In Innovative Solar 55, LLC v. Robeson Cty, the Court of Appeals recently held that a conditional use permit (CUP) needed to construct a solar farm was wrongfully denied by the local County Commissioners and ordered the permit to be issued. Smith Moore Leatherwood was honored to represent the solar farm developer in this case. Key highlights from the Innovative Solar opinion are set forth below.

  • Prima Facie Case. Under established law, when a proposed conditional use is expressly contemplated by the zoning ordinance, the applicant can establish a prima facie entitlement to the CUP permit. The opinion suggests that the prima facie showing may be initially met by simply showing that the application complies with specific CUP ordinance criteria. (Slip op. at 13).
  • CUP Applicant’s Burden Of Production. The opinion reaffirms that solar farm applicants only have only a burden of production, and not a burden of proof. (Slip op. at 11). The opinion applies this burden of production to all the ordinance’s requirements and conditions (i.e., both the specific and general CUP criteria). (Slip op. at 11). As a general matter, applicants need evidence (often in the form of expert testimony, as discussed below), under oath – more than just the narrative statements of the person signing the application — to satisfy their burden of production and place themselves in the position of the applicant in the Innovative Solar case.
  • CUP Opponent’s Burden. Once the applicant’s burden of production is met, the burden of rebutting the prima facie case and “establishing” that approval of the CUP would endanger public health, safety, and welfare falls on the CUP opponents. (Slip op. at 14). In using the phrase “burden of establishing,” the opinion suggests that the opponents’ burden is one of persuasion, and not merely a burden of production that could shift the burden of proof back to the solar farm applicant. Whether and how this distinction plays out in future opinions remains to be seen.
  • Competent Versus Substantial Evidence. By statute, a CUP opponents’ burden can only be met through material, competent, and substantial evidence. Innovative Solar is different from most previous CUP appellant decisions because whether the opponents’ evidence had risen to the level of “substantial evidence” was not the key inquiry. Instead, Innovative Solar hinged on whether the opponents had presented competent evidence that could have supported the CUP decision.
  • Certain CUP Criteria Can Only Be Established Or Rebutted Through Expert Testimony. In 2010, the General Assembly amended N.C. Gen. Stat. § 160A-393(k)(3)(c) to prohibit lay testimony from being used to establish the impact of a CUP on property values and traffic safety. Because the solar farm opponents presented no expert testimony, the Innovative Solar court determined that the CUP was improperly denied based on unsupported property value and traffic fears.

Moreover, section 160A-393(k)(3)(c) contains a catch-all provision that prohibits lay testimony from being used to establish “matters about which only expert testimony would generally be admissible.” In a case of first impression, Innovative Solar held that safety concerns regarding solar farms could only be established through expert testimony—which the solar farm opponents had not presented. Under this opinion, CUP opponents who do not involve experts will have a much harder time justifying denial of a CUP application. On the other hand, CUP applicants should involve their own experts early on in the application process so that they will have the evidence needed to defeat any challenges to their CUP application.

  • Generalized Neighborhood Opposition To A Project Is Not Competent Evidence. Lay testimony that is based on nothing more than generalized, speculative, sentimental, personal, and vague fears cannot be considered in denying a CUP application. Innovative Solar reinforced this principle when it deemed opinion testimony that the solar farm 1) would be an “eyesore” 2) was visible from a particular location, and 3) was opposed by the surrounding neighborhood as incompetent and irrelevant.
  • Statewide Public Policy Favors Solar Energy. Finally, Innovative Solar explicitly recognized that the General Assembly’s adoption of a statewide, public policy favoring clean solar energy and solar energy farms. While the statewide policy’s impact on local zoning decisions is presently unknown, for zoning cases that present a close question, it could tip the balance in favor of allowing the CUP.