Cook v. Zoning Bd. of Adjustment for the City of Laramie
| Decision Date | 19 June 1989 |
| Docket Number | No. 88-219,88-219 |
| Citation | 776 P.2d 181 |
| Parties | Walter C. COOK, Appellant (Petitioner), v. The ZONING BOARD OF ADJUSTMENT FOR THE CITY OF LARAMIE, Wyoming and the City Engineer of the City of Laramie, Wyoming, Appellees (Respondents). |
| Court | Wyoming Supreme Court |
Dennis C. Cook, Laramie, for appellant.
Kathleen A. Hunt of Smith, Stanfield & Scott and David R. Nicholas of Corthell & King, Laramie, for appellees.
Before THOMAS, URBIGKIT, MACY, and GOLDEN, JJ., and LEIMBACK, District Judge.
This zoning controversy over installation of a residence side yard patio in the Alta Vista subdivision, Laramie, Wyoming has engendered a singular course of litigation which directs this court to establish whether the Zoning Board of Adjustment for the City of Laramie, Wyoming (Board) has jurisdiction and whether it should have considered an appeal from the city engineer's action to enforce the city's zoning ordinance by requiring homeowner removal of a cover from the recently constructed patio.
We reverse and remand for further hearing by the administrative agency.
In the summer of 1987, appellant Walter C. Cook (Cook) undertook improvements to his residence which were to include a concrete patio and a metal and glass panel cover. Before Cook started any construction, he checked with the City Engineer of Based on information obtained, Cook went ahead to complete construction. The building inspector 1 then addressed him orally and with a follow-up written notice dated September 29, 1987:
the City of Laramie, Wyoming (City) about a building permit or other requirements for the installation. There is at least an appearance of conflict in the record whether he advised the City officials that the planned improvement would include not only the patio but also its cover.
This letter is in regard to the roof structure you have erected on your lot at 1058 Bonita.
Section 17.12.030 of the Laramie Municipal Code requires the structure to have a minimum side yard setback of at least ten feet. The structure currently extends to your property line. Section 301 of the Uniform Building Code requires a permit to be obtained for a structure such as this. My records indicate that a permit has not been issued.
I must ask that the structure be brought into compliance within a period of fifteen (15) days of receipt of this notice.
Observedly and expectedly, Cook became very upset after having expended about $2,500 to construct the patio cover. He filed a comprehensive petition for review with the Board to appeal from the "order, requirement, decision or determination." He argued that the patio cover was not subject to side year clearance requirements under the zoning ordinance because it was neither a principal nor an accessory building. By documentation and prayer, he alternatively asked that the building inspector be overruled or a variance be granted. His petition proceeded to hearing without answer from the City as required by the Board's rules. Photographs of a large variety of similar structures in this area were presented to the Board. Also presented were the approving views of several people in the neighborhood, although the adjoining homeowner objected.
Following the hearing, no separate decision providing findings and conclusions was prepared. The decision is only authenticated by minutes of the hearing held November 17, 1987, which by conclusion provided that
There is also no documentary evidence of any decision constituting a determination of an appeal from the City's action. Cook sought review in district court 2 by utilizing the tape recording of the hearing and a summary of his testimony which had been omitted from the original recording. Exhaustive briefing followed with decision on the substantive issues:
As to whether the Zoning Board's failure to address Petitioner's first claim violated its duty to Petitioner under the law and its own rules, the Court agrees with Respondents that the Board of Adjustment is restricted to granting variances. No authority has been given to the Board to review the interpretations of the City Engineer's Office. Therefore, the Board did not address Petitioner's first claim because they are not in a position to do so.
Petitioner failed to present evidence to the Board that would substantiate a granting of the variance requested. The Board only has the power to grant a variance in the case of an exceptionally irregular, narrow or steep lot or other exceptional physical condition. Therefore, the Board's denial of a variance was properly based. This Court concludes that the Zoning Board of Adjustment's decision should be affirmed.
