What happens when you would like to use your property for a use isn’t permitted under your current zoning restrictions? A recent case from the North Carolina Court of Appeals walks through the process, and clarifies the duties of zoning commissions and the burdens of proof for people that applying for conditional use permits. In Dellinger v. Lincoln County,¹ the Dellingers owned a 54 acre tract of land in Lincoln County on part of which Strata Solar, LLC wanted to operate a solar power facility. However, the land was zoned as residential-single family use. In order to get permission for the solar facility, the Dellingers and Strata Solar applied for a conditional use permit with the Lincoln County Planning Board. The planning board then sent the application to the Lincoln County Board of Commissioners, who held a series of quasi-judicial proceedings. After a series of denials and appeals, the Board denied the conditional use permit because one Commissioner found that Strata Solar did not prove its case beyond a doubt, and because the Commissioners found that [a]lthough [Strata Solar] did meet its burden of production and provided evidence as to this element, we found the evidence unpersuasive.

This is where the Board of Commissioners was wrong. First, it is important to note that the Supreme Court of North Carolina has stated that [z]oning regulations are in derogation of common law rights and they cannot be construed to include or exclude by implication that which is not clearly their express terms. It has been held that well-founded doubts as to the meaning of obscure provisions of a Zoning Ordinance should be resolved in favor of the free use of property.² This shows that while zoning ordinances may play an important role in the development of our cities and towns, the restrictions that they place on property owners must be well grounded and reasonable. In order to prove that you should be granted a conditional use permit, you must first make a prima facie case that you are entitled to such a permit. You make this case by producing competent, material, and substantial evidence of compliance with all ordinance requirements.³ In this case, Strata Solar produced expert testimony to show that they were in compliance with the ordinance. The Court of Appeals then held that the expert’s testimony was sufficient to constitute competent, material, and substantial evidence. Therefore, Strata Solar had made its prima facie case.

From there, if the commission wanted to prevent the issuance of the conditional use permit, the commission would have to hear evidence from those who are opposed to the permit. Such intervenors must submit competent, material, and substantial evidence to the contrary of the applicant’s evidence. From there, the commission can make it’s decision based on all of the evidence in the record. But the burden of proof on the applicant is not beyond a doubt, as the commissioners in this case wanted it to be. Here, no contrary evidence was presented, and the commission rejected the permit application solely based on an incorrect legal burden. The Court of Appeals therefore reversed the Commission’s decision and remanded it back to them for more proceedings.

If you or your business are facing a zoning commission and need advice navigating the waters of local ordinances, contact Miller Law Group for a consultation.

1. Dellinger v. Lincoln Cnty, No. COA15-1370 (2016).

2. Yancey v. Heafner, 268 N.C. 263, 266, 150 S.E.2d 440, 443 (1966).

3. Howard v. City of Kinston, 148 N.C. App. 238, 246, 558 S.E.2d 221, 227 (2002).