Background
In 2022, Coastal Pine Solar, LLC applied to Pender County for a special use permit (SUP) to construct a 2,360-acre solar farm on rural agricultural land. Under the county’s Unified Development Ordinance (UDO), “Other Electric Power Generation” facilities are a specially permitted use in rural agricultural zoning districts. To obtain an SUP in a quasi-judicial proceeding before the Board of County Commissioners, an applicant must produce competent, material, and substantial evidence that it meets each of eight specified standards.
Coastal Pine Solar presented six expert consultants at a September 2022 hearing—covering civil engineering, electrical engineering, mechanical engineering, appraisal, land use planning, and resident experience—alongside voluminous written materials. Eight long-time landowners and farmers testified in opposition, raising concerns about aesthetics, water runoff from clearing 2,300 acres of designated wetland-adjacent timberland, soil compatibility for solar panel foundations, and the project’s fit with the county’s agricultural character. The North Carolina Farm Bureau Federation appeared as amicus.
The Board unanimously denied the application on standards one through three. On the developer’s first appeal to superior court, the court found standards one through three were met and remanded for the Board to address standards four through eight. On remand, the Board again denied, finding standards four, five, seven, and eight not satisfied. The superior court affirmed. The developer appealed to the Court of Appeals, arguing errors in the standard of review applied and that its prima facie case was met.
The Court’s Holding
The Court of Appeals affirmed, holding that Coastal Pine Solar failed to establish a prima facie case under UDO standard five: “adequate utilities, access roads, drainage, sanitation or other necessary facilities have been or are being provided.” Because the developer could not satisfy this threshold requirement, the Board’s denial was proper and the court did not reach standards seven and eight.
When a county board of commissioners acts on an SUP application it sits in a quasi-judicial capacity, applying a two-step process: (1) determine whether the applicant has produced competent, material, and substantial evidence establishing a prima facie case of entitlement; (2) if a prima facie case is made, any denial must rest on contrary competent, material, and substantial evidence. The appropriate standards of review at the trial court level are de novo for whether a prima facie case or contrary evidence meets the legal threshold, and the “whole record test” for whether the board’s weighing of competing evidence is supported by substantial evidence.
Coastal Pine Solar’s evidence on utilities consisted of testimony that a 230-kilovolt Duke Energy transmission line crossed the site and that Duke Energy “would” construct the necessary substation and interconnect equipment. The court held this was speculative and vague—not competent or substantial evidence that adequate utilities “have been or are being provided.” The mere presence of nearby transmission lines, without evidence they could currently handle the project’s output, fell short. A developer’s assertion that a utility company will at some future point build the necessary infrastructure does not establish that adequate utilities are “being provided.”
On due process, the court rejected Coastal Pine Solar’s claim that two commissioners engaged in impermissible ex parte communications. A commissioner’s statement that he had “heard from a lot of them the last couple of days” did not demonstrate a fixed, predetermined commitment to deny the permit; pre-hearing knowledge alone does not establish disqualifying bias under N.C.G.S. § 160D-109(d). The court also noted a significant 2021 statutory change: N.C.G.S. § 160D-1402(i)(2) now preserves a party’s right to raise undisclosed ex parte communications on appeal even without having objected at the hearing, partially overruling prior case law that required contemporaneous objection.
Key Takeaways
- Solar developers in North Carolina must present specific, current evidence of grid interconnection capacity to satisfy the “adequate utilities” standard for a special use permit—not just the existence of a nearby transmission line or a promise that a utility company will eventually construct the needed infrastructure. Future-tense assertions about what Duke Energy “will do” do not satisfy “being provided.”
- The dual standard of review in NC SUP proceedings: de novo review governs whether a prima facie case is made (a legal conclusion); whole record review governs whether the board’s ultimate factual determination to grant or deny is supported by substantial evidence. Both the prima facie evidence and the contrary evidence must satisfy the same competent, material, and substantial threshold.
- Since 2021, under N.C.G.S. § 160D-1402(i)(2), parties with standing no longer forfeit the right to raise undisclosed ex parte communications as a due process violation merely by failing to object at the hearing—a significant change from pre-2021 practice.
- A trial court’s failure to explicitly apply de novo review when assessing contrary evidence does not automatically require remand if the result was nonetheless correct—the error must be harmful to warrant vacation.
Why It Matters
North Carolina’s rapid buildout of utility-scale solar has generated substantial friction with rural communities, and Coastal Pine Solar v. Pender County gives county boards a clear basis for demanding concrete evidence of grid-interconnection capacity before approving large solar projects. For renewable energy developers pursuing SUPs in NC, the practical lesson is straightforward: before the county board hearing, obtain a binding written interconnection agreement or written confirmation from the utility that the existing transmission infrastructure is adequate—or that adequate infrastructure is actively being constructed. Testimony that Duke Energy “will” do what’s needed is insufficient.
For land use attorneys representing counties and neighboring landowners, the opinion confirms that community opposition testimony—particularly on drainage, soil conditions, and land-use compatibility—can constitute the contrary competent evidence needed to uphold a denial even after the developer has presented a team of paid experts. And the NC Farm Bureau’s amicus participation signals that organized agricultural opposition to solar development on farmland is coordinated and will appear at every level of the review process.