Hoke v. Moyer
| Decision Date | 21 December 1993 |
| Docket Number | Nos. 93-46,93-54,s. 93-46 |
| Citation | 865 P.2d 624 |
| Parties | G. Bland HOKE, Jr., Appellant (Intervenor), v. Peter F. MOYER, Appellee (Petitioner), v. BOARD OF COUNTY COMMISSIONERS OF TETON COUNTY, Wyoming, Appellee (Respondent). BOARD OF COUNTY COMMISSIONERS OF TETON COUNTY, Wyoming, Appellant (Respondent), v. Peter F. MOYER, Appellee (Petitioner), G. Bland Hoke, Jr. (Intervenor). |
| Court | Wyoming Supreme Court |
Henry C. Phibbs of Phibbs & Resor, and Marilyn S. Kite of Holland & Hart, Jackson, for Hoke.
Paul O. Vaughn, Teton Deputy Co. Atty., Jackson, for Board of County Com'rs.
Peter F. Moyer, pro se.
Before MACY, C.J., and THOMAS, CARDINE, GOLDEN and TAYLOR, JJ.
Appellee, Peter Moyer, sought judicial review of several decisions by the Teton County Board of Commissioners which affected the zoning density of real estate adjoining appellee's property and located in Teton County, Wyoming. The Board of County Commissioners and the potential developer of the affected property, Bland Hoke, appeal from a judgment of the Teton County District Court reversing the County Commissioners' decisions adopting the change in density recommended in the planner's "Memorandum of Decision" and approving the final subdivision plat.
We affirm.
Appellant, Teton County Board of Commissioners, raises these issues:
I. Whether the procedures followed and decision of the Commissioners of Teton II. Whether the county's regulations require notice and a public review of proceedings to correct an environmental mapping error.
County complied fully with the county's regulations.
III. Whether the correction of an environmental mapping error and removal of a zoning designation based on environmental constraints constitutes an "amendment" to the county's regulations.
IV. Whether the court may interpret the county's regulations to require notice and public review contrary to the regulations and the county's clear intentions.
V. Whether the county's procedure for correction of environmental mapping errors violates the enabling act.
VI. Whether the Administrative Procedure Act is applicable to the procedure for correction of environmental mapping errors.
VII. Whether the county's regulations regarding correction of environmental mapping errors meets constitutional due process requirements.
VIII. Whether the petitioner met his burden of proving the matters necessary in order to set aside the decision of the county.
IX. Whether the petitioner has standing as an aggrieved or adversely-affected party to obtain judicial review of the county's action.
X. Whether the decision of the district court is erroneous and should be reversed.
Appellant, Bland Hoke, fails to present a separate statement of the issues as required by W.R.A.P. 7.01(d) and 12.11(b). In previous cases where an appellant has neglected to include a statement of the issues, we have refused to consider the contentions of appellants. Cline v. Safeco Ins. Cos., 614 P.2d 1335, 1337 (Wyo.1980). However, the issues presented by the board comprehensively state the issues which concern Mr. Hoke.
Moyer presents the following issues:
a. Did the Teton County Commissioners comply with the Teton County Comprehensive Plan in re-zoning the applicable land?
b. Did the Teton County Commissioners comply with the State of Wyoming enabling statute in re-zoning the applicable land?
c. Did the Teton County Commissioners comply with the Wyoming Administrative Procedure Act in re-zoning the applicable land?
d. Did the Teton County Commissioners comply with due process requirements in re-zoning the applicable land?
e. Did the Teton County Commissioners comply with the Teton County Comprehensive Plan in permitting subdivision of the applicable land into 3 acre lots?
The Teton County Board of County Commissioners (board) adopted and implemented the Teton County Comprehensive Plan (the plan), effective January 1, 1978. As part of the plan, the board adopted "Land Use and Development Regulations" which "depicts the locations, types and intensities of land uses that are consistent with the objectives of protecting the public health, safety, and welfare, and preventing water pollution and other types of environmental degradation." These land use regulations were adopted pursuant to W.S. 18-5-201 through -202 (1977) to protect "the public health, safety, and welfare and * * * Teton County's priceless environmental quality and scenic beauty," and to maintain and promote a healthy economy and the human environment.
