ROBERT WARD AND WIFE, BETTY
MOTICKA, JAMES R. McCULLOUGH
and wife, LAURA J. McCULLOUGH,
RALPH E. OUTCALT, and DAVID
KEITH JOHNSON,
Plaintiffs,
v
.
Vance County
No. 00 CVS 1099
MIKE C. INSCOE, C. RUXTON BOBBIT,
JR., JERRY PARRISH, DAVE
STALLINGS, DAVID E. MEEKINS,
BAILEY ALSTON, ARLINE RICHARDSON,
JOSEPH BROWN, RICHARD I. VAUGHN, JR.,
WILLIAM F. TAYLOR, FRANK M. HESTER, JR.,
GENE C. AYSCUE, RUSTY RENSHAW, GARRY
DAEKE, IN THEIR OFFICIAL CAPACITY
AS THE HENDERSON ZONING BOARD OF
ADJUSTMENT, W. BROWNELL WRIGHT,
ZONING ADMINISTRATOR OF THE CITY
HENDERSON, BRANCH BANKING AND
TRUST COMPANY,
Defendants.
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.
WYNN, Judge.
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, andthere 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.
CG&T 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 ofAdjustment 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).
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