Ebzery v. City of Sheridan

• Decision Date: 25 June 1999
• Docket Number: No. 98-318.,98-318.
• Citation: 982 P.2d 1251
• Parties: Patricia K. EBZERY, George Ewan, James F. Jackson, Theresa M. Jackson, Iris Madia, Kenneth Madia, Arland M. Wiberg, and Ruth A. Wiberg, Appellants (Petitioners), v. CITY OF SHERIDAN, Wyoming Board Of Adjustment, Bruce R. Elworthy and Ann Marshall, Appellee (Respondent).
• Court: Wyoming Supreme Court

982 P.2d 1251

Patricia K. EBZERY, George Ewan, James F. Jackson, Theresa M. Jackson, Iris Madia, Kenneth Madia, Arland M. Wiberg, and Ruth A. Wiberg, Appellants (Petitioners), v. CITY OF SHERIDAN, Wyoming Board Of Adjustment, Bruce R. Elworthy and Ann Marshall, Appellee (Respondent).

No. 98-318.

Supreme Court of Wyoming.

June 25, 1999.

Rehearing Denied July 20, 1999.

Brian N. Beisher, Hart & Beisher, Sheridan, WY. Representing Appellants.

Stephen K. Gregersen, Sheridan City Attorney; Theodore E. Lauer, Director, Prosecution Assistance Program; and Carl S. McGuire III, Student Intern, Prosecution Assistance Program, Sheridan, WY., Representing Appellee City of Sheridan, Wyoming Board of Adjustment.

Bruce R. Elworthy, Elworthy & Marshall, Sheridan, WY., Representing Appellees Bruce R. Elworthy and Anne B. Marshall.

Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and HILL, JJ.

HILL, Justice.

Appellee Sheridan Board of Adjustment (the Board) granted a variance to Appellees, Bruce Elworthy and Anne Marshall (Owners), allowing the construction of a six-foot fence on two sides of Owners' property. Residents of Sheridan opposing the variance bring this appeal, claiming the Board's determination is not supported by substantial evidence. Finding no factual basis for the Board's conclusion that the variance granted is the minimum adjustment necessary to accomplish its purpose, we reverse and remand.

ISSUES

Appellants present the following issues for review:

A. Whether the City of Sheridan Board of Adjustment's decision to grant the variance was supported by substantial evidence.

B. Whether the factual findings of the City of Sheridan Board of Adjustment permit a court to follow the agency's reasoning from the evidentiary facts to its eventual legal conclusion.

C. Whether the City of Sheridan Board of Adjustment complied with Wyoming Statute § 15-1-608(b)(ii) in granting the variance to Bruce Elworthy and Anne Marshall.

Appellee City of Sheridan phrases the issues as follows:

A. Did the Board of adjustment sufficiently set forth its Findings of Fact and Conclusions of Law when the Board of Adjustment issued an Order granting a variance to Appellees Bruce R. Elworthy and Anne B. Marshall?

B. Was the Board of Adjustment's decision to grant a variance to Appellees Bruce R. Elworthy and Anne B. Marshall based on substantial evidence when the Board of Adjustment received and reviewed relevant evidence and made their decision based on such evidence?

C. Was the variance granted by the Board of Adjustment the minimum adjustment necessary to accomplish the variance's purpose when the variance granted by the Board of Adjustment allowed Appellees Bruce R. Elworthy and Anne B. Marshall to construct a six-foot high fence on two sides of their property where Sheridan, Wyo., Code of Laws app. A. § 10(17) (1994) allowed a four-foot fence to be built?

Appellees Elworthy and Marshall present these issues:

1. Does the lack of an application and/or Order staying construction of the permitted improvement (the fence) render this matter moot?

2. Do the Applicants have a vested right to the fence irrespective of the legitimacy and/or propriety of the Board's actions?

FACTS

Owners' property consists of a residence and yard comprising one full city block in Sheridan, Wyoming. At the time of purchase, the property was surrounded by a hedge over six feet tall and contained an in-ground swimming pool which had not been in use for quite some time. The property had fallen into a state of disrepair; the hedge had died in many spots, and the remainder had accumulated dead wood and trash. After beginning repairs, Owners learned that the hedge, as it then existed, would not meet their liability insurance policy requirements to screen in the pool.

The Sheridan Code allows a resident to place six-foot fencing along the back of a property and also along the sides of properties not adjacent to a street. All other residential fences may not exceed four feet in height. A six-foot fence is allowed on the property if it meets the setback requirement of 25 feet from the curb. Owners wished to construct a six-foot fence around the entire perimeter of their property approximately 15 feet from the curb and, therefore, filed a request for a variance with the Sheridan Board of Adjustment. The basis for this request was two-fold: Owners claimed that the pool had to be fenced for public safety purposes, and that the fence had to be six feet tall to comply with their liability insurance policy requirements that the pool be screened in.

