IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-1370
Filed: 19 July 2016
Lincoln County, No. 15 CVS 00384
GARY DELLINGER, VIRGINIA DELLINGER, and TIMOTHY S. DELLINGER, Petitioners,
v.
LINCOLN COUNTY, LINCOLN COUNTY BOARD OF COMMISSIONERS, and STRATA SOLAR, LLC, Respondents,
and
TIMOTHY P. MOONEY, MARTHA McLEAN, and THE SAILVIEW OWNERS ASSOCIATION, Intervenor Respondents.
Appeal by petitioners from order entered 17 July 2015 by Judge Yvonne Mims
Evans in Lincoln County Superior Court. Heard in the Court of Appeals 24 May 2016.
Sigmon, Clark, Mackie, Hanvey & Ferrell, P.A., by Forrest A. Ferrell and Jason White, for petitioners-appellants.
Scarbrough & Scarbrough, PLLC, by James E. Scarbrough and John F. Scarbrough, for intervenor respondents-appellees.
TYSON, Judge.
Gary Dellinger, Virginia Dellinger, and Timothy S. Dellinger (collectively, “the
Dellingers” or “Petitioners”) appeal from order affirming the decision of the Lincoln
County Board of Commissioners (“the Board”) to deny Strata Solar, LLC’s application
for a conditional use permit. We affirm in part, reverse in part, and remand. DELLINGER V. LINCOLN CTY.
Opinion of the Court
I. Factual Background
The Dellingers own three tracts of real property in Denver, Lincoln County,
North Carolina, which total approximately fifty-four acres. In May 2013, the
Dellingers contracted with Strata Solar, LLC (“Strata Solar”) for it to lease a portion
of their property for the installation and operation of a solar energy facility. The
Dellingers’ property was zoned for residential-single family use (“R-SF”) under the
Lincoln County Unified Development Ordinance (“the Ordinance”). The properties
directly adjoining or abutting the Dellingers’ property are zoned as planned
development-residential (“PD-R”) and general industrial (“I-G”).
The Ordinance schedules the operation of a solar energy farm as a permitted
use on properties with this zoning classification, upon application for a conditional
use permit. According to the Ordinance, an applicant for a conditional use permit
must meet four conditions:
(1) The use will not materially endanger the public health or safety if located where proposed and developed according to the plan;
(2) The use meets all required conditions and specifications;
(3) The use will not substantially injure the value of adjoining or abutting property unless the use is a public necessity; and
(4) The location and character of the use, if developed according to the plan as submitted and approved, will be in harmony with the area in which it is to be located and will
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be in general conformity with the approved Land Development Plan for the area in question.
On 23 July 2013, Strata Solar filed its conditional use permit application to
construct a solar energy facility on a 35.25-acre portion of the land owned by the
Dellingers. Strata Solar presented evidence in support of its application to the
Lincoln County Planning Board during quasi-judicial hearings conducted on 9
September and 25 November 2013. The Lincoln County Planning Director reviewed
the application, found it satisfied the four conditions, and recommended issuance of
the permit. The Lincoln County Planning Board voted 4-4 on its recommendation to
the Board of Commissioners for the conditional use permit.
On 2 December and 16 December 2013, the Board of Commissioners held
quasi-judicial hearings for consideration of and a final determination on Strata
Solar’s application. One commissioner recused himself from the vote. Twenty-four
witnesses testified at the 2 December hearing.
The hearing resumed on 16 December, and after the testimony and evidence
was presented, the Board of Commissioners voted 3 to 1 to deny Strata Solar’s
application. The Board concluded Strata Solar had met the first two conditions in
order to issue the conditional use permit. However, the Board voted against Strata
Solar’s application on not meeting the third and fourth conditions: (3) “[t]he use will
not substantially injure the value of adjoining or abutting property unless the use is
a public necessity;” and, (4) “[t]he location and character of the use, if developed
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according to the plan as submitted and approved, will be in harmony with the area
in which it is located and will be in general conformity with the approved Land
Development Plan for the area in question.”
