N.C. at 468, 202 S.E.2d at 136.

As discussed, “we review de novo the initial issue of whether the evidence

presented by petitioner met the requirement of being competent, material, and

substantial.” Am. Towers, Inc., 222 N.C. App. at 641, 731 S.E.2d at 701. When

“evidence [is] competent, material, and substantial, then [the] evidence [is]

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necessarily ‘sufficient’ to make out a prima facie case.” PHG Asheville, LLC, 262 N.C.

App. at 240, 822 S.E.2d at 86. Likewise, it follows that we review de novo whether

adverse competent, material, and substantial evidence appears in the record. See

Innovative 55, LLC v. Robeson Cnty., 253 N.C. App. 714, 719, 801 S.E.2d 671, 675

(2017) (citation modified) (“Whether competent, material and substantial evidence is

present in the record is a conclusion of law, which is reviewed de novo.”); see also Am.

Towers, Inc., 222 N.C. App. 638, 641, 731 S.E.2d 698, 701 (2012) (citation omitted)

(“[W]e address both of these issues under de novo review.”). From there, “[t]he [local

governing board’s] ultimate decision about how to weigh [the] evidence is subject to

whole record review.” Id. (citation omitted).

In its order, the trial court upheld the Board’s denial of Petitioner’s SUP

request:

4. [A]fter completing a de novo review the Court finds that Coastal Pines Solar, LLC provided, and the record contains competent, material and substantial evidence sufficient to establish [a] prima facie case as to the special use permit standards four through eight of the Pender County Unified Development Ordinance. Specifically, Coastal Pine Solar LLC presented evidence in the form of voluminous written materials, expert reports, and testimony of five expert witnesses.

5. After completing a whole record review and not superseding the Pender County Board of Commissioners’ judgment with the Court’s, find that Pender County’s decision to deny the special use permit application as to standards four, five, seven and eight is supported by

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competent, material and substantial evidence that is contrary to Coastal Pine Solar LLC’s evidence.

The trial court also determined that the Board’s decision was neither arbitrary and

capricious nor in violation of Petitioner’s due process rights.

Here, paragraph four of the trial court’s order provides it reviewed de novo: (1)

whether Petitioner adduced sufficient evidence to make a prima facie showing of

entitlement; and (2) whether Petitioner’s proposed use conformed with the UDO.

Paragraph four demonstrates the trial court did not weigh the evidence; but properly

applied de novo review to determine the initial legal issue of whether Petitioner had

presented competent, material and substantial evidence. See PHG Asheville, LLC,

262 N.C. App. at 241, 822 S.E.2d at 86.

With respect to paragraph five, the trial court applied whole record review and

found the Board’s decision was supported by the evidence. Here, the trial court failed

to indicate it used de novo review in considering whether adverse competent,

material, and substantial evidence appeared in the record. In this particular case,

however, the trial court’s failure does not warrant remand. See Schooldev E., LLC v.

Town of Wake Forest, 386 N.C. 775, 785, 909 S.E.2d 181, 190 (2024).

2. The Trial Court’s Application of the Standards of Review

Our analysis next turns to whether the trial court correctly applied its

standards of review upon affirming the Board’s denial of Petitioner’s SUP. Although

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the trial court concluded Petitioner presented sufficient evidence to establish a prima

facie case, Petitioner contends the trial court erred in determining denial was proper

due to the existence of sufficient contrary evidence.

a. Petitioner’s Prima Facie Case of Entitlement

The Board hears evidence, acts as a finder of fact, and follows “a two-step

decision-making process in granting or denying an application for a special use

permit.” Mann Media, 356 N.C. at 12, 565 S.E.2d at 16. First, the Board determines

whether the “applicant has produced competent, material, and substantial evidence

tending to establish the existence of the facts and conditions which the ordinance

requires for the issuance of a special use permit . . . .” Humble Oil, 284 N.C. at 468,

202 S.E.2d at 136. “Competent evidence is evidence that is relevant and admissible.”

Schooldev E., LLC, 386 N.C. at 783, 909 S.E.2d at 188 (citations omitted). Material

evidence is evidence having “some logical connection with the facts of the case or the

legal issues presented.” Id. (citations omitted). Substantial evidence is defined as

“such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Id. (citations omitted). Accordingly, evidence must be “admissible,

relevant to the issues in dispute, and sufficient to support the decision of a reasonable

fact-finder.” Blair Invs., LLC v. Roanoke Rapids City Council, 231 N.C. App. 318,

321, 752 S.E.2d 524, 527 (2013). If “the applicant satisfies this initial burden of

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production, then prima facie he is entitled to the issuance of the requested permit.”