Owners' request was first considered at the July 9, 1998, Board meeting. After some discussion and the presentation of several letters from neighbors in opposition to the variance, the Board's vote resulted in a two-two tie because one member of the Board was absent from the meeting. Failing to pass by a majority vote, the variance was denied.

The Board reconsidered its decision at a special meeting on July 30, 1998. Between the first and second meetings, Owners submitted a detailed letter to the Board explaining why they believed the variance was appropriate. The letter was accompanied by exhibits, which included the relevant portion of Owners' insurance policy, several affidavits regarding the condition of the hedge, articles about safety issues relating to in-ground pools, and a diagram of the proposed fence. Neighbors opposing the variance again appeared in person and by letter. After limited discussion, it was determined that Owners did not need a variance for the back fence. When Owners agreed that the front fence need not be more than the allowed four-foot height, the request was modified to provide a variance for a six-foot fence on the two sides of the property adjacent to streets. In a three-two vote, the variance was granted and was recorded on August 4, 1998, in the Sheridan County Courthouse.

Appellants filed a petition for review in the district court on August 28, 1998. The Board then issued a written Order dated September 10, 1998, with findings of fact and conclusions of law. On November 4, 1998, the district court certified the case to this Court pursuant to Rule 12 of the Wyoming Rules of Appellate Procedure.

STANDARD OF REVIEW

As we recently stated in Scott v. McTiernan, 974 P.2d 966, 969 (Wyo.1999):

When we review cases which have been certified to the Wyoming Supreme Court pursuant to W.R.A.P. 12.09(b), we apply the appellate standards which are applicable to the court of first instance. Wyo. Stat. Ann. § 16-3-114(c)(Michie 1997) governs judicial review of administrative actions.

In reviewing an agency's findings of fact, we determine whether substantial evidence supports the findings. "Substantial evidence is relevant evidence which a reasonable mind might accept in support of the agency's conclusions." We affirm an agency's conclusions of law when they are in accordance with law. When an agency has not invoked and properly applied the correct rule of law, we correct the agency's errors.

An administrative agency is charged with the duty of supporting its action with adequate findings of fact. Wyo. Stat. Ann. § 16-3-110 (Michie 1997). Section 16-3-110 states in pertinent part:

A final decision or order adverse to a party in a contested case shall be in writing or dictated into the record. The final decision shall include findings of fact and conclusions of law separately stated. Findings of fact[,] if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings.

In discharging its duty under § 16-3-110, the agency must "make findings of basic facts upon all of the material issues in the proceeding and upon which its ultimate findings of fact or conclusions are based." This Court needs to know "why"an agency decided the way it did. When an agency does not make adequate findings of basic fact, we do not have a rational basis upon which to review its ultimate findings and conclusions. In cases where the findings do not adequately explain the rationale for the agency's decision, we remand the matter to the agency so that it can make additional findings.

(Citations omitted.)

DISCUSSION

Final Order

As an initial matter, we address whether the Board's final order was contained in the Minutes of the July 30 meeting, as contended by Owners, or whether the final order is the written order issued over six weeks later. This determination is important not only because our review is initially focused on the final order, but also because the timely filing of an appeal from agency action is a jurisdictional matter. Department of Revenue and Taxation v. Irvine, 589 P.2d 1295, 1301 (Wyo.1979). If confusion exists as to whether a final order has been issued, it may result in costly litigation regarding the timeliness of an appeal or the foreclosure of judicial review. See Rosenberger v. City of Casper Bd. of Adjustment, 765 P.2d 367, 369 (Wyo.1988).

"A final administrative order is one ending the proceedings, leaving nothing further to be accomplished." MGTC, Inc. v. Public Service Com'n of Wyoming, 735 P.2d 103, 106 (Wyo.1987). Wyo. Stat. Ann. § 16-3-110 provides that the agency will render separately stated findings of fact and conclusions of law in writing, or dictate these findings and conclusions into the record. In this case, the minutes of the July 30 meeting indicate the Board unequivocally granted the variance, and at the close of the meeting adopted findings which had been dictated into the record. The Board did not inform the contestants that a written order would be issued at a later date or that the matter was subject to further consideration. In fact, the variance was recorded at the Sheridan County Courthouse on August 4, 1998. Thus, there was nothing further to accomplish after the July 30 meeting, and, consequently, the Board's determination on July 30 was a final appealable order.

Substantial Evidence

The Board's...