{ "id": 11651162, "name": "IN THE MATTER OF THE APPEAL OF ROBERT O. WILLIS AND WIFE, MARY JO WILLIS, Petitioners, AND CITY OF SOUTHPORT BOARD OF ADJUSTMENT AND CITY OF SOUTHPORT, Respondents, ROBERT O. WILLIS AND MARY JO WILLIS, Plaintiffs v. CITY OF SOUTHPORT BOARD OF ADJUSTMENT AND CITY OF SOUTHPORT, Defendants", "name_abbreviation": "Willis v. City of Southport Board of Adjustment", "decision_date": "1998-05-19", "docket_number": "No. COA96-1496", "first_page": "499", "last_page": "506", "citations": [ { "type": "official", "cite": "129 N.C. App. 499" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "444 S.E.2d 420", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "parenthetical": "on remand, \"court shall rely on the existing record... but may hear additional arguments from the parties and take such additional evidence as [it] finds necessary to correct the errors identified herein\"" } ], "opinion_index": 0 }, { "cite": "336 N.C. 575", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2536486 ], "year": 1994, "pin_cites": [ { "parenthetical": "on remand, \"court shall rely on the existing record... but may hear additional arguments from the parties and take such additional evidence as [it] finds necessary to correct the errors identified herein\"" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0575-01" ] }, { "cite": "433 S.E.2d 196", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "230" } ], "opinion_index": 0 }, { "cite": "111 N.C. App. 460", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522769 ], "year": 1993, "pin_cites": [ { "page": "517" } ], "opinion_index": 0, "case_paths": [ "/nc-app/111/0460-01" ] }, { "cite": "334 S.E.2d 103", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "105" } ], "opinion_index": 0 }, { "cite": "76 N.C. App. 646", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527768 ], "year": 1985, "pin_cites": [ { "page": "649" } ], "opinion_index": 0, "case_paths": [ "/nc-app/76/0646-01" ] }, { "cite": "483 S.E.2d 388", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1997, "pin_cites": [ { "page": "392", "parenthetical": "quoting Amanini, 114 N.C. App. at 675, 443 S.E.2d at 118-19" }, { "page": "392" }, { "page": "392", "parenthetical": "record indicated superior court applied whole record standard of review because its order stated Commission's decision \" 'was supported upon the whole record' \"" }, { "page": "392" } ], "opinion_index": 0 }, { "cite": "345 N.C. 699", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53839 ], "weight": 4, "year": 1997, "pin_cites": [ { "page": "706", "parenthetical": "quoting Amanini, 114 N.C. App. at 675, 443 S.E.2d at 118-19" }, { "page": "706" }, { "page": "706-07" }, { "page": "706" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0699-01" ] }, { "cite": "273 S.E.2d 232", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "236" } ], "opinion_index": 0 }, { "cite": "302 N.C. 14", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563691 ], "year": 1981, "pin_cites": [ { "page": "21" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0014-01" ] }, { "cite": "443 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 10, "year": 1994, "pin_cites": [ { "page": "118", "parenthetical": "citations omitted" }, { "page": "118" }, { "page": "118" }, { "page": "118-19" }, { "page": "118" }, { "page": "118" }, { "page": "118", "parenthetical": "trial court must apply de novo review to resolve whether agency decision was based upon error of law" }, { "page": "118" }, { "page": "118-19" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 668", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527936 ], "weight": 8, "year": 1994, "pin_cites": [ { "page": "674", "parenthetical": "citations omitted" }, { "page": "675" }, { "page": "674" }, { "page": "675" }, { "page": "675" }, { "page": "674" }, { "page": "674" }, { "page": "675" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0668-01" ] }, { "cite": "435 S.E.2d 359", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "363", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 161", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520617 ], "year": 1993, "pin_cites": [ { "page": "165", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/112/0161-01" ] }, { "cite": "496 S.E.2d 394", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "347 N.C. 409", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551395, 551302, 551321, 551388, 551102 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/347/0409-03", "/nc/347/0409-04", "/nc/347/0409-05", "/nc/347/0409-01", "/nc/347/0409-02" ] }, { "cite": "488 S.E.2d 845", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "848" }, { "page": "849" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 212", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11793979 