Agenda - Planning Commission - 12/01/2016

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13i October 10, 2016 1 Volume 10 1 Issue 19 Zoning Bulletin Once again,the Dellingers appealed.They argued that their burden of proof on the CUP was not to prove they were entitled to it"beyond a reasonable doubt,"or to persuade the Board of their entitlement to the CUP. Rather, they argued that the evidence they presented in support of their CUP application had only to be supported by competent,material, and substantial evidence, which they argued they had shown. DECISION:Affirmed in part,reversed in part,remanded. The Court of Appeals of North Carolina agreed with the Dellingers.It found that the Board had applied an improper burden of proof on Strata in requiring a"beyond a doubt"standard.The court explained that an applicant for a CUP has "the initial burden of showing compliance with the standards and condi- tions required by the ordinance for the issuance of a [CUP]." The proper burden of proof for a CUP applicant, said the court, is to make a prima facie showing of entitlement to the permit by producing"competent, material, and substantial evidence of compliance with all ordinance requirements."The ap- plicant"need not negate every possible objection to the proposed use," but rather once they show that the proposed use is permitted under the ordinance and meets the requirements,the burden then falls on any opponents. k On appeal,there was no dispute that Strata's evidence met Conditions (1), � (2),and(4)of the Ordinance.Focusing on Condition(3),here,the court found that Strata met its burden and that its CUP application was supported by "substantial,material, and competent evidence to establish a prima facie case of entitlement to the issuance of [the CUP]." The court found that Strata produced"evidence that a solar farm would not emit noise,odors,or generate traffic, things that are considered to affect or reduce value to neighboring properties." Strata also produced the expert testimony of two certified real estate appraisers who testified that "the proposed solar farm would be in harmony with the area and its presence would not substantially injure the value of adjoining or abutting properties" and"would likely not be visible to those [neighbors], due to the multiple layers of landscaping and fencing sur- rounding the proposed solar farm." Once Strata established its prima facie case,the Board's decision not to is- sue the CUP had to be "based upon findings contra which are supported by competent material, and substantial evidence appearing in the record," said the court.The opponents failed to carry that burden,found the court.Thus,the Court of Appeals reversed the Superior Court's order upholding the Board's denial of the CUP,and remanded the matter to the Board. See also: Woodhouse a Board of Com'rs of Town of Nags Head, 299 N.C. 211, 261 S.E.2d 882(1980). See also: Cumulus Broadcasting, LLC a Hoke County Bd. Of Com'rs, 180 N.C.App. 424, 638 S.E.2d 12(2006). 'i t 1= i 8 ©2016 Thomson Reuters r r