Opinion
No. COA02-813
Filed 15 April 2003 This case not for publication
Appeal by plaintiffs from order entered 10 December 2001 by Judge Robert H. Hobgood, Superior Court, Vance County. Heard in the Court of Appeals 19 February 2003.
Browne, Flebotte, Wilson Horn, P.L.L.C., by Daniel R. Flebotte, for plaintiffs. Royster, Cross Currin, L.L.P., by Dale W. Hensley, for defendants.
Vance County No. 00 CVS 1099
For the reasons given in Humble Oil Refining Company v. Board of Aldermen, 284 N.C. 458, 471, 202 S.E.2d 129, 138 (1974), we vacate and remand this matter to superior court for an order directing the Henderson Zoning Board of Adjustment to make factual findings that are sufficiently specific to enable review of the Board of Adjustment's decision.
In summary, the record reveals that the Henderson Zoning Board of Adjustment issued a special use permit without making any specific findings of fact to support its decision. Indeed, upon review by the superior court, sitting as an appellate court, the trial judge found,
(1) The decision rendered by the Board of Adjustment on November 7, 2000 was deficient in that the required findings of fact by the Board of Adjustment were merely a recitation of the standards imposed upon the Board of Adjustment for the issuance of a special use permit by the General Statutes of North Carolina and the City of Henderson Zoning Ordinances, rather than providing a detailed listing of the facts which the Board found from a preponderance of the evidence presented at the public hearing and which facts caused the Board of Adjustment to issue the special use permit to the Bank.
However, rather than remand the matter to the Board of Adjustment for the making of appropriate findings of fact, the superior court decided:
[T]hat although the Board of Adjustment did not make specific findings of fact, but merely recited the standards imposed upon the Board of Adjustment by statute and ordinance for the issuance of a special use permit; a review of the record as a whole, and specifically, the setting of the conditions upon the special use permit granted by the Board of Adjustment to the Bank, showed that the Board of Adjustment considered all of the evidence presented at the public hearings by the Petitioners, and there was substantial, competent and material evidence incorporated in the written record to support the issuance of the special use permit by the Board of Adjustment to the bank.
Thus, without any specific findings of fact showing the basis for the Board of Adjustment's decision, the superior court determined from a whole record review of the evidence that "the Board of Adjustment must have considered the evidence presented by the Petitioners, and there was substantial, competent and material evidence incorporated in the written record to support the issuance of the special use permit. . . ." This was an incorrect application of whole record review.
In conducting a whole record review, the reviewing court "must inspect all of the competent evidence which comprises the `whole record' to determine whether substantial evidence exists to support the administrative body's findings and conclusions. When the [reviewing court] applies the whole record test and reasonable but conflicting views emerge from the evidence, the court cannot substitute its judgment for the administrative body's decision." CGT Corporation v. Board of Adjustment of the City of Wilmington, 105 N.C. App. 32, 40, 411 S.E.2d 655, 660 (1992) (emphasis supplied).
In this case, the transcript of the Board of Adjustment proceedings reflects extensive evidence presented in support of, and in opposition to, the granting of the special use permit. Nonetheless, the superior court reviewed the public hearing testimony and determined that because the standards for the issuance of a special use permit were discussed and the Board of Adjustment imposed conditions on the special use permit, the Board of Adjustment must have considered the evidence presented by the petitioners. The superior court further found that "there was substantial, competent and material evidence . . . to support the issuance of the special use permit." This was an improper review by the superior court of a quasi-judicial decision that failed to "state the basic facts on which [the Board of Adjustment] relied with sufficient specificity to inform the parties, as well as the court, what induced its decision". Humble Oil Refining Co. v. Board of Alderman, 284 N.C. 458, 471, 202 S.E.2d 129, 138 (1974). Instead, the superior court should have vacated the permit's issuance and remanded to the Board of Adjustment for further proceedings. Accordingly, we remand this matter to the superior court for an order directing the Board of Adjustment to make factual findings that are sufficiently specific to enable review of the Board of Adjustment's decision.
Vacated and remanded.
Judges TIMMONS-GOODSON and LEVINSON concur.
Report per Rule 30(e).