PHG Asheville, LLC, 374 N.C. at 149, 839 S.E.2d at 766 (quotation marks and citation

omitted). “At that point, any decision to deny the application should be based upon

findings contra which are supported by competent, material, and substantial

evidence appearing in the record . . . .” Id. (quotation marks and citation omitted).

Ultimately, employing de novo review, the trial court concluded Petitioner

produced sufficient evidence to establish a prima facie case of entitlement. Having

determined the trial court exercised the appropriate scope of review, our de novo

review turns to whether Petitioner presented sufficient evidence to establish a prima

facie case of entitlement with respect to the contested standards. See ACT-UP

Triangle, 345 N.C. at 706, 483 S.E.2d at 392 (quotation marks and citation omitted).

i. Standard Five

Petitioner argues the Board incorrectly “determined that [it] failed to meet this

standard because it did not use the word ‘adequate’ in its description of the power

grid.” SUP standard five requires Petitioner to adduce sufficient evidence of:

“Adequate utilities, access roads, drainage, sanitation or other necessary facilities

have been or are being provided[.]” At the SUP hearing, Petitioner proffered that

water and sewer utilities, access roads, and sanitation facilities are unnecessary

because of the unmanned nature of the solar project. Additionally, while standard

five mentions “other necessary facilities,” Petitioner asserted it was “unable to

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provide any more information on this standard” given “the absence of a UDO or

generally accepted definition of the term ‘facilities[.]’ ” Nevertheless, Petitioner

maintains the board “ignored the evidence provided by [it] on site drainage.”

The Board’s order provided the following findings of fact when denying

Petitioner’s SUP application:

1) Criteria 5: Requires applicant to establish that adequate utilities, access roads, drainage, sanitation or other necessary facilities to serve the proposed use have been or are being provided. While the attorney for the applicant noted that there was nearby electrical transmission lines, no witness for the applicant testified that the transmission line was adequate to transmit the industrial scale project proposed for the Parcel. Given that the applicant failed to present evidence that the current[ ] distribution lines could handle electricity produced, the applicant failed to make a prima facia case.

2) Criteria 5 also requires sufficient drainage. On 9/19/2022, the Pender Soil and Water Conservation Director testified the land subject to the application had been taken out of agricultural use due to it[s] designation by the State as “wetlands”. There was no testimony from the applicant as to the remedial measures to be taken to offset the runoff potential to this project which would clear cut 2300 acres of timberland.

First, the Board found Petitioner failed to adduce sufficient evidence of existing

adequate utilities “to serve the proposed use [that] have been or are being provided.”

Specifically, the Board found Petitioner “failed to present evidence that the current

distribution lines could handle electricity produced” and “no witness for [Petitioner]

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testified that the transmission line was adequate to transmit the industrial scale

project proposed for the Parcel.” When questioned about the adequacy of the

transmission line, Petitioner provided:

A solar farm’s utility needs are different than other uses. Rather than needing access to electrical power, [the project] requires access to the power grid, which this site has through access to a 230 kilovolt transmission line that crosses the site. Beyond that, [the project] needs an adequate location to construct a substation where the current generated by the panels can be increased to the power level on the transmission lines and placed onto the grid.

Additionally, Petitioner’s expert witness in electrical engineering, Chris Sandifer,

testified that the necessary infrastructure required Duke Energy’s interconnect

equipment to be able to handle the electricity produced. Petitioner noted electricity

would be “sent onto the local electric grid through a ‘point of interconnection’ at an

existing transmission line at the property.” According to Mr. Sandifer, the only

remaining necessity would be substations, which would be constructed by Duke

Energy. At best, Petitioner’s evidence only established that there is no existing utility

on site and they would need to involve Duke Energy to create an adequate “point of

interconnection.” Petitioner’s reliance on the presence of two existing Duke 230 kV

transmission lines by itself is not sufficient evidence to support a prima facie showing

under standard five since those lines could not currently serve the property. See, e.g.,

Ballas, 121 N.C. App. at 347–50, 465 S.E.2d at 325–27 (holding the petitioner made

a prima facie showing that “[a]dequate utilities, access roads, drainage and/or other

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necessary facilities have been or are being provided” because the existing water and

sewer facilities were currently serving the property.). For these reasons, we conclude

Petitioner failed to show that “[a]dequate utilities, . . . [and] other necessary facilities

have been . . . provided[.]” See id.