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "218" }, { "page": "219" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0212-01" ] }, { "cite": "341 S.E.2d 767", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "770" } ], "opinion_index": 0 }, { "cite": "80 N.C. App. 279", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523255 ], "year": 1986, "pin_cites": [ { "page": "284" } ], "opinion_index": 0, "case_paths": [ "/nc-app/80/0279-01" ] }, { "cite": "265 S.E.2d 379", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1980, "pin_cites": [ { "page": "382", "parenthetical": "board of aldermen performs quasi-judicial function \"when it hears evidence to determine the existence of facts and conditions upon which the ordinance expressly authorizes it to issue a conditional use permit\"" }, { "page": "382" }, { "page": "382" }, { "page": "383" }, { "page": "382" } ], "opinion_index": 0 }, { "cite": "299 N.C. 620", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575681 ], "weight": 3, "year": 1980, "pin_cites": [ { "page": "625", "parenthetical": "board of aldermen performs quasi-judicial function \"when it hears evidence to determine the existence of facts and conditions upon which the ordinance expressly authorizes it to issue a conditional use permit\"" }, { "page": "624" }, { "page": "624" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0620-01" ] }, { "cite": "481 S.E.2d 685", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "689" } ], "opinion_index": 1 }, { "cite": "125 N.C. App. 457", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11868692 ], "year": 1997, "pin_cites": [ { "page": "462" } ], "opinion_index": 1, "case_paths": [ "/nc-app/125/0457-01" ] }, { "cite": "269 S.E.2d 547", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "573" } ], "opinion_index": 1 }, { "cite": "300 N.C. 381", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562647 ], "year": 1980, "pin_cites": [ { "page": "420" } ], "opinion_index": 1, "case_paths": [ "/nc/300/0381-01" ] }, { "cite": "34 N.C. 669", "category": "reporters:state", "reporter": "N.C.", "pin_cites": [ { "page": "707" } ], "opinion_index": 1 }, { "cite": "483 S.E.2d 388", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1997, "pin_cites": [ { "page": "392" }, { "page": "392" }, { "page": "393" } ], "opinion_index": 1 }, { "cite": "345 N.C. 699", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53839 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "706" }, { "page": "706" } ], "opinion_index": 1, "case_paths": [ "/nc/345/0699-01" ] }, { "cite": "443 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "118" }, { "page": "118" } ], "opinion_index": 1 }, { "cite": "114 N.C. App. 668", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527936 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "674" }, { "page": "674" } ], "opinion_index": 1, "case_paths": [ "/nc-app/114/0668-01" ] }, { "cite": "435 S.E.2d 359", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "363" } ], "opinion_index": 1 }, { "cite": "112 N.C. App. 161", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520617 ], "year": 1993, "pin_cites": [ { "page": "165" } ], "opinion_index": 1, "case_paths": [ "/nc-app/112/0161-01" ] } ], "analysis": { "cardinality": 677, "char_count": 16642, "ocr_confidence": 0.777, "pagerank": { "raw": 3.5255189775638794e-07, "percentile": 0.8840335865141172 }, "sha256": "018366da0282abc907100f4ac29615a895b6d235acc550465644c48a17826609", "simhash": "1:41c1d53a35ce345a", "word_count": 2747 }, "last_updated": "2023-07-14T18:14:06.814789+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge SMITH concurs.", "Judge LEWIS dissents." ], "parties": [ "IN THE MATTER OF THE APPEAL OF ROBERT O. WILLIS AND WIFE, MARY JO WILLIS, Petitioners, AND CITY OF SOUTHPORT BOARD OF ADJUSTMENT AND CITY OF SOUTHPORT, Respondents, ROBERT O. WILLIS AND MARY JO WILLIS, Plaintiffs v. CITY OF SOUTHPORT BOARD OF ADJUSTMENT AND CITY OF SOUTHPORT, Defendants" ], "opinions": [ { "text": "JOHN, Judge.\nRespondents City of Southport Board of Adjustment (the Board) and City of Southport (the City) appeal the trial court\u2019s 4 October 1996 order setting aside the Board\u2019s determination that petitioners Robert and Mary Jo Willis were in violation of a City zoning ordinance (the ordinance). For the reasons set forth herein, we reverse the trial court\u2019s order and remand for entry of a new order to include specification of the standard of review utilized by that court.