Heiss v. City of Casper Planning and Zoning Com'n, 96-146
| Decision Date | 19 June 1997 |
| Docket Number | No. 96-146,96-146 |
| Citation | 941 P.2d 27 |
| Parties | Susan E. HEISS and William N. Heiss, Appellants (Petitioners), v. CITY OF CASPER PLANNING AND ZONING COMMISSION, Appellee (Respondent). |
| Court | Wyoming Supreme Court |
Susan E. Heiss and William N. Heiss, pro se.
W. Jackson Stewart, Casper City Attorney, and Loyd E. Smith, Cheyenne, for Appellee.
Before TAYLOR, C.J., and THOMAS, MACY, GOLDEN and LEHMAN, JJ.
Appellants Susan and William Heiss (Heisses) appeal the order affirming a conditional use permit granted by the City of Casper Planning and Zoning Commission (Commission). We reverse and remand to the district court with instructions to remand to the Commission.
The Heisses present the following issues:
A. Whether the decision by the Casper Planning and Zoning Commission (the "Commission") in Case No. CU-95-006 (the "Case") was "supported by substantial evidence" when there was no evidence or testimony presented by the applicant in that case.
B. Whether the Commission complied with the applicable provisions of the City of Casper Zoning Ordinance ("Ordinance") in making its decision in the case.
C. Whether the grant of a conditional use permit in the Case effectively re-zoned the subject property without complying with the provisions of the applicable zoning ordinances.
The Commission states the issues:
1. Whether the decision of the City of Casper Planning and Zoning Commission granting a Conditional Use Permit to allow an off-street parking lot in a R-4 Zone was supported by substantial evidence[.]
A. Whether the Planning and Zoning Commission complied with the applicable provisions of the City of Casper Zoning Ordinance in making its decision[.]
B. Whether Appellants waived all issues concerning the conditional use except whether to locate a curb cut on Gannett Street[.]
2. Whether the grant of the Conditional Use Permit effectively rezoned the subject property[.]
Luker Realty filed a petition for a conditional use permit to allow an off-street parking lot in a high density residential zone. The land adjoining the subject property to the north was zoned commercial highway business, and Luker Realty sought the conditional use permit to provide parking for development of that commercial lot. Access to the commercially zoned area exists to the north and east of the commercial lot. The petition proposed a curb cut on Gannett Street to provide for southern access to the commercial lot through the subject property.
Gannett Street runs on the south side of the subject property. South of Gannett, the property is zoned for single unit residences. The property lying to the west and to the east of the subject property is zoned for planned unit development and general business. Diagonally from the subject property, across a three-way intersection, is a neighborhood park.
The Commission is required to hold a public hearing on all conditional use permits, and all real property owners within a three hundred foot radius of the perimeter of the property in question must receive notice of the public hearing. The Heisses are real The Commission received written comments. Betty Luker, president of Luker Realty, submitted a letter in support of the permit. Two groups of landowners submitted identical petitions, one signed by landowners within the three hundred foot radius and the other by landowners outside the three hundred foot radius. Both petitions premised their support of the permit on the condition, among others, that there be no curb cut on Gannett Street. Several landowners, including the Heisses, submitted additional written comments emphasizing the need to preclude the curb cut. Gary Freel, Casper's Zoning and Code Enforcement Officer, recommended approval of the conditional use permit, also with the condition to exclude the Gannett Street curb cut.
property owners within the three hundred foot radius perimeter.
The Commission held the public hearing and subsequently issued its order, granting the conditional use permit and allowing the curb cut on Gannett Street. The Heisses petitioned the district court for review, and the court affirmed the order. This timely appeal follows.
Wyoming Rules of Appellate Procedure 12 provides for judicial review of agency actions. Rule 12.09(a) limits the extent of review to determination of matters specified in W.S. 16-3-114(c). That statute requires reviewing courts to 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; [or]
* * * * * *
(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute.
W.S. 16-3-114(c)(ii). We review the agency decision de novo, according no deference to the district court's decision. Campbell v. Dep't of Family Serv., 881 P.2d 1066, 1068 (Wyo.1994).