We next consider whether Petitioner adduced sufficient evidence that

adequate utilities are being provided. Along with the above evidence, Petitioner’s

expert’s report stated: “This proposed project is adjacent to two existing Duke 230 kV

transmission lines. A new substation and Duke switching station will be constructed

to connect the project to the grid which it is interconnecting.” Testimony offered

during the hearing provided: “the equipment is going to be that interconnects will be

specified by Duke, paid for the by applicant, paid for by the project, and so the switch

gear . . . . is not an unusual device for Duke.”

Our review of the record reveals Petitioner failed to adduce sufficient evidence

to make a prima facie showing that adequate utilities are being provided. See

Schooldev E., 386 N.C. at 783, 909 S.E.2d at 188–89 (cleaned up) (“When considering

permit applications in a quasi-judicial capacity, a local government board must

determine whether the applicant has produced competent, material, and substantial

evidence tending to establish the existence of the facts and conditions which the

ordinance requires for the issuance of the requested permit.”). After careful review,

we conclude Petitioner failed to adduce competent and substantial evidence. See id.

(citations omitted) (“Competent evidence is evidence that is relevant and

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admissible. . . . Substantial evidence consists of ‘more than a mere scintilla. It means

such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.’ ”).

First, Petitioner’s evidence on whether adequate utilities are being provided

was not competent evidence. See id. As to this point, we note that “speculative and

general lay opinions and bare or vague assertions do not constitute competent

evidence to overcome an applicant’s prima facie showing.” Ecoplexus Inc. v. Cnty. of

Currituck, 257 N.C. App. 9, 17, 809 S.E.2d 148, 156 (2017) (citing Innovative 55, LLC,

253 N.C. App. at 723, 801 S.E.2d at 678) (cleaned up). While inquiries involving

whether testimony is “speculative[,] . . . bare or vague” are typically addressed with

respect to contrary evidence, both the prima facie case and contrary evidence require

competent, material and substantial evidence. Id.; see also Am. Towers, Inc., 222

N.C. App. at 641, 731 S.E.2d at 701; see also e.g., Innovative 55, LLC, 253 N.C. App.

at 723, 801 S.E.2d at 678; Sun Suites Holdings, LLC, 139 N.C. App. at 276, 533 S.E.2d

at 530; Howard v. City of Kinston, 148 N.C. App. 238, 246, 558 S.E.2d 221, 227 (2002).

As the denial of an SUP may not rest on “speculative[,] . . . bare or vague assertions”

neither may the grant of an SUP. Ecoplexus Inc., 257 N.C. App. at 17, 809 S.E.2d at

156; see also Am. Towers, Inc., 222 N.C. App. at 641, 731 S.E.2d at 701 (citation

modified) (“We must determine whether petitioner presented competent, material,

and substantial evidence. If so, then petitioner has made out a prima facie case, and

the permit must issue unless there was competent, material, and substantial

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evidence to rebut petitioner’s showing. Because whether competent, material and

substantial evidence is present in the record is a conclusion of law, we address both

of these issues under de novo review.”). Indeed, we emphasize both the prima facie

case and contrary evidence are subject to the same requirements and standards of

competent, material and substantial evidence. See Am. Towers, Inc., 222 N.C. App.

at 641, 731 S.E.2d at 701. Accordingly, we conclude “speculative[,] . . . bare or vague

assertions do not constitute competent evidence” for a prima facie case. Ecoplexus

Inc., 257 N.C. App. at 17, 809 S.E.2d at 156; see also Am. Towers, Inc., 222 N.C. App.

at 641, 731 S.E.2d at 701.

Applying this principle here, Petitioner’s testimony that Duke Energy would

be responsible for constructing a substation or point of interconnection according to

Duke Energy’s specifications, is a “speculative[,] . . . bare [and] vague assertion.”

