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In re Community Savings & Loan Association and First Federal Savings & Loan Association of Hendersonville

Filed: November 6, 1979.

IN THE MATTER OF: COMMUNITY SAVINGS & LOAN ASSOCIATION AND FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF HENDERSONVILLE
v.
NORTH CAROLINA SAVINGS & LOAN COMMISSION, WILBERT W. SEABOCK, CHAIRMAN, WAYNE G. CHURCH, VICE CHAIRMAN, ALGERNON LEE BUTLER, JR., JAMES H. SPEARMAN, WALTER CHURCH, W. FRANK MCCRAY, JULIAN RAY SPARROW, MEMBERS, AND W. L. COLE, ADMINISTRATOR



Appeal by respondents from Smith (David I.), Judge. Judgment entered 31 August 1978 in Superior Court, Wake County. Heard in the Court of Appeals 18 September, 1979.

Martin (Robert M.), Judge. Chief Judge Morris and Judge Parker concur.

Martin

Respondent North Carolina Savings and Loan Commission ("Commission") and Clyde Savings and Loan Association ("Clyde") appeal from a ruling of the Wake County Superior Court vacating Commission's order allowing Clyde to open a branch office in Hendersonville, Henderson County. The ruling was in response to a petition filed by Community Savings and Loan Association ("Community") and First Federal Savings and Loan Association of Hendersonville ("First Federal") seeking to have Commission's order set aside. The trial court found, inter alia, that Clyde had "failed to carry the responsibility of furnishing evidence that a branch office facility would promote effective and healthy competition in Henderson County without undue damage to another association or associations." This finding was based upon two portions of the Commission's final decision, finding of fact (6) and conclusion (5), as set out below:

6. The area to be served, the location of the proposed branch and the competition in the area to be served is as shown in the application.

(5) The approval of the application of the applicant for the establishment of a branch office in Henderson County, North Carolina would not unduly damage any other association operating in the area and would constitute healthy competition and would promote public convenience and advantage.

The guidelines which the Commission must consider upon receiving an application for the establishment of a savings and loan association branch office are set forth in §§ .0202(1) through (8) of Title 4, chapter 9, Subchapter 9C of the North Carolina Administrative Code. Section .0202(6) specifically provides:

It will be the responsibility of the applicant to furnish evidence that such a branch office facility would promote effective and healthy competition without undue damage to another association or associations.

This language is mirrored in conclusion (5) of the Commission.

The Administrative Procedure Act provides, in pertinent part (at N.C Gen. Stat. § 150A-36), that:

[A] final decision or order of an agency in a contested case shall be made, after review of the official record as defined in G.S. 150A-37(a), in writing and shall include findings of fact and conclusions of law. Findings of fact shall be based exclusively on the evidence and on matters officially noticed. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting them. A decision or order shall not be made except upon consideration of the record as a whole or such portion thereof as may be cited by any party to the proceeding and shall be supported by substantial evidence admissible under G.S. 150A-29(a) or 150A-30 or 150A-31.

N.C. Gen. Stat. § 150A-50 provides that judicial review of agency decisions under the Administrative Procedure Act shall be conducted by the court sitting without a jury. The court shall receive briefs and arguments, but no evidence may be offered that was not offered at the administrative hearing. If a party alleges irregularity in the administrative proceeding, which is not shown in the record, the court may receive pertinent testimony. The court has no discretion to hear the matter de novo unless no record was made of the administrative proceeding or the record is inadequate. N.C. Gen. Stat. § 150A-51 defines the scope of ...


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