\nIn view of our disposition of this matter, a detailed recitation of background information is unnecessary. Suffice it to state that on 3 May 1995 petitioners appealed the Board\u2019s determination they were in violation of the ordinance by filing in Brunswick County Superior Court a Petition for Writ of Certiorari and Complaint for Declaratory Judgment. Following a hearing, the trial court set aside the Board\u2019s decision 4 October 1996 in an order finding as fact the \u201cabsence of defined criteria or objective standards\u201d in the record to support the Board\u2019s \u201cerroneous\u201d conclusions, and holding the conclusions to be \u201carbitrary and not supported by the record.\u201d Respondents timely appealed to this Court.\nA legislative body such as the Board performs a quasi-judicial function when hearing evidence and determining whether a local ordinance has been violated. See Concrete Co. v. Bd. of Comm\u2019rs, 299 N.C. 620, 625, 265 S.E.2d 379, 382 (1980) (board of aldermen performs quasi-judicial function \u201cwhen it hears evidence to determine the existence of facts and conditions upon which the ordinance expressly authorizes it to issue a conditional use permit\u201d). Accordingly, the Board\u2019s decisions are \u201csubject to review by the superior court by proceedings in the nature of certiorari,\u201d N.C.G.S. \u00a7 153A-345(e) (1991), wherein the superior court is not a trier of fact, but assumes the posture of an appellate court. Mize v. County of Mecklenburg, 80 N.C. App. 279, 284, 341 S.E.2d 767, 770 (1986).\nThe North Carolina Administrative Procedure Act (APA) governing judicial review of agency rulings expressly excludes from its purview the decisions of local municipalities. Concrete Co., 299 N.C. at 624, 265 S.E.2d at 382. Nonetheless, the principles of the APA are \u201chighly pertinent\u201d to the process of judicial review as applied to decisions of municipal bodies such as the Board. See id. at 625, 265 S.E.2d at 382. Accordingly,\nthe task of a court reviewing a decision ... made by a town board sitting as a quasi-judicial body includes:\n(1) Reviewing the record for errors in law,\n(2) Insuring that procedures specified by law in both statute and ordinance are followed,\n(3) Insuring that appropriate due process rights of a petitioner are protected including the right to offer evidence, cross-examine witnesses, and inspect documents,\n(4) Insuring that decisions of town boards are supported by competent, material and substantial evidence in the whole record, and\n(5) Insuring that decisions are not arbitrary and capricious.\nId. at 626, 265 S.E.2d at 383. The scope of judicial review, however, \u201cis limited to errors alleged to have occurred before the local board.\u201d Tate Terrace Realty Investors, Inc. v. Currituck County, 127 N.C. App. 212, 218, 488 S.E.2d 845, 848, disc. review denied, 347 N.C. 409, 496 S.E.2d 394 (1997):\nIf [petitioner] argues the [board\u2019s] decision was based on an error of law, then \u201cde novo\" review is required .... If, however, [petitioner] questions (1) whether the [board\u2019s] decision was supported by the evidence or (2) whether the [board\u2019s] decision was arbitrary or capricious, then the reviewing court must apply the \u201cwhole record\u201d test.\nIn re Appeal by McCrary, 112 N.C. App. 161, 165, 435 S.E.2d 359, 363 (1993) (citations omitted). Further,\n\u201cDe novo\u201d review requires a court to consider a question anew, as if not considered or decided by the [board] .... The \u201cwhole record\u201d test requires the reviewing court to examine all competent evidence (the \u201cwhole record\u201d) in order to determine whether the [board] decision is supported by \u201csubstantial evidence.\u201d\nAmanini v. N.C. Dept. of Human Resources, 114 N.C. App. 668, 674, 443 S.E.2d 114, 118 (1994) (citations omitted).\nHowever, while \u201c[t]he nature of the contended error dictates the applicable scope of review,\u201d Utilities Comm\u2019n v. Oil Co., 302 N.C. 14, 21, 273 S.E.2d 232, 236 (1981), this rule\nshould not be interpreted to mean the manner of . . . review is governed merely by the label an appellant places upon an assignment of error; rather, [the court] first determine^] the actual nature of the contended error, then proceed[s] with an application of the proper scope of review.\nAmanini, 114 N.C. App. at 675, 443 S.E.2d at 118.\nWhile the APA specifically guides the superior court\u2019s review of quasi-judicial decisions, Concrete Co., 299 N.C. at 624, 265 S.E.2d at 382, the statute does not designate the standard to be employed by our appellate courts in reviewing subsequent appeals from the superior court. Amanini, 114 N.C. App. at 674, 443 S.E.2d at 118. Nonetheless, our Supreme Court recently declared that appellate courts, in considering decisions of the superior court regarding agency decisions, are to\n\u201cexamine^ the trial court\u2019s order for error 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. \u201d\nAct-Up Triangle v. Comm\u2019n for Health Servs., 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997) (quoting Amanini, 114 N.C. App. at 675, 443 S.E.2d at 118-19)). We believe appellate review of a superior court judgment on a writ of certiorari regarding the action of a quasi-judicial body (such as the Board herein), being derivative of the power of the superior court to review the action, Sherrill v. Town of Wrightsville Beach, 76 N.C. App. 646, 649, 334 S.E.2d 103, 105 (1985), is \u201clikewise governed by analogy to the APA.