Opinion
No. 74-357
Decided April 1, 1975.
Banking Board denied application for commercial bank charter, and applicants sought review.
Order Affirmed
1. BANKS AND BANKING — Findings — Banking Board — Adequate — Allow Judicial Review. Where Banking Board's conclusion denying bank charter was based upon findings that there was no major retail shopping area within the primary service area, that the planned shopping center where the bank would be located would not significantly increase the primary service area's commercial base, and that, while the proposed bank might be more convenient for area residents, the needs of the public were being adequately served by existing banks and would be even better served by the two recently chartered banks, such findings are adequate to disclose the basis of the conclusions reached by the Board and to allow reasonable judicial review.
2. ADMINISTRATIVE LAW AND PROCEDURE — Scope of Review — Banking Board Decision — Administrative Procedure Act — Banking Code — Any Statutory Construction — Banking Code Provision — Applicable. Whether statutory construction would result in determination that scope of review of Banking Board's decision provided for by the Banking Code is identical to, at least as broad as, or in conflict with, scope of review provided for by the Administrative Procedure Act, application of the Banking Code provision either would not restrict applicant's rights to judicial review or would be mandatory; therefore, under either circumstance, review of a Banking Board decision may be governed by the provisions of the Banking Code.
Review of an Order from the Banking Board of the State of Colorado
Wagner, Wyers Vanatta, P.C., Dean R. Vanatta, for petitioners.
Gorsuch, Kirgis, Campbell, Walker Grover, Stephen Klein, for respondents Park County Bank and Bank of Evergreen.
John P. Moore, Attorney General, John E. Bush, Deputy Attorney General, Tennyson W. Grebenar, Assistant Attorney General, for respondents Banking Board and State Bank Commissioner.
Petitioners (applicants) applied for a commercial bank charter for the "Conifer State Bank," to be located near the intersection of U.S. Highway 285 and Colorado Highway 73, commonly known as Conifer Junction, Jefferson County. The proposed bank's primary service area contained no competing banks, but it overlapped with the service areas of the First National Bank of Evergreen and two recently chartered banks, Bank of Park County (located in Bailey, Colorado) and Bank of Evergreen.
At the hearing held by the Board, applicants presented a study prepared by an expert and an accountant which concluded that the proposed bank would serve a public need and advantage and would achieve profit in its second year of operation. Applicants also offered lay testimony that the proposed bank would serve a public need. The respondents, the Bank of Park County and the Bank of Evergreen (protestants), presented an expert's study which concluded that the proposed bank would not serve a public need and would not achieve a profit by the end of its third year. Protestants also presented the testimony of another expert to the effect that the proposed bank would not achieve a profit by the end of three years' operation.
In denying the applicant for the bank charter, the Board found that the applicants failed to sustain their burden of proving that the proposed bank would serve a public need and advantage in the area as required by § 11-3-110(3)(a), C.R.S. 1973. In seeking reversal of the Board's action, applicants contend that the findings relative to this conclusion are inadequate and are not supported by sufficient evidence. We affirm this conclusion of the Board, and therefore, since the failure of the applicants to meet their burden justifies the Board in denying the bank charter, we need not consider applicants' contentions as to the Board's other conclusions.
I.
[1] We reject applicants' argument that the Board's findings are inadequate. The Board's conclusion that the applicants had failed to prove that the proposed bank would serve a public need and advantage was based upon findings that there was no major retail shopping area with the primary service area, that the planned Conifer Junction Shopping Center would not significantly increase the primary service area's commercial base, and that, while the proposed bank might be more convenient for area residents, the needs of the public were being adequately served by existing banks and would be even better served by the two recently chartered banks. These findings are adequate to disclose the basis of the conclusions reached by the Board and to allow reasonable judicial review. Linder v. Copeland, 137 Colo. 53, 320 P.2d 972; Geer v. Presto, 135 Colo. 536, 313 P.2d 980.
II.
The other issue raised in this case is whether the Board's findings are sustainable upon review. However, as a prelude to a determination of that issue we must resolve the dispute raised by these parties as to the scope of judicial review of Banking Board findings regarding charter applications. Protestants contend that the scope of review provided by the Colorado Banking Code, § 11-2-105(2), C.R.S. 1973, is in conflict with the scope of review provided for by the State Administrative Procedure Act, § 24-4-106(7), C.R.S. 1973, and that, therefore, the Banking Code must control. Section 24-4-107, C.R.S. 1973; see Shoenberg Farms, Inc. v. People ex rel. Swisher, 166 Colo. 199, 444 P.2d 277. Applicants contend that the sections do not conflict and that, therefore, we may overturn the Board's findings if they are "clearly erroneous" or "arbitrary or capricious" (§ 24-4-106(7)) or if they are "not supported by substantial evidence in the record" (§ 11-2-105(2)).
[2] This issue may be resolved by the application of logic, thereby obviating a detailed analysis of the language used in the two statutory provisions. If the scope of review provided for by the Banking Code is identical to, or at least as broad as, the scope of review provided for by the Administrative Procedure Act, the Banking Code may be applied without restricting applicants' right to judicial review. If, however, the Banking Code provides for a narrower scope of review than does the Administrative Procedure Act, the statutes "conflict" within the meaning of § 24-4-107, C.R.S. 1973, and the Banking Code must be applied. Thus, under either circumstance, application of § 11-2-105(2), C.R.S. 1973, is proper, and our review is governed by that provision.
Using the standard established by that provision, we conclude that the Board's findings, summarized above, regarding the issue of whether the proposed bank would serve a public need and advantage, are supported by substantial evidence in the record. Applicants stress the studies of both experts which showed that three-fourths of the businesses surveyed indicated there was a "need" for the proposed bank. However, many of the businesses apparently equated need with convenience, and the large majority of businesses responding to the protestants' survey stated that their present banks' services were good or excellent. Convenience was only one of the factors the Board was entitled to consider in determining whether the proposed bank would serve a public need and advantage in the area; competition from other banks and the adequacy of the services provided by existing banks were other factors proper for the Board's consideration. Goldy v. Henry, 166 Colo. 401, 443 P.2d 994.
Since the Board's findings were based on substantial evidence, we will not substitute our evaluation of the evidence for the Board's determination. Goldy v. Henry, supra; Academy Boulevard Bank v. Banking Board, 30 Colo. App. 331, 492 P.2d 76.
Order affirmed.
CHIEF JUDGE SILVERSTEIN and JUDGE ENOCH concur.