The Dellingers filed a Notice of Appeal and Petition for Writ of Certiorari in
the Lincoln County Superior Court on 17 January 2014. The superior court also
entered an order, which permitted property owners Timothy P. Mooney, George
Gerard Arena, Martha McLean, and the Sailview Owners Association (collectively,
“Intervenors-Respondents”) to intervene in this action. One of the intervenors,
George Gerard Arena, subsequently took a voluntary dismissal and withdrew from
the case, after he sold his residence within the Sailview subdivision during the
pendency of the action. No evidence was presented on the value of, or factors
surrounding, this sale within Sailview.
On 7 August 2014, the superior court entered an order limiting the Dellingers’
appeal to exclude “matters that could have been raised at the quasi-judicial hearing.”
The superior court concluded:
The Petitioners, [the Dellingers,] by their failure to participate in the quasi-judicial hearing, waived their rights on appeal to complain of or object to those issues which could have been raised in the quasi-judicial hearing such that the scope of review is now limited to whether the Lincoln County Board of Commissioners’ decision was supported by substantial competent evidence in view of the entire record and/or whether the Board’s decision was arbitrary or capricious using the “whole record” test.
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The Dellingers’ appeal was heard on 26 January 2015. The superior court
entered a written order on 25 February 2015, in which the court concluded it was
“unable to determine whether the Board’s decision on the third requirement was
supported or unsupported by substantial competent evidence in view of the entire
record.” The superior court also held “[t]he Board did not make sufficient findings of
fact regarding the third requirement,” and “remand[ed] the matter to the Board for
additional findings of fact regarding its decision to find in the negative as to the third
requirement that ‘the use will not substantially injure the value of adjoining property
unless the use is a public necessity.’”
The superior court also reversed the Board’s decision concerning Strata Solar’s
compliance with the fourth condition. The superior court concluded: “After reviewing
the entire record, . . . there is not substantial evidence to support the Board’s decision
that the use is not in harmony with the area.” This ruling on Strata Solar’s
compliance with the fourth condition was not appealed from, and is binding upon all
parties.
Following the superior court’s remand, the matter came before the Board of
Commissioners for the second time on 16 March 2015. No new testimony or
additional evidence was taken. The membership of the Board had changed to include
two new members since the initial decision was rendered on 16 December 2013.
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The Chair of the Board had originally recused himself, and did so once again.
New Commissioner Beam, the Vice-Chair, also recused himself, against the advice of
the County Attorney, and stated he was not a member of the Board when it issued its
original decision. Commissioner Martin Oakes (“Commissioner Oakes”), another new
member of the Board, stated he had reviewed the entire record of the prior
proceedings and participated in the 16 March vote.
The Board voted 2 to 1 to deny the conditional use permit application in a
written decision dated 20 March 2015. The Dellingers filed a second Notice of Appeal
and Petition for Writ of Certiorari. The Lincoln County Superior Court issued a
second writ of certiorari on 16 April 2015. The superior court permitted the
Intervenors-Respondents to intervene in the second action by order entered 8 June
2015.
The Dellingers’ appeal was heard on 26 May 2015. The superior court entered
its Decision on Appeal on 17 July 2015, which affirmed the Board’s denial of the
conditional use permit. The Dellingers gave timely notice of appeal to this Court.
While Lincoln County and its Board of Commissioners are listed as party-defendants,
neither filed a brief on appeal nor was either entity represented during oral
arguments before this Court.
II. Issues
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The Dellingers argue the superior court erred by affirming the Board’s decision
because: (1) the application for a conditional use permit was supported by competent,
material, and substantial evidence; (2) the Board erred by allowing Commissioner
Oakes to participate in the hearing and vote, and by requiring an improper burden of
proof; and, (3) the Board’s denial of the conditional use permit was not supported by
competent, material, and substantial evidence.