\u201d Tate Terrace, 127 N.C. App. at 219, 488 S.E.2d at 849.\nAccordingly, the threshold issue in the case sub judice is whether the trial court \u201cexercised the appropriate scope of review.\u201d Act-Up, 345 N.C. at 706, 483 S.E.2d at 392. Absent a declaration by the superior court denominating its process of review, see Amanini, 114 N.C. App. at 675, 443 S.E.2d at 118, we look to the parties\u2019 \u201ccharacterization of the alleged error on appeal [to the trial court]. \u201d Id.\nIn their briefs to the trial court regarding the petition for certio-rari, the parties presented arguments on the questions of 1) whether the evidence supported the Board\u2019s decision or whether that decision was arbitrary and capricious, and 2) whether the Board\u2019s decision was based upon errors of law. Accordingly, the trial court should have applied the whole record test to resolve the former issues, and de novo review to resolve the latter. See Amanini, 114 N.C. App. at 674, 443 S.E.2d at 118.\nThe trial court set aside the ruling of the Board, citing the lack of \u201cdefined criteria or objective standards\u201d within the record to support the Board\u2019s \u201cerroneous\u201d and \u201carbitrary\u201d conclusions. The order of the court further provided that it was \u201c[b]ased upon [the court\u2019s] review of the stipulated record in this matter,\u201d indicating the court employed the whole record test in reaching its decision. See Act-Up, 345 N.C. at 706-07, 483 S.E.2d at 392 (record indicated superior court applied whole record standard of review because its order stated Commission\u2019s decision \u201c \u2018was supported upon the whole record\u2019 \u201d). However, the trial court\u2019s order also asserted its right to \u201csubstitute its judgment [for that of the Board] as to conclusions of law,\u201d suggesting it may also have applied de novo review. See Amanini, 114 N.C. App. at 674, 443 S.E.2d at 118 (trial court must apply de novo review to resolve whether agency decision was based upon error of law).\nTherefore, while the court\u2019s order in effect set out the applicable standards of review, it failed to delineate which standard the court utilized in resolving each separate issue raised by the parties. Moreover, while the court may have disagreed with the parties\u2019 characterization of the issues, it failed to specify its own \u201cdetermin[ation of] the actual nature of the contended error\u201d before proceeding with its review. Amanini, 114 N.C. App. at 675, 443 S.E.2d at 118. As a result of these omissions, this Court is unable to make the requisite threshold determination that the trial court \u201cexercised the appropriate scope of review,\u201d id. at 675, 443 S.E.2d at 118-19, and we decline to speculate in that regard. It follows that we likewise are unable to determine whether the court properly conducted its review. See Act-Up, 345 N.C. at 706, 483 S.E.2d at 392.\nBased on the foregoing, therefore, the order of the trial court is reversed and this matter remanded to that court for entry of a new order in accordance with our opinion herein and specifically setting forth, inter alia, the court\u2019s characterization of the issues before it and the standard of review it applied in resolving those issues. The court may in its discretion receive additional evidence and hear further argument from the parties, but is not required to do so. See Smith v. Smith, 111 N.C. App. 460, 517, 433 S.E.2d 196, 230 (1993), rev\u2019d on other grounds, 336 N.C. 575, 444 S.E.2d 420 (1994) (on remand, \u201ccourt shall rely on the existing record... but may hear additional arguments from the parties and take such additional evidence as [it] finds necessary to correct the errors identified herein\u201d).\nReversed and remanded.\nJudge SMITH concurs.\nJudge LEWIS dissents.", "type": "majority", "author": "JOHN, Judge." }, { "text": "Judge Lewis\ndissenting.\nI agree with the majority that when this Court reviews decisions of the superior court regarding agency decisions we must\nexamine[] the trial court\u2019s 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.\nAct-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\u2019s conclusion that the superior court order in this case is insufficient to allow us to conduct a proper review.