WILMINGTON – In its efforts to reverse a decision that slammed the door on its face in Pender County, a California-based solar farm developer received some welcome news Wednesday.
READ MORE: Pender board roundly rejects massive $300M solar project
ALSO: Solar firm sues Pender County over denied permit
Attorneys for Coastal Pine Solar and Pender County met in chambers for nearly an hour before Superior Court Judge Dawn Layton rejected a motion the county filed in May to have Coastal Pine’s lawsuit thrown out.
Layton ordered the two sides enter mediation to settle the issue. Under state law, mediation is mandatory in civil cases.
“This is different because this suit doesn’t really involve money,” Pender County attorney Trey Thurman told PCD. “We’re not seeking any money from them — and they’re not offering any money to us.”
Instead, Coastal Pine wants a special-use permit to build its solar farm, which Pender County denied already last fall.
“I sincerely believe you can come to an agreement,’ Layton told the attorneys.
The lawsuit began in December after Coastal Pine Solar’s application for a special use permit was denied unanimously by the county commissioners in September 2022. The company owns a 6,587-acre wooded parcel north of Piney Woods Road and east of U.S. Highway 421. It had plans to clear its land and build a 2,300-acre solar farm, totaling $300 million.
The plan was to pneumatically drive solar panels into the ground that would power up to 50,000 homes on Duke Energy’s grid, roughly 200 megawatts.
After Pender County denied the permit, they also changed its zoning laws the next month to clamp down on solar farms coming to the area.
The county’s motion provided new evidence to justify its denial of a special-use permit, including an affidavit from Pender staff attorney Patrick Buffkin. Buffkin serves on the North Carolina Utilities Commission and stated in his affidavit that Coastal Pine needed to connect to a Duke Energy transmission line to power the solar farm.
However, that line is in need of upgrades, according to Buffikin, and cannot safely handle the amount of power the solar farm would need to operate. He said it would take roughly 18 months to correct.
According to attorney Thomas Terrell, Coastal Pine would have been required to do a transmission line study anyway: “It’s standard for all utility projects.”
The judge wasn’t convinced of the county’s argument and rejected it.
Layton already ruled last month that Coastal Pine had fulfilled three of the eight standards for special-use permits under county ordinances. On the other hand, she ruled Pender County witnesses failed to provide sufficient evidence and ordered the county to address the special use permit for Coastal Pine at its June 4 commissioners’ meeting.
The county had two weeks to present any findings to the court after that meeting.
The agenda stated there would be a public hearing after closed session for the special-use permit.
Thurman wrote in an email Monday: “There was not going to be a public hearing last week, no matter how many people came out.”
Essentially, the judge agreed to hear the filed motion from the county and commissioners were going into closed session at the meeting to discuss the case.
“Obviously, we couldn’t give effective notice,” he said at the meeting, seeing as the judge’s decision came in after the agenda was out. “We did try to notify some people; I spoke to some community leaders to let them know.”
Thurman said one person showed up but had no desire to speak publicly.
“We want to be transparent,” he added, “and we want the people of Pender County to know what’s going on and be part of the process.”
Whatever agreement Coastal Pine and Pender County reach in mediation would still have to be approved by the commissioners at a public hearing at its next meeting. PCD reached out to the commissioners. Chair Jackie Newton and commissioner Brad George didn’t respond by press. Commissioner Jerry Groves refused to speak on the issue.
The commissioners took issue with the size of the project out of the gate; the farm was to be built in a rural agriculture district and needed a special use permit to move forward. Newton called the solar farm a “utility-scale” light industrial project that didn’t belong in the rural part of Pender County.
Pender Planning Director Travis Henley, no longer with the county, said in September the solar farm was the largest solar farm project to land on his desk.
Duke draws power from eight solar facilities in Pender currently. Six are in the 5 megawatt range and two are larger. The Crooked Run solar development produces 70 megawatts and Innovative Solar 67 produces 34.
Before 2017, 5 megawatt farms on about 30 acres of land were the norm, but substantial enterprises are becoming the standard because the state’s largest utility company is looking for more efficient projects.
Henley said rural plots were the only ones large enough to place a project of that scale.
Several local residents spoke out against the Coastal Pines solar farm, alleging potential soil contamination at nearby farms, increasing flood risks due to timber loss and negative economic impacts. One resident said it would not create permanent jobs since all the workers would leave after the farm was built. Though representatives for Coastal Pine did not speak on job creation, they did rebut claims of negative economic and environmental impact.
Thursday Terrell said the job creation point is irrelevant when concerning the standards of a special-use permit. “That is not one the applicant has to meet under the county’s rules,” he said.
Coastal Pines is also claiming in the lawsuit the commissioners chose to ignore expert evidence, including the testimony of a former N.C. State University solar engineer and a planner on the project. For example, the panels would be galvanized steel coated in zinc which would not corrode to counter arguments of soil contamination.
The lawsuit claims, instead, commissioners based a decision of denial on “generalized fears,” such as leaching panels and noise and odor pollution, to misapply the zoning ordinance.
It also argues there was opinionated testimony. The company alleges then-commissioner Jimmy Tate, who resigned from his seat in January, participated in ex-parte, or outside communication, with local farmers before the hearing. Thus it’s claiming it influenced his vote against the special use permit.
“Instead of being impartial jurors, they have become party advocates,” Terrell said. “And you cannot be both at the same time.”
Wednesday’s ruling possibly moved up the timetable for a resolution.
Terrell, the attorney representing Coastal Pine, told Port City Daily he was satisfied with the order.
“The judge provided a path going forward for additional findings going on the record,” he said.
Port City Daily reached out to Coastal Pine’s parent company, Birch Creek Development for comments on the order for mediation, but did not respond by press.
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