III. Standard of Review
“A legislative body such as the Board, when granting or denying a conditional
use permit, sits as a quasi-judicial body.” Sun Suites Holdings, LLC v. Bd. of
Alderman of Town of Garner, 139 N.C. App. 269, 271, 533 S.E.2d 525, 527, disc.
review denied, 353 N.C. 280, 546 S.E.2d 397 (2000).
Our Supreme Court has recognized, “[d]ue process requirements mandate that
certain quasi-judicial [land use] decisions comply with all fair trial standards when
they are made.” County of Lancaster v. Mecklenburg Cty., 334 N.C. 496, 506, 434
S.E.2d 604, 611 (1993) (emphasis supplied). In addition to prior notice and an
impartial decision-maker, our Supreme Court has explained these “fair trial
standards” also include “an evidentiary hearing with the right of the parties to offer
evidence; cross-examine adverse witnesses; inspect documents; have sworn
testimony; and have written findings of fact supported by competent, substantial, and
material evidence.” Id. at 507-08, 434 S.E.2d at 612 (citations omitted).
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The Board’s decisions “shall be subject to review of the superior court in the
nature of certiorari[,]” N.C. Gen. Stat. § 160A-381(c) (2015), in which “the superior
court sits as an appellate court, and not as a trier of facts.” Tate Terrace Realty Inv’rs,
Inc. v. Currituck Cty., 127 N.C. App. 212, 217, 488 S.E.2d 845, 848 (citation omitted),
disc. review denied, 347 N.C. 409, 496 S.E.2d 394 (1997).
The role of the superior court in reviewing the decision of a Board of
Commissioners, sitting as a quasi-judicial body, has been defined as follows:
(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., Inc. v. Bd. of Comm’rs of Town of Nags Head, 299
N.C. 620, 626, 265 S.E.2d 379, 383, reh’g denied, 300 N.C. 562, 270 S.E.2d 106 (1980).
“This Court’s task on review of the superior court’s order is twofold: (1)
determining whether the trial court exercised the appropriate scope of review and, if
appropriate, (2) deciding whether the court did so properly.” SBA, Inc. v. City of
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Asheville City Council, 141 N.C. App. 19, 23, 539 S.E.2d 18, 20 (2000) (citations and
internal quotation marks omitted).
In reviewing the sufficiency and competency of the evidence at the appellate level, the question is not whether the evidence before the superior court supported that court’s order but whether the evidence before the [county] board was supportive of its action. In proceedings of this nature, the superior court is not the trier of fact. Such is the function of the [county] board.
Coastal Ready-Mix, 299 N.C. at 626, 265 S.E.2d at 383.
When a party alleges the Board of Commissioners’ decision was based upon an
error of law, both the superior court, sitting as an appellate court, and this Court
reviews the matter de novo, considering the matter anew. Humane Soc’y of Moore
Cty., Inc. v. Town of S. Pines, 161 N.C. App. 625, 629, 589 S.E.2d 162, 165 (2003)
(citation omitted).
When a party challenges the sufficiency of the evidence or when the Board’s
decision is alleged to have been arbitrary and capricious, this Court employs the
whole record test. “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.” SBA, Inc., 141 N.C. App. at 26, 539
S.E.2d at 22 (citations and internal quotation marks omitted). “The reviewing court
should not replace the [Board’s] judgment as between two reasonably conflicting
views; while the record may contain evidence contrary to the findings of the agency,
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this Court may not substitute its judgment for that of the agency.” Id. (citation and
IV. Analysis
A. Strata Solar’s Prima Facie Case
Petitioners first argue the superior court erred by affirming the Board’s
decision and asserts Strata Solar’s application for a conditional use permit was
supported by competent, substantial, and material evidence. We agree.
Our Supreme Court has stated:
Zoning regulations are in derogation of common law rights and they cannot be construed to include or exclude by implication that which is not clearly their express terms. It has been held that well-founded doubts as to the meaning of obscure provisions of a Zoning Ordinance should be resolved in favor of the free use of property.
