In re Appeal of Seashell Co.

Court of Appeals of North Carolina

In re Appeal of Seashell Co.

213 S.E.2d 374, 25 N.C. App. 470, 1975 N.C. App. LEXIS 2294

CourtCourt of Appeals of North Carolina

DecidedApril 16, 1975

DocketNo. 753SC17

StatusPublished

Cited by2 cases

This text of 213 S.E.2d 374 (In re Appeal of Seashell Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Appeal of Seashell Co., 213 S.E.2d 374, 25 N.C. App. 470, 1975 N.C. App. LEXIS 2294 (N.C. Ct. App. 1975).

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Opinion

ARNOLD, Judge.

The question presented by this appeal is whether the trial court erred in concluding as a matter of law that the Review Board was required to issue Seashell a dredge and fill permit. The statute under which the proceeding was conducted provides that the “Department may deny an application for a dredge or fill permit upon finding: ... (5) that there will be significant adverse effect on wildlife, or fresh water, estuarine or marine fisheries.” G.S. 113-229 (e). Otherwise, the permit “shall be granted.” Id. The statute further provides that the “burden of proof at any hearing shall be upon the person or agency . . . at whose instance the hearing is being held.” G.S. 113-229 (g) (5).

The trial court did not rule on the Review Board’s conclusion that petitioner Seashell had “failed to carry the burden of proving that there will not be significant adverse effects on wildlife and marine and estuarine fisheries.” Since the record on appeal contains no narrative statement or transcript of the evidence offered before the Board, its conclusion is presumed to be correct. See Electric Membership Corp. v. Alexander, 282 N.C. 402, 192 S.E. 2d 811 (1972) ; Equipment Company v. Johnson, Comr. of Revenue, 261 N.C. 269, 134 S.E. 2d 327 (1964). The order of the trial court therefore must be vacated and the cause remanded for a new hearing on the record as a whole.

Vacated and remanded.

Chief Judge Brock and Judge Parker concur.

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ARNOLD, Judge.

The question presented by this appeal is whether the trial court erred in concluding as a matter of law that the Review Board was required to issue Seashell a dredge and fill permit. The statute under which the proceeding was conducted provides that the “Department may deny an application for a dredge or fill permit upon finding: ... (5) that there will be significant adverse effect on wildlife, or fresh water, estuarine or marine fisheries.” G.S. 113-229 (e). Otherwise, the permit “shall be granted.” Id. The statute further provides that the “burden of proof at any hearing shall be upon the person or agency . . . at whose instance the hearing is being held.” G.S. 113-229 (g) (5).

The trial court did not rule on the Review Board’s conclusion that petitioner Seashell had “failed to carry the burden of proving that there will not be significant adverse effects on wildlife and marine and estuarine fisheries.” Since the record on appeal contains no narrative statement or transcript of the evidence offered before the Board, its conclusion is presumed to be correct. See Electric Membership Corp. v. Alexander, 282 N.C. 402, 192 S.E. 2d 811 (1972) ; Equipment Company v. Johnson, Comr. of Revenue, 261 N.C. 269, 134 S.E. 2d 327 (1964). The order of the trial court therefore must be vacated and the cause remanded for a new hearing on the record as a whole.

Vacated and remanded.

Chief Judge Brock and Judge Parker concur.

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213 S.E.2d 374, 25 N.C. App. 470, 1975 N.C. App. LEXIS 2294, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-appeal-of-seashell-co-ncctapp-1975.

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