BURGAW — A California-based solar farm developer wants to reverse a decision that shut it out of Pender County in September. To do so, it is preparing to go to court.
Thomas Terrell, an attorney with the major national law firm Fox Rothschild, filed a lawsuit on behalf of Coastal Pine Solar in Pender County on Nov. 30. Coastal Pine, a subsidiary of Birch Creek Development, wants to install a 2,360-acre solar farm in the midst of a 6,587-acre parcel of timberland.
READ MORE: Pender board roundly rejects massive $300M solar project
ALSO: Pender County is considering a zoning change that clamps down on new solar developments
The suit is seeking a verdict that the board’s decision was erroneous and that Coastal Pine will be awarded a permit. The complaint does not specify monetary damages, but lists “such other and further relief as is just and proper under the circumstances.”
The special permit Coastal Pine needs to build out its $300-million project was the subject of a public hearing on Sept. 19, after which the Pender County Board of Commissioners unanimously rejected the proposal. The board cited environmental concerns, increased flood risk due to eliminating timberlands and concluded it did not conform to the surrounding rural agricultural land.
The complaint claims commissioners disregarded expert evidence, based its finding on opinion testimony and “generalized fears,” and misapplied the county’s zoning ordinance. It also alleges a board member based his decision on communication that happened outside the public hearing.
“Evidence in zoning quasi-judicial matters is defined and treated the same as evidence in court,” Terrell wrote in a statement to Port City Daily. “Opinions are not considered evidence, and judges are not allowed to base their decision on unsworn testimony from the man on the street who has not heard the evidence and whose statements are not subject to cross-examination. In this case, one commissioner actually bragged that he violated the law and made his decision based on legally improper conversations outside the hearing.”
The outside, or ex parte communication refers to commissioner Jimmy Tate’s comment at the end of the hearing that he had heard from “a lot” of farmers leading up to the hearing.
The University of North Carolina School of Government has addressed this issue specifically with regard to awarding or denying special use permits.
It notes “some degree” of informality is permissible in quasi-judicial proceedings like public hearings, but ex parte communication that goes undisclosed can be evidence of bias or unfairness.
The Coastal Pine complaint also points to a comment from former commissioner George Brown. Brown said in the meeting he would like to hear from experts “from the other side of the fence,” as quoted in previous Port City Daily coverage.
The suit disputes Brown’s comments because Coastal Pine “had a vested right for its permit to be adjudicated under the law and policies that existed at the time the application was filed.”
The suit also contends it met all the standards required by the town’s ordinance, including providing substantial evidence and reiterated several points made during the hearing:
- That the development will not contribute to traffic, sound, smell or visual impact on the area because it would be ensconced behind the surrounding acreage, buffers and wild-life permeable fencing.
- Its experts testified there is no evidence of environmental impact, despite allusions to the contrary during the public hearing and the project would be required to comply with all environmental permitting regulations, including addressing flood risk.
- The county’s unified development ordinance only requires the applicant to show why the use is allowable according to the ordinance, and the special use was allowable when Coastal Pine applied.
- The developer offered a decommissioning plan, despite it not being required in the county’s current ordinance.
The suit notes the county has approved “many” solar farms in the past, which is true. Records obtained by PCD from Duke Energy show there are 20-, 30- and 40-megawatt farms which have won bids to supply the utility with clean energy.
However, the size of the Coastal Pine project dwarfs all of previous projects. If the farm comes to fruition, it will produce about 200 megawatts.
The issue of size was brought up several times during the public hearing two months ago. Commissioner Jackie Newton called it a “utility-scale” light industrial project that did not belong in the rural agricultural district.
At the close of the Sept. 19 meeting, Terrell told the board Coastal Pine is “entitled” to a permit based on its presentation.
Commissioners did not immediately respond to PCD’s requests for comment regarding the lawsuit. The board discussed the litigation in closed session during its Monday meeting. During the same meeting, the board approved an amendment to its zoning ordinance that nixes solar farms and other alternative forms of power generation as an allowable special use in the rural agricultural district altogether.
The only exception would be if an applicant applied for special zoning, which would allow the commissioners to place stipulations on a project. The move to change the ordinance originated with the commissioners after rejecting Coastal Pine and the modification sailed through the county planning board with a unanimous vote in November.
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