By Mark Darrough - March 9, 2020

BURGAW — A solar farm and its landowners are suing the town of Burgaw over a rezoning dispute, pitting the rights of property owners against the jurisdictional authority of local government.

Court documents and detailed town minutes recorded during a Board of Adjustment meeting last November outline a case that an attorney for the plaintiffs described as the town’s “excess of statutory authority.”

The town has maintained that it had such authority. After the Board of Adjustment voted to reaffirm the town’s denials of two site plans — each requesting an access road and electric lines across the Burgaw property to access a planned solar farm on the neighboring plot, which lies in the town of Saint Helena — the landowners took the matter to court after Burgaw refused to review an appeal.

Denials and refusal to hear an appeal

William McLean and his sister, Melanie Bradshaw, own 93 acres of land bisected by the boundary line separating Burgaw and Saint Helena to the south. On the 59-acre Saint Helena side of the property sits a large solar energy farm owned and operated by a company called GreenGo Energy. Behind the existing solar farm is a section of the Saint Helana plot, approved by the Saint Helena Village Council, for another solar farm to be operated by Scotch Bonnet Solar, LLC. Directly to the west is a smaller, neighboring plot that is also planned to be home to a portion of solar panels.

On the adjoining 34-acre lot in Burgaw, however, the company was denied such use because the land sits within a low-density residential zoning district, which does not allow for any industrial facilities including solar farms. When Scotch Bonnet attempted to rezone the property to I-1 Light Industrial, they were denied.

The Scotch Bonnet farm was originally approved as a public necessity by the North Carolina Utilities Commission in 2016 to produce five megawatts of solar power at a cost of $7.8 million, with plans to sell the output to Duke Energy. But the rezoning denial compelled Scotch Bonnet to reduce the size of the farm and build entirely within the jurisdiction of Saint Helena.

An aerial image of the two properties, taken in June 2019, compared to a map submitted to the court. The Scotch Bonnet solar farm will be built to the west of the current solar farm, which can be seen in the image (center-bottom) in long black rows of solar panels. (Image on left courtesy Google Earth)

Last August, the company submitted plans to use its Burgaw property instead for an access road, underground and above-ground electrical lines, utility poles, and a temporary construction material ‘laydown’ yard to store materials during construction of the solar farm. But they were again denied by the Planning Department, who stated in a letter that “components” of a neighboring solar farm are also not allowed in the R-20 district, according to attorneys for the solar company and the landowners.

McLean and Bradshaw, who also own more than 1,800 acres of land between Burgaw and Hampstead surrounding Highway 210, submitted a second site plan themselves — modified to include only the access driveway and underground utilities. This was also refused. After appealing to the Board of Adjustment on November 21, the board voted four-to-one to reaffirm the denial.

The town refused to review the appeal “despite the petition being timely received” and all necessary documents and filing fees submitted, according to the attorneys. So the landowners and solar company turned to the court instead, filing a claim against the town on February 14 asking for it to review the case and reverse the town’s denial of both site plans.

Interpretations of the ordinance

The plaintiffs’ attorneys, from the Raleigh firm Nelson Mullins, argued that the town had operated beyond its authority by referencing the use of neighboring property — outside of its jurisdiction — when considering its denials.

That argument rested on both sides’ interpretation of the town’s Unified Development Ordinance, which defines a solar farm as an energy system that “generates electricity from sunlight to a wholesale electricity market.” Furthermore, it defines a solar energy system as “the components and subsystems required to convert solar energy into electric or thermal energy suitable for use.”

“The area of the system includes all the land inside the perimeter of the system, which extends to any fencing,” the UDO states.

The lawsuit states that during the November hearing, the planning director “admitted that no part of a solar energy system — that portion of a solar facility within the perimeter fencing — was proposed to be within the jurisdiction of the Town of Burgaw.”

Deputy town clerk Kim Rivenbark, who at the time of the initial denial was acting as the interim planning director, testified to the board during the hearing.

“Which part of the laydown yard, the utility lines, or the access drive is a component or subsystem that is required to convert solar energy into electric or thermal energy?” attorney Brett Hanna asked her, according to minutes of the hearing.

“Objection,” replied town attorney Zach Rivenbark. “She’s not an expert on solar energy.”

She responded that, in her opinion, the electric lines, driveway, and laydown yard were components of a solar farm; but she also confirmed that she looked to the ordinance’s definitions of a solar farm and solar energy system when making her determination.

She argued that the electric lines are “required to make a solar farm work” by getting power to public utility transfer points, that the driveway would allow access to the solar farm, and that the laydown yard would allow for the construction of a solar farm, “so [the yard] is therefore required to be in existence for a solar farm to be in existence.”

When asked by Hanna to read the town’s definition of a solar energy system, Kim Rivenbark said they were “components and subsystems required to convert solar energy into electric or thermal energy suitable for use.”

“Which part of the driveway is required for that?” Hanna responded.

She said it was to allow access to the farm, to which Hanna asked, “What does access have to do with converting solar energy to electricity?”

“I don’t know how to answer that,” she responded, and also confirmed that the entire solar energy system — as defined by the town to be within the perimeter fencing — was, in fact, inside the fencing on the Saint Helena property.

The lawsuit argues that Kim Rivenbark was unqualified to deny the initial site plan because she failed to articulate how a road, electrical lines, or a laydown yard would be used to convert light to energy for use, and because the town attorney stated that she was not an expert on solar energy.

‘What are the rights of a property owner in Burgaw?’

Before the board made its vote, the one member who voted in favor of the solar farm’s proposals, Louis Davis, argued that the case “brings a light in some areas where we need to be a little bit more defined in what we’re saying” concerning permitted land uses.

“[W]e know solar farms are not permitted in this R-20 [zoning district],” Davis said. “But yet solar farms, or the permitted use of them, does not say anything about components.”

He said that a solar farm, as defined by town law, “is not in the town of Burgaw” and urged other board members to consider the project entirely within the context of what is under Burgaw’s jurisdictional authority, and not how it related to property under Saint Helena’s authority.

James Malloy, despite voting to reaffirm the town’s denial of the site plans, said the town needs “to be careful not shut people down trying to … make their property prosperous.”

Hanna, the attorney representing the solar farm at the hearing, implored the board to ask themselves the fundamental issue at hand: “What are the rights of a property owner in the town of Burgaw?” The Board of Adjustment played an important role in interpreting and enforcing the town’s zoning ordinances, he said, but such authority is limited by the state legislature.

“Zoning ordinances are in denigration of property owners’ rights,” Hanna continued. “They’re in conflict with what the common law says we can do with our own property. And they are to be interpreted very limited, so that you don’t take an ordinance and expand what it means.”

“Mr. Hanna makes a very good argument, a feel-good argument, about property owners,” Mr. Rivenbark said in response. “We’re not here to discuss property rights tonight. We’re here to discuss one thing, really, and it comes down to whether Kim [Rivenbark] made the right decision, based on our ordinance.”

Because an access road and underground lines are accessories to a solar farm, he asked the board to uphold Kim Rivenbark’s decision — based on her interpretation of the ordinance — that a “solar farm couldn’t exist, or couldn’t work, without these uses.”

The court granted the town an extension of time to respond to the plaintiff’s petition to April 27. Both the town attorney and the landowners’ attorneys declined to comment due to the ongoing nature of the litigation.

[Read the article as published here.]

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