Ecoplexus Inc., 257 N.C. App. at 17, 809 S.E.2d at 156. While the UDO mandates

that “[a]dequate utilities are being provided[,]” the record lacks any evidence that

Duke Energy is actually providing these utilities and whether such utilities would be

“adequate.” Moreover, Petitioner did not present evidence tending to show whether

the existing transmission lines are compatible with Duke Energy’s requirements.

While Mr. Sandifer testified that “interconnects will be specified by Duke[,]” this

statement does not amount to competent or substantial evidence of compliance with

the UDO’s specifications. Without more, a mere assertion that Duke Energy will

construct the necessary adequate utilities is no more than a “speculative[,] . . . bare

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[and] vague assertion.” Id. Likewise, these assertions do not amount to “such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion[ ]” that adequate utilities “are being provided.” Schooldev E., 386 N.C. at

783, 909 S.E.2d at 188–89. For these reasons, we hold Petitioner failed to adduce

competent and substantial evidence as to standard five.

Since Petitioner failed to establish a prima facie case of compliance with

standard five, we need not consider the remaining SUP standards. See Mann Media,

356 N.C. at 17, 565 S.E.2d at 19 (holding the reviewing court need not address other

requirements when one essential element is not met). Our de novo review concludes

the Board properly denied Petitioner’s SUP application since they failed to satisfy

their burden of production.

C. Due Process

Petitioner asserts that the Board violated established law and deprived it of

due process. Petitioner’s due process argument claims explicit and implicit bias of

the Board and its commissioners. First, Petitioner argues, “[o]ne commissioner, after

the public hearing was closed and moments before the vote, explicitly admitted that

he had ex parte communications with ‘a lot of’ individuals prior to the hearing.”

Second, Petitioner contends, at the first hearing, “[a]nother commissioner implicitly

admitted having ex parte communications” by repeatedly asking questions about the

use of concrete in the soil to support solar panels.

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As an initial matter, we note Petitioner did not present its claims of bias to the

Board, which historically precluded such an argument. See JWL Invs., Inc. v.

Guilford Cnty. Bd. of Adjustment, 133 N.C. App. 426, 430, 515 S.E.2d 715, 718 (1999)

(overruling due process argument because “[t]he petitioners did not object during the

hearing to this member’s presence on the Board.”). After 2021, however, JWL Invs.,

Inc. has been partially superseded by N.C. Gen. Stat. § 160D-1402(i)(2) (2025) (“A

failure to object at a hearing by a person with standing . . . shall not constitute a

waiver of a right to assert impermissible conflict involving a member of the

decision-making board.”). Accordingly, we address Petitioner’s arguments in turn.

Chapter 160D of the North Carolina General Statutes concerns local planning

and development regulation. See N.C. Gen. Stat. § 160D-101 et seq. (2025).

Subsection 160D-109(d) provides, “[a] member of any board exercising quasi-judicial

functions . . . shall not participate in or vote on any quasi-judicial matter in a manner

that would violate affected persons’ constitutional rights to an impartial decision

maker.” Id. § 160D-109(d) (emphasis added). To be sure, N.C. Gen. Stat. § 160D-

109(d) enumerates several violations of due process, including “undisclosed ex parte

communications.” Id.

In this context, an ex parte communication would generally involve a

prohibited communication between one of the members of the decision-making board

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and an interested party (or their attorney) to the matter, to the exclusion of an

adversely interested party (or their attorney). See ex parte, adv., Black’s Law

Dictionary (12th ed. 2024) (“On or from one party only[.]”); see also ex parte, adj.,

Black’s Law Dictionary (12th ed. 2024) (“Done or made at the instance and for the

benefit of one party only, and without notice to, or argument by, anyone having an

adverse interest[.]”); see also ex parte communication, Black’s Law Dictionary (12th

ed. 2024) (“A communication between counsel or a party and the court when opposing

counsel or party is not present.”). Also in this context, “there is a presumption of

honesty and integrity in those serving as adjudicator on a quasi-judicial tribunal.” In

re N. Wilkesboro Speedway, Inc., 158 N.C. App. 669, 675, 582 S.E.2d 39, 43 (2003)

(citation modified). And “to prove bias, it must be shown that the decision-maker has

made some sort of commitment, due to bias, to decide the case in a particular way.”