Yancey v. Heafner, 268 N.C. 263, 266, 150 S.E.2d 440, 443 (1966) (citation and
quotation marks omitted); see also Vance S. Harrington & Co. v. Renner, 236 N.C.
321, 324, 72 S.E.2d 838, 840 (1952) (“Every person owning property has the right to
make any lawful use of it he sees fit, and restrictions sought to be imposed on that
right must be carefully examined . . . .”); Lambeth v. Town of Kure Beach, 157 N.C.
App. 349, 354, 578 S.E.2d 688, 691 (2003) (“Zoning ordinances derogate common law
property rights and must be strictly construed in favor of the free use of property.”).
“When an applicant for a conditional use permit produces competent, material,
and substantial evidence of compliance with all ordinance requirements, the
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applicant has made a prima facie showing of entitlement to a permit.” Howard v. City
of Kinston, 148 N.C. App. 238, 246, 558 S.E.2d 221, 227 (2002) (citation and internal
quotation marks omitted). Material evidence is “[e]vidence having some logical
connection with the facts of consequence or the issues.” Black’s Law Dictionary 638
(9th ed. 2009). Substantial evidence is “evidence a reasonable mind might accept as
adequate to support a conclusion.” Humane Soc’y of Moore Cty., 161 N.C. App. at 629,
589 S.E.2d at 165 (citation and quotation marks omitted). “It must do more than
create the suspicion of the existence of the fact to be established. It must be enough
to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion
sought to be drawn from it is one of fact for the jury.” Humble Oil & Ref. Co. v. Bd. of
Aldermen, 284 N.C. 458, 471, 202 S.E.2d 129, 137 (1974) (citation, internal quotation
marks, and alterations omitted).
Our Supreme Court held:
When 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.
Id. at 468, 202 S.E.2d at 136 (citations omitted).
“[W]hether competent, material and substantial evidence is present in the
record is a conclusion of law.” Clark v. City of Asheboro, 136 N.C. App. 114, 119, 524
S.E.2d 46, 50 (1999) (internal quotation marks omitted). “[W]e review de novo the
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initial issue of whether the evidence presented by [P]etitioner[s] met the requirement
of being competent, material, and substantial. The [county’s] ultimate decision about
how to weigh that evidence is subject to whole record review.” American Towers, Inc.
v. Town of Morrisville, 222 N.C. App. 638, 641, 731 S.E.2d 698, 701 (2012), disc.
review denied, 366 N.C. 603, 743 S.E.2d 189 (2013). See also SBA, Inc. v. City of
Asheville City Council, 141 N.C. App. 19, 23-29, 539 S.E.2d 18, 20-24 (2000)
(determining petitioner did not present sufficient evidence under de novo review and
employing whole record test to find respondent properly weighed the evidence before
it).
As discussed supra, the Ordinance requires an applicant to meet four
conditions prior to issuance of a permit. In order for Strata Solar to make a prima
facie showing of entitlement to a conditional use permit, it was required to present
competent, substantial, and material evidence to meet the four conditions
enumerated in the Ordinance. There is no dispute on appeal that Strata Solar’s
evidence met Conditions (1), (2), and (4) of the Ordinance. We focus our analysis on
Condition (3).
We first consider whether Strata Solar made a prima facie showing of
entitlement to a conditional use permit on Condition (3). At the hearings on 2 and 16
December 2013, the Board of Commissioners heard evidence in favor of and against
the application for the conditional use permit for the proposed solar farm.
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Strata Solar produced “evidence that a solar farm would not emit noise, odors,
or generate traffic, things that are considered to affect or reduce value to neighboring
properties.” Strata Solar presented the testimony and report of Richard Kirkland
(“Mr. Kirkland”), a licensed and certified real estate appraiser, who has achieved the
National Appraisal Institute’s highest designation as a Member of the Appraisal
Institute (“MAI”). Mr. Kirkland was tendered and admitted as an expert witness
without objection, and testified the proposed solar farm would be in harmony with
the area and its presence would not substantially injure the value of adjoining or
abutting properties.
