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Currituck overruled on solar denial

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Reggie Ponder
Staff Writer

Thursday, December 28, 2017

CURRITUCK — The N.C. Court of Ap­peals last week over­turned Cur­rituck County’s de­nial of a pro­posed so­lar farm, agree­ing with the farm’s de­vel­op­ers who claimed the project should have been al­lowed to move for­ward.

In a unanimous ruling issued Dec. 19, a three-judge panel of the appeals court determined Currituck commissioners were wrong to deny a permit to Ecoplexus and Currituck Sunshine Farm, developers of a solar farm project on the former Goose Creek Golf Course property in Grandy.

Commissioners denied the permit for the Currituck Sunshine Farm facility in April 2016. After Ecoplexus and Currituck Sunshine Farm appealed the decision to Superior Court, Judge Jerry Tillett upheld the county’s decision in July.

In reversing Tillett’s decision, the three-judge panel agreed with the developer’s argument that “the opponents of the solar farm did not present competent or material evidence sufficient to overcome or rebut” the developer’s evidence in support of the application.

The court noted the Currituck Planning Board had found the solar farm would not endanger public health or safety, would not injure the value of adjoining or abutting properties and would be in harmony with the area. The planning board also found the project would be in harmony with the county’s land-use plan, and that it wouldn’t affect any public facilities.

The county’s stated basis for its denial of the permit included concerns about public health and safety related to drainage at the site and use of chemicals, especially herbicides; concerns about impact on adjacent property, including an observation that the solar farm “provides stark contrast to the adjacent subdivision;” and a finding that the solar farm would not be in conformity with the county’s 2006 land-use plan. That plan said the area near the former golf course was “intended for community centers that include a diversity of housing types and clusters of businesses to serve the immediate area.” 

But the appellate judges said the county’s denial of Ecoplexus’ permit was arbitrary. They said commissioners had “wholly ignored” the developers’ expert witness testimony on water management and other issues while “only considering” testimony of the project’s opponents.

Addressing the county’s expressed concern about herbicides, the court stated: “Very little testimony addressed the use of chemicals on the property. It appears this finding is based on the generalized fear of the board, as no competent evidence on the record supports the finding of hazardous levels of herbicide use.”

It was not clear Thursday whether the county will appeal the court’s ruling.

“The commissioners have not yet determined how they wish to proceed regarding the Ecoplexus ruling,” Currituck County Manager Dan Scanlon said.

A ban on further development of solar farms is currently in place in Currituck County, but county officials have said that the Ecoplexus project — if the courts allowed it to go forward — would be “grandfathered in,” meaning it could be built.

There are two solar energy facilities currently operating in Currituck, one in Shawboro, the other in Moyock. Neither is affected by the ban Currituck commissioners imposed earlier this year on development of future solar farm facilities.

Bobby Hanig, the chairman of the Currituck Board of Commissioners, said recently that commissioners plan to discuss lifting the ban on future solar farm projects — but not before stringent rules are in place that would direct how and where they are built. That discussion could happen at the board’s annual retreat next month, he said.

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