This Decision Letter constitutes the mandate of the Court from which Petitioner's further prerogatives for review will run. If Petitioner does not exercise those rights within fifteen days, then this file shall be returned by the Clerk of the District Court to the City of Laramie for
enforcement action under the Board's original decision.
The litigants initially present two procedural arguments. First, the City argues that the petition for review was improperly served when served only by delivery to the city clerk. The contention addresses a requirement that the petition for appeal to the Board must be served only on the chairman of the board. 3 Second, Cook argues that by the terms of the Board's rules, the City was obligated to file an answer, and, lacking compliance, was estopped to appear and defend.
Section 4 of the Board's rules and regulations provides:
The agencies or persons against whom the Petition has been filed shall be allowed Twenty (20) days from and after the date of service of the Petition within which to file with the City Clerk his, her or its answer or other appearance. A copy of such answer or other appearance shall be served upon the Petitioner in accordance with the provisions of Rule 5, Wyoming Rules of Civil Procedure.
Section 5 requires a $10.00 filing fee and provides that the city clerk shall docket and maintain the file in each case. Section 6 provides:
In the event of failure of either the Council, Commission or Board as the case may be, or any contestee to answer or otherwise appear within the time allowed by these rules, and provided that Section 3 hereof has been complied with, said agency or contestee so failing to answer or otherwise appear, shall not be allowed to answer or otherwise appear thereafter and after written notice to the petitioner, the proceeding will be brought before the agency to which it was presented for consideration and appropriate action.
Without attempting to unravel whether the layman in the volunteer office of chairman should have been served instead of the city clerk as the normal agent for service on the City, it will suffice to conclude that sufficient notice was given for the hearing to be scheduled and absent objection by the City, jurisdiction exists and the failure, if any, was waived.
We are then faced with the procedural requirement for filing an answer, which was ignored by the City. Proper and prompt objection by a request for entry of default was made by Cook at the Board hearing so that a waiver by him cannot be applied. In these proceedings, the public official acts in behalf of the public in general, and we apply the rule that rights for the public interest to be protected and considered by an administrative agency cannot be foreclosed as a waiver by the responsible public official. See Johnson v. City of Glendale, 12 Cal.App.2d 389, 55 P.2d 580 (1936), municipality and its officers cannot waive compliance with claim time; Building Com'rs Of, Town of Brookline v. McManus, 263 Mass. 270, 160 N.E. 887 (1928), building commissioner is without authority to waive or modify zoning by-laws; Cawley v. Board of Trustees of Firemen's Pension or Relief Fund of City of Beckley, 138 W.Va. 571, 76 S.E.2d 683 (1953); and Park Bldg. Corp. v. Industrial Comn., 9 Wis.2d 78, 100 N.W.2d 571 (1960), building inspector could not waive failure to comply with safety order.
A public office is held by public trust, 67 C.J.S. Officers § 11 (1978); therefore, sanctions or continuance may be appropriate and provided, but the public interest in whose discipline the city engineer acts cannot be waived by unintentional default.
Our review of administrative agency action is confined to the matters explicitly referenced in W.S. 16-3-114(c) and W.R.A.P. 12.09. W.S. 16-3-114(c) provides:
To the extent necessary to make a decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. In making the following determinations, the court shall review the whole record or those parts of it cited by a party and due account shall be taken of the rule of prejudicial error. The reviewing court shall:
(i) Compel agency action unlawfully withheld or unreasonably delayed; and
(ii) Hold unlawful and set aside agency action, findings and conclusions found to be:
(A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;
(B) Contrary to constitutional right, power, privilege or immunity;
(C) In excess of statutory jurisdiction, authority or limitations or lacking statutory right;
(D) Without observance of procedure required by law; or
(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute.
Originally, this appeal raises two issues: (1) whether the decision, if constituting a zoning decision, was appealable to the Board, and (2) whether the decision was a zoning decision.
In present appellate brief, the City concedes the first issue correctly that under state law which is controlling, a...
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