# Riggings Homeowners, Inc. v. Coastal Resources Commission

> Court of Appeals of North Carolina · August 6, 2013 · 228 N.C. App. 630

URL: https://www.frixlaw.com/law-library/cases/8901695

## Case

- **Full name:** RIGGINGS HOMEOWNERS, INC. v. COASTAL RESOURCES COMMISSION OF THE STATE OF NORTH CAROLINA
- **Court:** Court of Appeals of North Carolina
- **Decided:** August 6, 2013
- **Citations:** 228 N.C. App. 630; 747 S.E.2d 301; 2013 N.C. App. LEXIS 818; 2013 WL 3991789
- **Precedential status:** Published
- **Opinion:** Concurring in part by Bryant
- **Judges:** Bryant, Hunter, McCullough, Robert
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8901695

## Opinion text

BRYANT, Judge,
concurring in part, dissenting in part.
The majority opinion reviews and affirms the order of the trial court reversing and remanding the denial of a variance to the North Carolina Coastal Resources Commission (“CRC”) for a new hearing. In so doing the majority determines that the trial court applied the correct standard of review to the issues before it, and that the trial court’s review of these issues was properly conducted. While I believe the trial court applied the correct standard of review and did so properly as to the first issue we review on appeal, I do not believe the trial court properly applied the correct standard of review to the second issue. Therefore, I concur in the portion of the majority opinion affirming the trial court’s review and determination as to the first variance factor. However, I must dissent from the portion of the majority opinion affirming the trial court’s analysis and ruling as to the fourth variance factor.
In the portion of its order regarding “The Issues for Appeal,” the trial court set out the standard of review it used for each issue as follows:
(I) Whether the CRC erred in its Conclusion of Law 3(b) that the Petition did not demonstrate that strict application of 15A NCAC 7H.1705 (a)(7) would result in an unnecessary hardship to the Riggings Property per N.C. Gen. Stat. 113A-120.1(a)(1). On this issue the Court used the de novo review standard.
(II) Whether the CRC erred in its Conclusion of Law 6 that the Petitioners did not meet the fourth requirement of a variance request that the granting of the variance is consistent with the spirit, purpose and intent of the rules, standards, or order; will secure public safety and welfare; will preserve substantial justice per N.C. Gen. Stat. 113A-120.1(a)(4); and that the decision of the CRC is *654 supported by substantial evidence. On this issue the Court used the Whole Record review standard on the issues of substantial evidence and de novo standard on the other issues.
(emphasis added).
As to Issue I, I agree that the trial court used the correct standard of review - de novo. However, as to Issue II, the trial court stated that it would use both whole record review and de novo review in analyzing the fourth variance factor. Based on the trial court’s analysis, almost all of which related to stipulated findings of fact from the Commission’s order as well as the trial court’s independent findings of fact, it appears the trial court used the whole record test exclusively. Notwithstanding the trial court’s statement that it would use both de novo and whole record review in analyzing the requirements of the fourth variance, I see nothing to indicate the trial court used anything other than whole record review. And, while I think the whole record review is the correct standard to use, I do not think the trial court used it correctly.
Under whole record review the trial court must examine the whole record to determine whether there is substantial evidence to support the agency’s decision. ACT-UP Triangle v. Commission for Health Servs., 345 N.C. 699, 706 , 483 S.E.2d 388, 392 (1997) (citation omitted). Unlike de novo review, under whole record review the trial court is not allowed to substitute its judgment for that of the agency. Meza v. Div. of Soc. Servs. & Div. of Med. Assistance of the N.C. HHS, 364 N.C. 61, 69-70 , 692 S.E.2d 96, 102 (2010). Even if, as here, the trial court could have reached a different result de novo, it “may not substitute its judgment for the agency’s as between two conflicting views[.]” Id.
Because it appears the trial court improperly substituted its own judgment on whole record review, I believe the decision was reached under a misapprehension of the correct standard of review. Further, a correct application of a whole record review to the facts of this case could result in a determination that there exists substantial evidence to justify upholding the agency decision.
Therefore, I would reverse and remand to the trial court to properly apply the correct standard of review.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8901695. Public record. Not legal advice.