Solar Update: Hearing Requested To Argue County’s Motion To Dismiss Lawsuit
Luke Roberts, Star Editor
The saga surrounding Irwin County’s solar ordinance is ongoing, as a recent filing was made by the petitioner, Carl Hutchinson, this after the county recently requested for Hutchinson’s lawsuit to be dismissed. Hutchinson’s attorney, David A. Rose of Valdosta, continues to argue that the county’s solar ordinance is unconstitutional despite the fact that the ordinance is nearly identical to other adopted solar ordinances throughout the area. To see the lawsuit in its entirety, please view the documents linked below.
LINKS:
• PETITION FOR REVIEW AND DECLARATORY RELIEF OF BOARD DECISION
• RESPONDENT’S MOTION TO DISMISS AND BRIEF IN SUPPORT
• PETITIONER’S RESPONSE TO RESPONDENT’S MOTION TO DISMISS
A BRIEF HISTORY
Hutchinson, who is seeking to be elected as County Commission Chairman, filed a lawsuit in Irwin County Superior Court earlier this year asking for the county’s solar ordinance to be “rescinded.” Hutchinson, who owns property on Bethlehem Church Road adjacent to property that is the site of a proposed solar farm, claims that the solar ordinance “will impact property values of impacted citizens without compensation, and no study has hence been offered nor conducted to ascertain the financial impact to citizens or the county with regard to any solar industry permitted by the ordinance.”
The suit also claims “the Irwin County Board of Commissioners received comments but did not address them in a public meeting, nor in writing to proponents of the comments,” and that “there was nothing presented that indicates any comments or concerns by the concerned citizenry were even addressed.”
The county responded to the suit, along with a petition for declaratory relief and a motion to dismiss the suit, on March 28, 2024.
Nicholas Tinsley, an attorney for Hall Booth Smith who is representing the county, listed nine “defenses” to Hutchinson’s lawsuit, including one that states, “Petitioner has no standing to bring the claims in Petitioners Petition.”
The county’s response also states, “Respondent [the county] prays that it be dismissed with all costs cast against the Petitioner [Hutchinson].”
RECENT FILING
In the most recent filing, the attorney for Hutchinson claims that his client “has been harmed by the passing of the [solar] ordinance, though no specific instances of harm were laid out in the response.
Hutchinson contends “the ordinance is not substantially related to public health and safety, and presents a significant detriment to himself and others, and is a violation of the Takings Clause. His attorney argues that the Irwin County Comprehensive Plan “states at Section 5.4 that a solar policy should strongly consider the economic, cultural, and scenic value of its farmland and prime farmland before allowing solar developments in Agicultural Zoning,” and that the “Board has not followed the Comprehensive Plan.”
However, Hutchinson’s response fails to mention that the Comprehensive Plan also states, “Irwin County and Ocilla should adopt, and adapt to local needs, the State of Georgia Model Solar Ordinance that determines how and where to site different types of solar projects,” which in effect the ordinance does.
The Comprehensive Plan also states “Well-planned Solar developments can be an asset to the community.”
It should be noted that the Comprehensive Plan, which was updated and approved in February 2024, “provides guidance for a variety of community topics, including economic development and regional cooperation; however, these plans mostly provide a roadmap for the physical development of the community.”
According to ACCG (Association of County Commissioners of Georgia), “A zoning ordinance [in this case, the solar ordinance] establishes the conditions under which land may be developed and used for particular purposes. It also contains a map that divides the jurisdiction into various districts for particular classes of residential, commercial, industrial, and other uses. A zoning ordinance specifies what types of development may take place in each zoning district of the jurisdiction. It stipulates the allowable size and height of structures and sets forth the requirements for lot size, setbacks, street parking, and other related considerations. A zoning ordinance is not a comprehensive plan or a land use plan, but it can be used to implement such plans by controlling how land is used.”
REQUEST
The most recent filing states that Hutchinson “believes that his claim has merit and requests that the Court deny the county’s Request to Dismiss, or, in the alternative, schedule a hearing to decide the matter.”
AS PREVIOUSLY REPORT
It should be noted that a significant factor supported by established case law related to the approval or denial of zoning ordinances in Georgia is that “a zoning ordinance is presumptively valid, and this presumption can be rebutted only by clear and convincing evidence. (Guhl v. Holcomb Bridge Road Corp., supra.)”
According to information obtained from the State Bar of Georgia, “The burden is on the plaintiff to come forward with clear and convincing evidence that the [present] zoning presents a significant detriment to the landowner and is insubstantially related to the public health, safety, morality, and welfare.
“Only after this initial burden is met must the governing authority come forward with justification for the zoning as reasonably related to the public interest. (Brown v. Dougherty County, 250 Ga. 658, 300 S.E.2d 509 (1983); Flournoy v. City of Brunswick, 248 Ga. 573, 285 S.E.2d 16 (1981); DeKalb County v. Flynn, 243 Ga. 679, 256 S.E.2d 362 (1979).
“If the plaintiff does not meet the initial burden of showing both significant detriment and insubstantial relationship to the public health, safety, morality and welfare, there is no need for the governing authority to present any evidence justifying the zoning.”
It should also be noted that the denial of an ordinance by a governmental authority (in this case the Irwin County Commission) for any reason that is not supported by “clear and convincing evidence” could result in litigation filed against the governmental authority.
In this case, the denial of the passage of the ordinance by the County Commission could result in the local property owners involved in the proposed construction of the solar farms and the solar companies themselves filing lawsuits against the county.
Due to established case law in various levels of judicial courts, including rulings by the Supreme Court, the overwhelming majority of legal experts agree that the denial of the passage of the ordinance would leave the county commission in a vulnerable position from a legal standpoint that could result in “a substantial loss of dollars” as a result of litigation.