\nRespondents assign error to the superior court\u2019s findings that one of the Board\u2019s findings of fact was arbitrary and that two of the Board\u2019s conclusions of law were erroneous. The superior court\u2019s factual and legal inquiries will be addressed separately.\nI\nThe superior court found that the Board\u2019s finding that the petitioners were operating a commercial parking lot was arbitrary and not supported by the record. The superior court\u2019s decision was based on the absence of a definition for the term \u201ccommercial parking lot\u201d in the Southport Zoning Ordinance and the absence of any \u201carticulated and objective standard\u201d used by the Board.\nIn determining whether an agency decision is arbitrary and capricious, a superior court must apply the \u201cwhole record\u201d test. Amanini v. N.C. Dept. of Human Resources, 114 N.C. App. 668, 674, 443 S.E.2d 114, 118 (1994). \u201cThe \u2018whole record\u2019 test requires the court to examine all competent evidence (the \u2018whole record\u2019) in order to determine whether the agency decision is supported by \u2018substantial evidence.\u2019 \u201d Act-Up, 345 N.C. 699, 706, 483 S.E.2d 388, 392 (citations omitted). A decision is arbitrary and capricious if it is \u201cpatently 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.\u201d 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)).\nThe superior court\u2019s analysis in this case certainly indicates that the superior court used the whole record test, because the court examined the basis of the Board\u2019s decision rather than substituting its own view. Furthermore, the superior court order states that the Board\u2019s finding is not supported by the record. Although the use of the words \u201cwhole record\u201d would make the court\u2019s analysis clearer, I do not believe that any magic words are or should be required where the court\u2019s 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.\nII\nI turn now to the superior court\u2019s determination that the Board\u2019s conclusions of law were erroneous. A de novo review is the proper scope of review where a superior court examines an agency\u2019s 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 \u201cconsider the question anew as if not considered or decided below.\u201d Beauchesne v. University of North Carolina at Chapel Hill, 125 N.C. App. 457, 462, 481 S.E.2d 685, 689 (1997).\nIn its order the superior court states, \u201cIn determining errors of law, a Superior Court may substitute its judgment as to conclusions of law.\u201d After stating the issues of fact and law, the superior court\u2019s order states, \u201cBased 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.\u201d\nThis language is sufficient to demonstrate that a de novo standard of review was applied. The superior court\u2019s 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.\nFurthermore, 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\u2019s 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\u2019s legal conclusions as well as the Board\u2019s factual findings discussed above.\nThe superior court\u2019s 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\u2019s opinion is unduly critical and requires too much of the trial court in this case.\nFor the reasons discussed above, I must respectfully dissent.", "type": "dissent", "author": "Judge Lewis" } ], "attorneys": [ "Robert W. Kilroy for petitioners-appellees.", "Heller and Serra, by Robert K. Serra, and Fairley, Jess & Isenberg, by Michael R. Isenberg, for respondents-appellants." ], "corrections": "", "head_matter": "IN THE MATTER OF THE APPEAL OF ROBERT O. WILLIS AND WIFE, MARY JO WILLIS, Petitioners, AND CITY OF SOUTHPORT BOARD OF ADJUSTMENT AND CITY OF SOUTHPORT, Respondents, ROBERT O. WILLIS AND MARY JO WILLIS, Plaintiffs v. CITY OF SOUTHPORT BOARD OF ADJUSTMENT AND CITY OF SOUTHPORT, Defendants\nNo. COA96-1496\n(Filed 19 May 1998)\nZoning \u00a7 121 (NCI4th)\u2014 superior court order \u2014 reversal of board of adjustment \u2014 characterization of issues and standard of review\nThe trial court\u2019s order setting aside a board of adjustment\u2019s determination that petitioners are in violation of a city zoning ordinance is reversed and remanded for entry of a new order characterizing the issues before the court and setting forth the standard of review applied by the court in resolving each of those issues.\nJudge Lewis dissenting.\nAppeal by respondents from order entered 4 October 1996 by Judge William C. Gore, Jr. in Brunswick County Superior Court. Heard in the Court of Appeals 27 August 1997.\nRobert W. Kilroy for petitioners-appellees.\nHeller and Serra, by Robert K. Serra, and Fairley, Jess & Isenberg, by Michael R. Isenberg, for respondents-appellants." }, "file_name": "0499-01", "first_page_order": 539, "last_page_order": 546 }