Agenda - Planning Commission - 12/01/2016

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Zoning Bulletin October 10, 2016 1 Volume 10 1 Issue 19 F Conditional Use Permit—Board of Commissioners denies conditional use permit application, finding j applicant failed to show entitlement "beyond a reasonable doubt" Applicant argues Board applied improper. burden of proof for permit Citation:Dellinger a Lincoln Count); 789 S.E.2d 21 (N.C. Ct.App. 2016) NORTH CAROLINA(07/19/16)—This case addressed the issue of the r burden of proof required of an applicant for a conditional use permit. The Background/Facts: Gary Dellinger,Virginia Dellinger, and Timothy S. Dellinger(the"Dellingers") owned three tracts of real property in Lincoln County (the "County"). The Dellingers' property totaled approximately 54 acres. In May 2013, Strata Solar, LLC ("Strata") contracted with the Del- lingers to lease a portion of the property for the installation and operation of a solar energy facility.Strata proposed to construct the solar energy facility on a 35.25-acre portion of the property. The Dellingers'property was zoned for residential-single family use("R- TF")under the County's Unified Development Ordinance(the"Ordinance"). Under the Ordinance a solar farm was a permitted use on properties in the R-SF zoning classification upon grant of a conditional use permit ("CUP"). Pursuant to the Ordinance,in order for Strata to obtain the CUP to operate the solar energy facility,they had to meet four conditions:(1)it would not"materi- ally endanger the public health or safety";(2)it would meet all required condi- tions and specifications; (3) it would not "substantially injure the value of adjoining or abutting property"; and (4) "[t]he location and character of the use,if developed according to the plan as submitted and approved, [would]be in harmony with the area in which it [was] to be located and [would] be in general conformity with the approved Land Development Plan,for the area in question." In July 2013, Strata filed its CUP application with the County.Eventually, the County Board of Commissioners (the "Board") voted to deny Strata's CUP application.Although the Board had concluded that Sirata met the first two conditions for a CUP, the Board found that Strata failed to meet the third and fourth conditions. The Dellingers appealed.The Superior Court remanded back to the Board, which on remand again denied the CUP based on its failure to meet condition 3 for a CUP.The Board concluded that Strata failed to prove it was entitled to the CUP"beyond a doubt."The Board concluded that the evidence presented by Strata was"unpersuasive." The Dellingers again appealed. On that appeal,the Superior Court affirmed the Board's denial of the CUP. i; 1 ©2016 Thomson Reuters 7 k G, k3 r • I e P