Willis v. City of Southport Board of Adjustment , 129 N.C. App. 499 ( 1998 )

Judge Lewis

dissenting.

I agree with the majority that when this Court reviews decisions of the superior court regarding agency decisions we must

examine[] the trial court’s order for errors of law. The process has been described as a twofold task: (1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly.

Act-Up Triangle v. Commission for Health Services, 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997). However, I disagree with the majority’s conclusion that the superior court order in this case is insufficient to allow us to conduct a proper review.

Respondents assign error to the superior court’s findings that one of the Board’s findings of fact was arbitrary and that two of the Board’s conclusions of law were erroneous. The superior court’s factual and legal inquiries will be addressed separately.

I

The superior court found that the Board’s finding that the petitioners were operating a commercial parking lot was arbitrary and not supported by the record. The superior court’s decision was based on the absence of a definition for the term “commercial parking lot” in the Southport Zoning Ordinance and the absence of any “articulated and objective standard” used by the Board.

In determining whether an agency decision is arbitrary and capricious, a superior court must apply the “whole record” test. Amanini v. N.C. Dept. of Human Resources, 114 N.C. App. 668, 674, 443 S.E.2d 114, 118 (1994). “The ‘whole record’ test requires the court to examine all competent evidence (the ‘whole record’) in order to determine whether the agency decision is supported by ‘substantial evidence.’ ” Act-Up, 345 N.C. 699, 706, 483 S.E.2d 388, 392 (citations omitted). A decision is arbitrary and capricious if it is “patently in bad faith or whimsical in the sense that [it] indicate [s] a lack of fair and careful consideration or fail[s] to indicate any course of reasoning and the exercise of judgment.” Act-Up, 34 N.C. 669, 707, 483 S.E.2d 388, 393 (quoting Comr. of Insurance v. Rate Bureau, 300 N.C. 381, 420, 269 S.E.2d 547, 573 (1980)).

The superior court’s analysis in this case certainly indicates that the superior court used the whole record test, because the court examined the basis of the Board’s decision rather than substituting its own view. Furthermore, the superior court order states that the Board’s finding is not supported by the record. Although the use of the words “whole record” would make the court’s analysis clearer, I do not believe that any magic words are or should be required where the court’s standard of review can be determined by examining the order. Because it is clear from the order in its entirety that the superior court employed the correct standard of review, I believe that this court should go on to determine whether the court did so appropriately.

II

I turn now to the superior court’s determination that the Board’s conclusions of law were erroneous. A de novo review is the proper scope of review where a superior court examines an agency’s conclusions of law. Amanini, 114 N.C. App. 668, 674, 443 S.E.2d 114, 118. A de novo standard requires the reviewing court to “consider the question anew as if not considered or decided below.” Beauchesne v. University of North Carolina at Chapel Hill, 125 N.C. App. 457, 462, 481 S.E.2d 685, 689 (1997).

In its order the superior court states, “In determining errors of law, a Superior Court may substitute its judgment as to conclusions of law.” After stating the issues of fact and law, the superior court’s order states, “Based on a review of the stipulated record in this matter, the conclusions of the Board of Adjustment are erroneous and not supported by the record.”

This language is sufficient to demonstrate that a de novo standard of review was applied. The superior court’s reference to the record does not imply that the whole record test was employed. The superior court must examine the record in order to review the issues de novo. It should be expected that, in conducting a de novo review, the superior court would refer to the record.

Furthermore, even if the superior court had not conducted a de novo review, it would still be appropriate for this Court to do so. In re Appeal by McCrary, 112 N.C. App. 161, 165, 435 S.E.2d 359, 363 (1993). Our ability to reach the second prong of the Act-Up analysis is automatic where a de novo review, rather than the whole record test, is appropriate. If the whole record test applies and the superior court did not employ it, then this Court would not be able to properly review the superior court’s actions. The majority correctly treats the question of whether the superior court employed the whole record test as a threshold matter. However, under a de novo review, this Court must review the errors of law anew, as if not decided below and it is, therefore, unnecessary to determine whether the superior court employed the de novo review standard. Once this Court has .determined that a de novo review should have been applied, we may proceed to conduct that review ourselves. Thus, I believe that this Court should go on to examine the Board’s legal conclusions as well as the Board’s factual findings discussed above.

The superior court’s order certainly could have been clearer. Ideally, every order would expressly state the standard of review employed. However, where the standard of review employed by the superior court can be determined from an examination of the order I see no reason to delay the resolution of a case. Our review should not be stalled merely because the order below did not set out the precise words that we would prefer to see. I believe that the majority’s opinion is unduly critical and requires too much of the trial court in this case.

For the reasons discussed above, I must respectfully dissent.