Mr. Kirkland’s testimony was based upon his market review and analysis of
paired and matched sales of real property, which adjoin a solar farm, in order to
determine whether the solar farm’s presence impacted the value of the adjoining or
abutting properties. Mr. Kirkland specifically examined sales of homes in the Spring
Garden subdivision, located in Goldsboro, North Carolina. Mr. Kirkland analyzed
five sales in Spring Garden— two of which had occurred since the announcement of
the solar farm, and three of which occurred after the solar farm was constructed. Of
these five homes, four of them “back up to,” i.e. “adjoin or abut,” the property hosting
the solar farm.
Mr. Kirkland explained the results of the matched pair data analysis
demonstrated the properties sold for similar prices both before and after the
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construction of the solar farm. Mr. Kirkland stated: “The prices being paid for are
pretty much what the builder is asking.” Based on these results, Mr. Kirkland
testified, in his professional opinion, that proximity to a solar farm did not have a
negative impact upon the value of the adjoining or abutting property.
Mr. Kirkland acknowledged the average value of homes in Spring Garden are
$220,000.00 to $240,000.00, while the houses located within one mile of Strata Solar’s
proposed solar facility average more than $460,000.00. Mr. Kirkland testified he also
“looked at some property in Chapel Hill,” where a home which was adjacent to a solar
farm was under contract for approximately $750,000.00, within the same price range
of the homes in the Sailview subdivision.
Strata Solar also submitted into the record evidence the sworn affidavit of Mr.
Kirkland. In his affidavit, Mr. Kirkland attested, in his professional opinion, “the
proposed solar farm will not substantially injure the value of adjoining property and
is in harmony with the area in which it is located.” This expert testimony and
affidavit were not objected to, were properly admitted into evidence, and constitute
competent, material, and substantial evidence to support a prima facie showing of
Strata Solar’s compliance with Condition 3 of the Ordinance and entitlement to the
permit.
Strata Solar also elicited testimony from Damon Bidencope (“Mr. Bidencope”),
another licensed and certified real estate appraiser, who had also achieved the MAI
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designation. Mr. Bidencope testified the Sailview subdivision was designed and
landscaped to form “an insulated enclave,” which is isolated from other properties
and developments in the area. He also testified the proposed solar facility would
likely not be visible to those traveling on Webbs Road, or by residents or visitors from
within the Sailview subdivision, due to the multiple layers of landscaping and fencing
surrounding the proposed solar farm.
Mr. Bidencope testified he reviewed seven different solar farms in and around
the area “because we were also trying to look and locate information that showed a
significant or any deleterious effect on properties. We were unable to find it in our
research.”
The Board found Strata Solar had met its “burden of production” but “found
the evidence unpersuasive.” The Board denied the conditional use permit and
concluded Strata Solar failed to satisfy Condition (3) — that the use would not
substantially injure “the value of adjoining or abutting property.” The Board voted 2
to 1 that Strata Solar had failed to make out its prima facie case under Condition (3).
The superior court reiterated: “[T]here was not substantial, material and
competent evidence submitted by the Applicant, Strata Solar, to support a conclusion
that issuance of a conditional use permit would not substantially injure the value of
adjoining or abutting property.” In light of the evidence summarized above, we hold
that the superior court erred by upholding the Board’s conclusion that Strata Solar
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failed to present substantial, material, and competent evidence to make a prima facie
showing it was entitled to issuance of the conditional use permit.
The record shows Strata Solar produced substantial, material, and competent
evidence to establish its prima facie case of entitlement for issuance of the conditional
use permit. We reverse that portion of the superior court’s order, which affirmed the
Board’s decision that Strata Solar had failed to present substantial, material, and
competent evidence to establish a prima facie case of meeting Condition (3) to
warrant issuance of the conditional use permit.
