dissenting.
I respectfully dissent, as I believe petitioner is correct in its contention that the declaratory ruling was affected by error of law. When the Department of Human Resources denied petitioner’s CON application, one of its reasons for doing so was that it concluded that eating disorders were not properly treatable in chemical dependency/substance abuse beds. The matter reached the Supreme Court, which held that the Department, by failing to act within 150 days, was “deemed as a matter of law to have decided to approve the [CON] in question”. HCA Crossroads Residential Ctrs., Inc. v. N.C. Dep't of Human Res., 327 N.C. 573, 579, 398 S.E.2d 466, 470 (1990). The Court further held that the Department had “lost jurisdiction over the subject matter of the [CON application] for all purposes except the issuance of the [CON].” Id. Finally, the Court ordered that the Department “must now issue the [CON] applied for." Id. at 579-80, 398 S.E.2d at 470-71 (emphasis added). The CON applied for was for a facility “entirely devoted to the treatment of adolescents suffering from substance abuse, including programming and facilities devoted *607exclusively to adolescent eating disorder patients.” It is to be presumed that the Supreme Court was aware of the nature of the proposed facility, as the record before that Court contained the Department’s denial of the CON application and its findings in support of its decision. The findings specifically addressed the proposed eating disorder aspect of the application. For example, the Department found that
Laurel Wood’s proposal to treat persons with eating disorders in licensed chemical dependency beds is not consistent with the Plan’s [the State Medical Facilities Plan’s] defined use for these beds. Instead, Laurel Wood should consider the establishment of psychiatric beds for the purpose of treating individuals who are not dependent on alcohol or other drugs but have an eating disorder.
The Supreme Court ordered the Department to issue the CON applied for, even though the Department had determined that several aspects of the application, including the proposed treatment of patients with eating disorders, were inconsistent with the policies of the SMFP and the CON law. I conclude that the Department’s attempt to avoid the clear mandate of the Supreme Court was error.
Furthermore, I find additional support for this conclusion in the CON law, as highlighted in a letter from the Department to petitioner. The letter was sent to petitioner along with the CON after the Supreme Court’s decision. The letter cautioned:
Please be aware that pursuant to G.S. 131E-181(b), you are required to materially comply with the representations made in your application for a Certificate of Need. If you operate a service which materially differs from the representations made in your application for a Certificate of Need, . . . the Department may bring remedial action against the holder of the Certificate of Need pursuant to G.S. 131E-189 and 131E-190.
Thus, the holder of an approved CON application must develop its service consistent with the representations made in its CON application, or face having its CON withdrawn by the Department, see § 131E-189(b) (1994), or face an injunction requiring material compliance with the representations it made in its CON application. See § 131E-190(i) (1994). Having represented in its CON application that it intended to provide treatment for eating disorders, petitioner was required to do so once its CON was issued by the Department.
*608I conclude that, in light of the Supreme Court’s decision in HCA and the CON law, the Department committed an error of law when it ruled that petitioner could not provide treatment for patients with eating disorders in chemical dependency/substance abuse beds. Thus, the trial court erred in finding no error of law. Accordingly, I would reverse the order of the trial court.