Dellinger v. Lincoln Cnty., 266 N.C. App. 275, 280–81, 832 S.E.2d 172, 178 (2019)

(citation omitted).

With respect to Petitioner’s first contention, the commissioner stated:

I just disagree with what Commissioner Newton just said in regard to everything she said in regards to the farmer. I’ve heard from a lot of them the last couple of days myself, and I certainly – the attorney has shared with us several times the rules and regulations regarding special use. Perhaps he didn’t think we knew that, but we do. And so I think this is a great example of something that’s is not a good fit for our [rural agricultural zoning district]

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Commissioner Newton just alluded to. Thank you, everybody.

Here, Petitioner’s position requires us to make assumptions not demonstrated

in the record before this Court. Petitioner has failed to carry its burden of

establishing that an ex parte communication occurred on account of the

commissioner’s statement he “heard from a lot of them.” See Hope v. Charlotte-

Mecklenburg Bd. of Educ., 110 N.C. App. 599, 603, 430 S.E.2d 472, 474 (1993) (citing

Taborn v. Hammonds, 83 N.C. App. 461, 472, 350 S.E.2d 880, 887 (1986)) (“To decide

that these facts alone are sufficient to establish bias or unfair prejudice would amount

to a per se rule of unconstitutionality, completely disregarding the presumption that

the Board acted correctly and the presumption of honesty and integrity in those

serving as adjudicators.”). Further, without more, this statement does not illustrate

the necessary commitment to show bias and overcome the strong presumption of

honesty and integrity. See Dellinger, 266 N.C. App. at 280–81, 832 S.E.2d at 178

(citation omitted); see also, e.g., Vulcan Materials Co. v. Guilford Cnty. Bd. of Cnty.

Comm’rs, 115 N.C. App. 319, 325, 444 S.E.2d 639, 643 (1994) (“although the record

contains some comments which indicate that certain members of the Board were

going to vote to deny the special use permits, these comments were made after

evidence was presented, and there is no evidence in the record which discloses that

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any Board member had made a fixed decision, prior to the hearing, to vote against

granting the special use permits.”).

Similarly, with respect to Petitioner’s second contention, the commissioner’s

line of questioning does not demonstrate bias. Petitioner points to questions related

to the use of concrete in soil and argues this line of questioning reveals the occurrence

of ex parte communications because, while unprompted, it closely resembled the later

testimony from a witness’s personal experience. Petitioner then surmises “[t]he only

reasonable conclusion is that the commissioner had spoken with and was influenced

by this particular opponent prior to the hearing . . . . without publicly disclosing those

communications.” However, Petitioner’s argument again rests on assumptions we

cannot make, namely, assuming an ex parte communication occurred merely because

a commissioner’s line of questioning shared similarities with the testimony of a

witness. Without more, Petitioner has not demonstrated sufficient evidence that the

questions, which were relevant, reflected impropriety. See Dellinger, 266 N.C. App.

at 280–81, 832 S.E.2d at 178. Instead, consistent with the presumption of honesty

and integrity, the commissioner’s questions about the usage of concrete likewise

reflect an inquiry related to the satisfaction of the UDO. See id.

Moreover, “[t]he distinction between pre-hearing knowledge and bias is key.”

In re Application Raleigh, 107 N.C. App. at 514, 421 S.E.2d at 184. “The mere fact

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that a decision maker enters a hearing with knowledge of the subject matter of the

hearing does not lead necessarily to the conclusion that the decision maker’s mind is

closed to evidence and set as to the final result.” Id. Thus, even if the commissioner

had acquired knowledge about the use of concrete in the soil for some solar projects,

this alone does not necessarily lead to impermissible bias. See id. In fact, the

commissioner brought this knowledge to Petitioner’s attention to allow it an

opportunity to respond, which it did. A comprehensive review of the record reveals

there is insufficient evidence to overcome the presumption of honesty and integrity.

Accordingly, Petitioner’s due process argument is overruled.

IV. Conclusion

The record shows that Petitioner failed to meet the mandatory standards to

establish a prima facie entitlement to the requested SUP. Therefore, the Board

properly denied the SUP. Thus, the superior court ultimately did not err in affirming

the Board’s decision. And after careful review of the record, Petitioner’s due process

argument is overruled.

AFFIRMED.

Judge MURRY concurs.

Judge STROUD concurs in result only.

Report per Rule 30(e).

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