B. Commissioner Martin Oakes’ Participation and Improper Burden of Proof
1. Commissioner Oakes’ Participation
Petitioners argue the Board erred by allowing Commissioner Oakes to
participate in the Board’s vote on remand, because he was not on the Board when it
rendered its original decision to deny issuing Strata Solar’s conditional use permit.
We disagree.
In Brannock v. Zoning Bd. of Adjustment, 260 N.C. 426, 132 S.E.2d 758 (1963),
the petitioners argued a special use permit was improperly granted because, inter
alia, the membership of the Zoning Board of Adjustment changed between the
original hearing and the final approval of the application. In a per curiam opinion,
our Supreme Court affirmed the grant of the special use permit because “[t]he new
members had access to the minutes and records of the various hearings and the
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required majority participated and joined in all decisions.” Id. at 427, 132 S.E.2d at
759.
Here, although the addition of two new Board members had changed the
membership composition of the Board from the time of the initial hearings in
December 2013 to the time the Board reviewed the matter on 16 March 2015 after
remand, both new Board members had an opportunity to read and review all of the
evidence previously considered. Commissioner Oakes stated he “reviewed the entire
record of the prior proceedings” before participating in the 16 March vote.
The change in Board membership composition had no effect upon Petitioners
or Strata Solar’s ability to present its arguments in favor of issuance of the
conditional use permit. See Cox v. Hancock, 160 N.C. App. 473, 483, 586 S.E.2d 500,
507 (2003) (holding “access to the minutes and exhibits from the earlier meeting”
assured petitioners were provided with due process and change in Board membership
had no effect on petitioners’ ability to present arguments).
Petitioners have failed to show any prejudice by new Commissioner Oakes’
participation in the hearing and vote on remand. See Baker v. Town of Rose Hill, 126
N.C. App. 338, 342, 485 S.E.2d 78, 81 (1997) (holding petitioners failed to show
prejudice where four of five members of Town Board voted in favor of resolution to
issue conditional use permit). This argument is overruled. The superior court’s
ruling on this issue is affirmed.
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2. Improper Burden of Proof
Petitioners argue an improper burden of proof was imposed and their Due
Process rights were violated because Commissioner Patton stated he was voting
against issuing the permit because the applicant did not prove its case “beyond a
doubt,” and Commissioner Oakes and the Board’s findings of fact stated “[a]lthough
[Strata Solar] did meet its burden of production and provided evidence as to this
element, we found the evidence unpersuasive.” We review this alleged error of law
de novo. Westminster Homes, Inc. v. Town of Cary Zoning Bd. of Adjustment, 140 N.C.
App. 99, 102, 535 S.E.2d 415, 417 (2000) (“If a petitioner contends the Board’s decision
was based on an error of law, de novo review is proper.”), aff’d, 354 N.C. 298, 554
S.E.2d 634 (2001).
The above-mentioned statements were made during the Board’s 16 March
2015 deliberations upon remand from the superior court. The transcript of the 16
March deliberations and the record before us support Petitioners’ argument that the
Board’s decision was based upon holding Strata Solar to an improper burden and
legal standard. The superior court concluded “there were no procedural errors in the
Board of Commissioners’ decision on remand” and Commissioner Patton’s statement
“does not suggest to the Court that he applied the wrong legal standard, but rather
that he merely used a layman’s term.”
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“This Court must examine the trial court’s order for error of law just as with
any other civil case.” Tate Terrace, 127 N.C. App. at 219, 488 S.E.2d at 849 (citation
and internal quotation marks omitted). Based on the evidence presented, the Board
found “the applicant has failed to meet its burden of proof. Although it did meet its
burden of production and provided evidence as to this element, we found the evidence
unpersuasive.” (emphasis supplied).