Our task is to examine the entire record to determine if substantial evidence exists to support the hearing examiner's findings. We will not substitute our judgment for that of the hearing examiner if his decision is supported by substantial evidence. Substantial evidence is relevant evidence which a reasonable mind might accept in support of the agency's conclusions.
Romero v. Davy McKee Corp., 854 P.2d 59, 61 (Wyo.1993). In reviewing questions of law, however, we do not defer to the agency's decision. If the conclusion of law is in accordance with law, we affirm it; if it is not, we correct it. Aanenson v. State ex rel. Worker's Compensation Div., 842 P.2d 1077, 1079 (Wyo.1992).
The Heisses contend that substantial evidence does not exist to support the Commission's decision to grant the conditional use permit with a curb cut on Gannett Street. The Commission's decision is embodied in its Findings of Fact No. 6, which states:
The proposed use of this residential site (R-4), for off-street parking purposes, is considered consistent with the spirit and intent of the Zoning Ordinance, and the Commission further finds that the proposed use will not substantially impair the appropriate use of neighboring property because the parking lot will be buffered from the residential area and only a portion of the traffic to and from the lot will access through the residential area of this neighborhood, thereby producing only minimal additional traffic.
The only evidence we found in the record which supports the Commission's decision is a letter from the applicant, Betty Luker, who was not present at the hearing, and the following comments made by Commission members:
Rudkin: * * * I have a couple of points. * * * [T]hose two squares to the north of the parking lot will perhaps contain buildings and that will break up the distance that the gentleman was talking about. That also will create a little bit of a problem, as far as that parking lot is concerned, because all of the traffic that goes in and Jarvis: It's already a bottleneck. * * * Well the turn into the Safeway parking is already a bottleneck the way it is. I think with two more businesses in the area, we need another way to get out. I can understand the concern about adding more traffic on Gannett, but I can also see the way the traffic flows you can't expect them to dead-end.
out of that parking lot will funnel through between those two establishments in the future, if they exist. Seems to me that this might create a bottleneck without a curb cut on Gannett Street.
Barrett: Members of the Commission, I might add the cut you see at Key bank, the curb cut there, will possibly be utilized when we actually have a site plan for the restaurant.
Jarvis: Without a site plan, we are at a great disadvantage.
Barrett: Also, the curb cut on Gannett primarily would be for the residents that live in that area. People accessing the site are not going to utilize that.
Crowd says--we don't want it.
Barrett: If you look at the configuration of it[,] that is representative if you look at the traffic flow out of there. But the two cuts in the primary secondary curb cut would probably be utilized if it's a restaurant, by the one at Key Bank, which is a shared access there.
The Commission's speculation just prior to the decision reflects the inherent problems in reaching a decision without sufficient material evidence:
Rudkin: Assuming you'd have an apartment in there, how would you get into and out of it?
Zukin: You'd have a curb cut, but you'd have a different kind of traffic going in and out of there. You'd have a different view from the other side of the street.
Sasser: Yes. But you'd still have possibly the same amount of traffic, cause I mean the apartments could generate as much traffic flow as anything else.
Audience: No way!
* * * * * *
Zukin: I think there's a difference between looking down on a parking lot and looking down on an apartment complex or condominiums. Is there any other discussion to this amending motion? This motion then is to amend the original motion and allow a curb cut on Gannett. Janet, would you call the roll please? [Motion passes four to two.]
We have previously stated that it is
essential to surviving judicial review that the record of a contested agency action contain such factual findings as would permit a court to follow the agency's reasoning from the evidentiary facts on record to its eventual legal conclusions. Similarly, we have held that a contested case hearing must provide, and the record of that proceeding must document, information sufficient to the making of a reasonable decision. Absent such information, the agency decision must be set aside as arbitrary.
Jackson v. State ex rel. Workers' Compensation Div., 786 P.2d 874, 877 (Wyo.1990) (citations omitted); see also Mekss v. Wyoming Girls' Sch., 813 P.2d 185, 201 (Wyo.1991).
The Commission argues its decision is supported by evidence of the characteristics of the surrounding properties, Doug Barrett's recommendation...
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