Case Summary: Dellinger v. Lincoln County, N.C. App. No. COA18-1080 (2019)

 

By Kevin Hornik and Garrett Davis

N.C. Court of Appeals (i) further clarifies conditions which demonstrate bias by a quasi-judicial decision maker, and (ii) clarifies the burden of expert testimony required to overcome a prima facie showing of entitlement in quasi-judicial proceedings.

This case involves an application by several property owners (the “Petitioners”) for a conditional use permit (the “CUP”), permitting Strata Solar (“Strata”) to build a solar farm on a portion of the Petitioners’ properties. Several neighbors (the “Intervenors”) sought to intervene, arguing that the Lincoln County Board of Commissioners should deny the Petitioners’ CUP application on the grounds that the solar farm would substantially injure the value of adjoining or abutting properties. Petitioners argued that the Lincoln County Board of Commissioners and the superior court erred in denying the Petitioners’ motion to recuse a Commissioner from participating in the review of and decision on Petitioners’ CUP application where that Commissioner had advocated against the CUP prior to taking office and had presented his own evidence against the CUP after taking office.

With regard to the issue of the Commissioner’s bias, the Court found that the Commissioner had demonstrated bias against the CUP application at issue by: (i) expressing his opposition to the solar farm prior to being elected to the Board of Commissioners; (ii) contributing financially toward the opposition of the CUP prior to being elected to the Board of Commissioners; and (iii) advocating for the denial of the CUP after being elected to the Board of Commissioners, including the presentation of his own ten pages of evidence attempting to rebut the Petitioners’ prima facie showing of entitlement to the CUP.

It is worth noting that Judge Berger’s separate concurring opinion suggests that a line should be drawn between an elected official’s actions prior to taking office and his or her actions after taking office. Judge Berger suggests that an elected official’s position or statements prior to taking office should not be sufficient, without more, to demonstrate bias after the official has taken office because such a conclusion by the Court would curtail the ability of private citizens and candidates to participate in the marketplace of ideas.

With regard to the evidentiary question, the Court found that: (i) expert testimony or reports indicating that an obstructed view caused by a particular use is not sufficient to demonstrate that the use, as opposed to the obstructed view, will harm adjacent or abutting property values; (ii) ad valorum tax records are not competent to establish the market value of real property; (iii) testimony regarding a single market transaction is insufficient to rebut otherwise unanimous market data; and (iv) the personal opinion of a qualified expert, without specific supporting evidence, is insufficient to impeach or rebut quantitative analysis.