In Woodhouse v. Bd. of Comm’rs of Nags Head, 299 N.C. 211, 217, 261 S.E.2d
882, 887 (1980), our Supreme Court noted: “It is well settled [sic] that an applicant
has the initial burden of showing compliance with the standards and conditions
required by the ordinance for the issuance of a conditional use permit.” Our Supreme
Court further stated:
To hold that an applicant must first anticipate and then prove or disprove each and every general consideration would impose an intolerable, if not impossible, burden on an applicant for a conditional use permit. An applicant need not negate every possible objection to the proposed use. Furthermore, once an applicant shows that the proposed use is permitted under the ordinance and presents testimony and evidence which shows that the application meets the requirements for a special exception, the burden . . . falls upon those who oppose the issuance of a special exception.
Id. at 219, 261 S.E.2d at 887-88 (citations and internal quotation marks omitted).
Commissioner Patton’s reference to holding Strata Solar to a “beyond a doubt”
standard during the deliberations, in addition to Commissioner Oakes stating and
the Board’s order denying Strata Solar’s permit because it “failed to meet its burden
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of proof” tends to show the Board imposed an improper standard or failed to recognize
the requisite burden-shifting to the Intervenors-Respondents after Strata Solar had
made its prima facie case for entitlement. Humble Oil, 284 N.C. at 468, 202 S.E.2d at
136 (citations omitted).
Once Strata Solar established its prima facie case, the Board’s decision not to
issue the permit must be “based upon findings contra which are supported by
competent, material, and substantial evidence appearing in the record.” Id.
Here, the Board not only required Strata Solar to meet its burden of production
to make its prima facie case, but one decision-maker apparently imposed a “beyond a
doubt” burden of proof on Strata Solar. The Board also incorrectly implemented a
“burden of persuasion” upon Strata Solar after Strata Solar it presented a prima facie
case, rather than shifting the burden to the Intervenors-Respondents to produce
rebuttal evidence contra to overcome Strata Solar’s entitlement to the conditional use
The Board’s requirements are contrary to our Supreme Court’s holdings in
Humble Oil and Woodhouse, and as consistently applied in their progeny. See
Cumulus Broad., LLC v. Hoke Cty. Bd. of Comm’rs, 180 N.C. App. 424, 427, 638
S.E.2d 12, 15-16 (2006) (“When 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
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is entitled to it.” (citation and quotation marks omitted)); Howard, 148 N.C. App. at
246, 558 S.E.2d at 227 (“Once an applicant makes [its prima facie] showing, the
burden . . . falls upon those who oppose the issuance of the permit.” (citation omitted)).
The superior court’s order is reversed on this issue and remanded to that court
for further remand to the Board for additional quasi-judicial proceedings, utilizing
the proper legal procedures and standards, which hold Strata Solar and Intervenors-
Respondents to their respective burdens of proof. In light of this decision, we need
not address Petitioners’ remaining argument that the Board’s denial of Strata Solar’s
conditional use permit was not supported by competent, substantial, and material
evidence.
V. Conclusion
Strata Solar produced substantial, material, and competent evidence to
establish a prima facie case of entitlement to the issuance of a conditional use permit
by Lincoln County.
Petitioners have failed to carry their burden to show they were prejudiced or
denied Due Process by new Commissioner Oakes’ participation in the Board’s
decision upon remand. Petitioners’ argument that Strata Solar was held to an
improper burden of proof and that the Board failed to shift the burden of proof to the
Intervenors-Respondents is supported by the record.
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The order of the superior court, which upheld the Board’s denial of Strata
Solar’s application for a conditional use permit, is reversed and remanded with
further instructions to remand to the Board for further proceedings consistent with
this opinion. See N.C. Gen. Stat. § 160A-393(k)(3) (2015), Dobo v. Zoning Bd. of
Adjustment of Wilmington, 149 N.C. App. 701, 712-13, 562 S.E.2d 108, 115-16 (2002)
(Tyson, J., dissenting), rev’d per curiam, 356 N.C. 656, 576 S.E.2d 324 (2003).
AFFIRMED IN PART; REVERSED IN PART, AND REMANDED.
Judges BRYANT and INMAN concur.
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