In re the Appeal from the Environmental Management Commission

341 S.E.2d 588, 80 N.C. App. 1, 1986 N.C. App. LEXIS 2144
CourtCourt of Appeals of North Carolina
DecidedApril 1, 1986
DocketNo. 8510SC694
StatusPublished
Cited by15 cases

This text of 341 S.E.2d 588 (In re the Appeal from the Environmental Management Commission) 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 the Appeal from the Environmental Management Commission, 341 S.E.2d 588, 80 N.C. App. 1, 1986 N.C. App. LEXIS 2144 (N.C. Ct. App. 1986).

Opinion

MARTIN, Judge.

I.

Appellants have appealed from a judgment of the Superior Court upholding the order of the EMC granting a certificate of authority to OWASA to institute eminent domain proceedings to acquire lands along Cane Creek for the purpose of constructing an impoundment reservoir. The scope of judicial review of this administrative proceeding is not in dispute. Since this matter was initiated prior to the effective date of the new Administrative Procedure Act, N.C. Sess. Laws (2d Sess., 1985) c. 746, s. 19, codified at G.S. Chapter 150B, the provisions of the Administrative Procedure Act of 1973 (APA), G.S. Chapter 150A, apply to this case. Section 51 of the APA provides in part as follows:

The court may affirm the decision of the agency or remand the case for further proceedings; or it may reverse or modify the decision if the substantial rights of the petitioners may have been prejudiced because the agency findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional provisions; or
(2) In excess of the statutory authority or jurisdiction of the agency; or
(3) Made upon unlawful procedure; or
(4) Affected by other error of law; or
(5) Unsupported by substantial evidence admissible under G.S. 150A-29(a) or G.S. 150A-30 in view of the entire record as submitted; or
(6) Arbitrary or capricious.

[6]*6Under the whole record test embodied in subsection (5), agency findings of fact are conclusive if, upon review of the whole record, they are supported by evidence which is competent, material, and substantial. In re Faulkner, 38 N.C. App. 222, 247 S.E. 2d 668 (1978). While the reviewing court is required to consider evidence that supports and detracts from the agency ruling, it may not substitute its judgment for the agency’s and may not find facts. Community Savings and Loan v. N. C. Savings & Loan Comm’n, 43 N.C. App. 493, 259 S.E. 2d 373 (1979); In re Faulkner, supra. Substantial evidence is relevant evidence that a reasonable person would consider adequate to support a finding of fact. Lackey v. Dept. of Human Resources, 306 N.C. 231, 293 S.E. 2d 171 (1982). See also Coastal Ready Mix Concrete Co. v. Bd. of Commissioners of the Town of Nags Head, 299 N.C. 620, 265 S.E. 2d 379, reh’g denied, 300 N.C. 562, 270 S.E. 2d 106 (1980).

Appellants contend that when the whole record test is applied to each of the six factors listed under G.S. 150A-51, the order of the EMC fails to satisfy all but the third one. Though neither OWASA nor the EMC addresses the point, we note at the outset that appellants’ argument is based on an apparent misapprehension of the law. By the very terms of the statute, the whole record test applies only with respect to the fifth listed consideration, whether the agency decision is supported by substantial evidence in view of the entire record as submitted. This interpretation is supported by the opinion of our Supreme Court in Thompson v. Board of Education, 292 N.C. 406, 233 S.E. 2d 538 (1980), and by this Court’s decision in the earlier appeal in this case. In both cases, the whole record test was stated with specific reference to G.S. 150A-5K5):

This standard of judicial review is known as the “whole record” test and must be distinguished from both de novo review and the “any competent evidence” standard of review. . . . The “whole record” test does not allow the reviewing court to replace the Board’s judgment as between two reasonably conflicting views, even though the court could justifiably have reached a different result had the matter been before it de novo, ... On the other hand, the “whole record” rule requires the court, in determining the substantiality of evidence supporting the Board’s decision, to take into account whatever in the record fairly detracts from the weight of the [7]*7Board’s evidence. Under the whole evidence rule, the court may not consider the evidence which in and of itself justifies the Board’s result, without taking into account contradictory evidence or evidence from which conflicting inferences could be drawn.

Thompson v. Wake County Board of Education, supra, at 410, 233 S.E. 2d at 541 (citations omitted). See In re EMC, supra, at 146, 280 S.E. 2d at 527-28.

The other five factors involve different questions entirely. Depending on the facts of a particular case, consideration of these factors can involve scrutiny of the entire record. None of them, however, requires an evidentiary review of the same nature as that which the reviewing court is required to apply with respect to subsection (5).

II.

G.S. 162A-7 provides that water authorities seeking to acquire property by eminent domain must receive authorization from “the Board,” and sets forth the procedures for doing so. “The Board” as used in the statute originally referred to the Board of Water Commissioners, G.S. 162A-2(2), whose function was succeeded to by the EMC. G.S. Secs. 143-211, 143B-282. G.S. 162A-7(c) provides that the certification may only be issued for projects that are “consistent with the maximum beneficial use of the water resources in the State and shall give paramount consideration to the statewide effect of the proposed project rather than its purely local or regional effect.” The statute lists seven factors that the EMC must “specifically consider” in making its determination:

(1) The necessity of the proposed project;
(2) Whether the proposed project will promote and increase the storage and conservation of water;
(3) The extent of the probable detriment to be caused by the proposed project to the present beneficial use of water in the affected watershed and resulting damages to present beneficial users;
[8]*8(4) The extent of the probable detriment to be caused by the proposed project to the potential beneficial use of water on the affected watershed;
(5) The feasibility of alternative sources of supply to the petitioning authority and comparative cost thereof;
(6) The extent of the probable detriment to be caused by the use of alternative sources of supply to present and potential beneficial use of water on the watershed or watersheds affected by such alternative sources of supply;
(7) All other factors as will, in the Board’s opinion, produce the maximum beneficial use of water for all in all areas of the State affected by the proposed project or alternatives thereto.

G.S. 162A-7(c). Appellants contend that the EMC based its decision on an erroneous interpretation of this statute with the result that the overall goal of maximum beneficial use of the State’s water resources was not achieved and the statewide effect of the project was ignored. They argue that the EMC placed too much emphasis on water quality, a consideration not listed in the statute, and failed to consider the listed factors sufficiently to effect the policy of the statute. Appellants rely on this Court’s earlier decision in this case for the proposition that the policy of the statute requires the EMC to consider more than the exploitation and development of water resources.

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341 S.E.2d 588, 80 N.C. App. 1, 1986 N.C. App. LEXIS 2144, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-appeal-from-the-environmental-management-commission-ncctapp-1986.