Under these regulations, all the covered land is divided into "land use districts" according to the permissible type of use, e.g., residential/agricultural or commercial, and according to the permissible density, e.g., one unit or dwelling per six acres. Thus, if a "land use district" is designated RA-6, the property may only be used for residential or agricultural purposes and the maximum density allowed is one dwelling or unit per six acres. The boundaries of each "land use district" are depicted on "land use element maps" and, under the plan, these boundaries may be revised through two specific processes, which will be discussed later in this opinion.
Placement of the boundaries is based on "environmental data maps" which contain information on geology, hydrology, groundwater and flood hazards.
On September 5, 1990, appellant Bland Hoke (Hoke) published notification of his intent to file for a permit to subdivide 57 acres (John Dodge VII) into 17 lots averaging 3.4 acres in size. At the same time, Hoke applied for a permit to subdivide. John Dodge VII is located adjacent to another subdivision (Wilderness Ranch Estates) where appellee Moyer owns a six-acre lot and lives with his family. At that time, the land use map designated the 57 acres of John Dodge VII as RA-6/3. RA-6/3 allows a maximum density of one dwelling per six acres unless it can be shown that the groundwater level will drop below three feet upon removal of irrigation. Hoke's subdivision permit application, however, stated that the 57 acres of John Dodge VII were designated RA-3, which permitted a maximum density of one dwelling per three acres.
The record does not reflect, directly, why Hoke's subdivision permit application stated that John Dodge VII was RA-3 when the county land use map designated it as RA-6/3. However, a memorandum, prepared by the Teton County Administrator of Planning Services, John Bradley (county planner), provides some insight into the inconsistent land use designations. Evidently, these 57 acres of John Dodge VII were originally designated RA-6 but then changed to RA-6/3 in 1988 when the County adopted new flood maps. There is no record of the process used to accomplish this change. Then, between January 1989 and August 1990, two groundwater observations were made on the 57 acres of John Dodge VII: first, when utility ditches were excavated for the project; and second, when a landscape architect, hired by Hoke, excavated several test pits. Both of these observations revealed that the groundwater level was below three feet, which would permit a density of one dwelling per three acres. Based upon these observations, the county planner decided to revise the land use district boundaries so that the John Dodge VII acreage became RA-3. Hoke, as a county commissioner in addition to being the developer proposing to subdivide the John Dodge VII acreage, likely was aware that the county planner had decided to make the density change and thus designated the acreage as RA-3 in his subdivision permit application.
It was not until October 22, 1990, however, when the county planner drafted a "Memorandum of Decision" in which he stated that the John Dodge VII acreage should be designated RA-3 instead of RA-6/3, that the County attempted to revise the boundary. The county planner forwarded the "Memorandum of Decision" to appellee Moyer, who then objected to the memorandum in a letter dated October 31, 1990. During a board meeting on November 8, 1990, with Moyer present, the commissioners adopted the change in density as recommended by the county planner. Other than sending the memorandum to Moyer, there was no public notice given prior to the board's adoption of this density change.
On December 7, 1990, Moyer petitioned for judicial review in Teton County District Court of the board's decision to adopt the county planner's recommendation to revise the land use district boundary so that the John Dodge VII acreage became RA-3. In addition, on January 17, 1991, Moyer filed a petition for judicial review of the board's decision approving the John Dodge VII final subdivision plat; and on February 13, 1991, he filed a petition for review of the board's decision approving the final plat signature for John Dodge VII. On June 5, 1991, the district court consolidated these three petitions. On January 29, 1993, the district court entered judgment in these consolidated appeals reversing, because of procedural infirmities, the board's decision which adopted the county planner's recommendation changing John Dodge VII to RA-3. Both the board and Hoke appeal from this judgment.
Wyoming Statute 16-3-114(c) (1990) controls the scope of our review and provides:
(c) 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)...
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