Frankel v. BOARD OF COUNTY COMMISSIOERS OF TETON COUNTY

• Decision Date: 29 January 2002
• Docket Number: No. 00-311.,00-311.
• Citation: 39 P.3d 420,2002 WY 13
• Parties: Sheldon FRANKEL, Appellant (Plaintiff), v. The BOARD OF COUNTY COMMISSIOERS OF TETON COUNTY WYOMING, Appellee (Defendant).
• Court: Wyoming Supreme Court

39 P.3d 420

2002 WY 13

Sheldon FRANKEL, Appellant (Plaintiff), v. The BOARD OF COUNTY COMMISSIOERS OF TETON COUNTY WYOMING, Appellee (Defendant).

No. 00-311.

Supreme Court of Wyoming.

January 29, 2002.

Lawrence B. Hartnett and Jessica Rutzick of the Law Offices of Lawrence B. Hartnett, Jackson, Wyoming. Argument by Ms. Rutzick, Representing Appellant.

Stephen Weichman, Teton County Attorney; James L. Radda, Deputy Teton County Attorney; and Brian Hultman, Deputy Teton County Attorney. Argument by Mr. Weichman, Representing Appellee.

Before GOLDEN, HILL, KITE, and VOIGT, JJ; and JOHN C. BROOKS, DJ.

HILL, Justice.

[¶ 1] Appellant, Sheldon Frankel (Frankel), asks that we review a decision of the Appellee, Board of County Commissioners of Teton County (Board), which denied his application for a grading and erosion control permit. Frankel contends that, in denying his application, the Board erred in considering regulations pertaining to land development, rather than just those pertaining to a grading and erosion control permit. The Board considered its skylining regulations, apparently because the grading and erosion control permit was an application to build a driveway to a proposed home site. The skylining regulations limit construction along a ridgeline that is visible from certain road-ways in Teton County, i.e., the home may not be built into the skyline. The Board determined that there was an "alternative site" on Frankel's property where a home could be built without invading the skyline.

[¶ 2] Frankel contends there is not substantial evidence to support that finding. Frankel also contends that the Board inappropriately relied upon opinion testimony from interested parties and factors unrelated to the decision at hand, and that these errors render the Board's decision arbitrary and capricious, as well as a violation of his rights to due process of law. Frankel asserts that the Board has made exceptions to the skylining regulations in other cases and that he is the victim of unequal or disparate treatment. Continuing, Frankel contends the skylining regulation is void for vagueness, and that the Board violated his due process rights by not affording the full protections required under his right to have a contested case hearing. Frankel filed a petition for review in the district court in accordance with W.R.A.P. 12.03, and the district court certified the matter to this Court under W.R.A.P. 12.09(b).

[¶ 3] We agree that the Board failed to follow required procedures in resolving this matter and, therefore, we will reverse.

ISSUES

[¶ 4] Frankel supplies this statement of the issues:

1. In making its decision to deny [Frankel's] application for a grading and erosion control permit, the [Board] considered regulatory guidelines pertaining to land development regulations, but ignored the regulatory guidelines which pertain to grading and erosion control. Does the application of inappropriate regulatory guidelines render the [Board's] decision arbitrary and capricious and therefore violative of [Frankel's] due process rights?

2. The skylining regulation upon which the [Board] relied in denying [Frankel's] application for a grading and erosion control permit on Lot 55 prohibits construction along a ridgeline if an "alternative site" exists on the property. There is no evidence in the record or applicable regulations defining "alternative site" or indicating whether an alternative site exists on Lot 55. Does the [Board's] failure to create a record supporting the conclusion that an "alternative site" exists on Lot 55 which is unsupported by substantial evidence render the final decision arbitrary and capricious and therefore violative of [Frankel's] due process rights?

3. In making its decision to deny [Frankel's] application for a grading and erosion control permit, the [Board] inappropriately relied upon opinion testimony of interested parties and factors unrelated to the guidelines set forth in the Teton County Land Development Regulations. Does this render the [Board's] decision to deny [Frankel's] application for a grading and erosion control permit arbitrary and capricious and therefore violative of [Frankel's] due process rights?

4. The [Board] has permitted construction of skylining residences to property owners similarly situated to [Frankel], including the property located directly adjacent to [Frankel's] property. Does the unequal treatment of similarly situated property owners render the [Board's] decision arbitrary and capricious and therefore violative of [Frankel's] due process rights?

5. Is the skylining regulation upon which the [Board] relied in denying [Frankel's] application for a grading and erosion control permit void for vagueness?

6. Did the [Board] violate [Frankel's] right to due process by failing to conduct a contested case hearing pursuant to the Wyoming Administrative Procedure Act?

The Board styles the issues in this manner:

A. The Board's decision was made in accordance with the Wyoming Administrative Procedure Act in each of the following ways:

1. Substantial evidence supports the Board's finding that [Frankel's] lot has an alternate site for a residence that would not penetrate the skyline.

2. The [Board] correctly applied skylining regulations to [Frankel's] application for a grading and erosion control permit; the other issues raised by [Frankel] are either premature or raised for the first time on appeal.

3. There is no reasonable basis to support the claim that the Board relied on inappropriate or inadmissible evidence.

4. The Board's application of skylining regulations to [Frankel's] application for a grading and erosion control permit was fair and reasonable since the very purpose of the permit was to provide access to a home that [Frankel] wanted to build on the ridgeline.

5. There is no basis in the record to support the claim that [the Board] has treated similarly situated property owners differently than its treatment of [Frankel] in violation of equal protection.

B. There was no denial of procedural rights afforded to [Frankel] by the Wyoming Administrative Procedure Act.

C. The skylining regulation is not void for vagueness.

FACTS

[¶ 5] We will provide only a brief overview of the facts because our disposition does not rely on what little factual material is contained in the record available for judicial review. In October of 1999, Frankel purchased the property at issue in this case with the intent that he would build a 10,000 square foot home¹ on the ridge that ran through the lot. That location would have allowed Frankel to maximize the size of the home to be built, whereas other locations on the lot may have permitted only the construction of a home of considerably smaller size (only 6,000-8,000 square feet). Frankel had made informal inquiries of Teton County Planning personnel to determine if he could build a house on the ridgeline, and the preliminary inquiries led him to believe that he could build just such a home. Of perhaps greater importance, the location on the ridgeline provided spectacular views of the Tetons, including the Grand Teton. Other locations on the lot did not afford Frankel that same view. Of course, an important factor with respect to the view is that it was "a million dollar view," both figuratively and literally.

[¶ 6] In March 2000, Frankel submitted an application for a grading and erosion control permit to the Teton County Planning Department. The purpose of that permit would have been to allow Frankel to build a driveway beginning at the cul-de-sac at the lower elevation of the lot and ascending to the ridgeline of the lot. Based on the record extant, the purpose of the driveway obviously was to gain access to a home site where Frankel wanted to build a home on the ridgeline location. On March 24, 2000, the Teton County Planning Department denied Frankel's application for the permit, basing their denial on a matter seemingly unrelated to the matter of grading and erosion control, to-wit:

SKYLINE DEVELOPMENT STANDARDS

. . . .

A. Skyline penetration prohibited. Development shall not penetrate the Skyline on buttes and hillsides, as viewed from any public road, except in the case of an existing lot where there is no other siting alternative that complies with the standards of these Land Development Regulations.

[¶ 7] Further regulations set out mitigation efforts required where skyline penetration is...