Holding's Little America v. Board of County Com'rs of Laramie County, 83-67

Citation670 P.2d 699
Decision Date21 October 1983
Docket NumberNo. 83-67,83-67
PartiesHOLDING'S LITTLE AMERICA, a Wyoming corporation, Appellant (Petitioner), v. BOARD OF COUNTY COMMISSIONERS OF LARAMIE COUNTY, Appellee (Respondent).
CourtUnited States State Supreme Court of Wyoming

Alan B. Minier and James L. Applegate of Hirst & Applegate, Cheyenne, for appellant; oral argument by Alan B. Minier.

Bert T. Ahlstrom, Jr., Cheyenne, for appellee.

Before ROONEY, C.J., and THOMAS, ROSE, BROWN and CARDINE, JJ.

CARDINE, Justice.

This is an appeal from a decision by the Laramie County District Court dismissing appellant's petition seeking review of action taken by the Board of County Commissioners of Laramie County authorizing industrial development revenue bonds (hereafter referred to as IDR bonds) under the Wyoming Industrial Development Projects Act. We will reverse and remand.

The issues upon appeal, as stated by appellant, are:

1. "The action of county commissioners under the Wyoming Industrial Projects Act is subject to judicial review under Rule 12 of the Wyoming Rules of Appellate Procedure and under the Wyoming Administrative Procedure Act."

2. "The determinations and findings of the Board of the County Commissioners of Laramie County under Wyoming Statutes 1977, § 15-1-705 are not supported by the record and must be set aside under Wyoming Statutes 1977 § 9-4-114(c)(ii)."

Appellee states the issues in a slightly different form:

1. "The action of county commissioners under the Wyoming Industrial Projects Act is a legislative action and is, therefore, not reviewable under the Wyoming Administrative Procedure Act or otherwise."

2. "The determinations and findings of the Board of County Commissioners of Laramie County are valid and supported by the record of proceedings."

Appellee also raises the question of standing, although he does not present a cogent argument nor does he cite any authority in support of this position.

FACTS

The Board of County Commissioners of Laramie County Wyoming, authorized IDR bonds under the Wyoming Industrial Development Projects Act. The proceeds from these bonds were to be used by Roadside, Inc. to construct a hotel and restaurant complex near Cheyenne, Wyoming. The facts relevant to this controversy are essentially not in dispute. An inducement resolution with an attached memorandum of agreement for the project was considered and approved by the county commissioners on October 6, 1981. Subsequently, on May 11, 1982, there was a discussion among the commissioners relative to amending the inducement resolution. On September 28, 1982, the county commissioners extended the time limit for issuance of the bonds from one year after the date of the inducement resolution to two years thereafter and also extended the memorandum of agreement between the county and Roadside, Inc. On October 19, 1982, the IDR bonds were finally approved and issuance of the bonds was authorized.

At this final meeting, the appellant, through counsel, requested a hearing to present evidence with regard to the proposed bonds. The request was denied. Appellant filed a timely petition seeking review of the bond resolution. The board of county commissioners filed a motion to dismiss the petition. By decision letter, the district court ruled in favor of the county commissioners granting the motion to dismiss. The court specifically found that: " * * * The Industrial Development Revenue Bond Act, being a legislative enactment, does not bring the proceedings under the requirements of the Administrative Procedure Act. * * * "

I

Are the actions of the county commissioners under the Wyoming Industrial Development Projects Act reviewable under the Wyoming Administrative Procedure Act?

The board of county commissioners is an agency as defined by the Wyoming Administrative Procedure Act, § 16-3-

                101(b)(i), W.S.1977; 1  and, therefore, its actions come under the purview of the Administrative Procedure Act, unless the action taken fits within a statutory exception.  See also, Monahan v. Board of Trustees of Elementary School Dist. No. 9, Cty. of Fremont, Wyo., 486 P.2d 235 (1971);  Board of Cty. Comm'rs of Teton Cty. v. Teton Cty. Youth Services, Inc., Wyo., 652 P.2d 400 (1982)
                
LEGISLATIVE EXCEPTION

We have specifically held that the provisions of the Administrative Procedure Act do not apply to legislative actions or hearings. Therefore, if the actions taken regarding the IDR bonds were considered to be legislative in nature, judicial review under the Administrative Procedure Act would not be available. McGann v. City Council of City of Laramie, Wyo., 581 P.2d 1104 (1978); Lund v. Schrader, Wyo., 492 P.2d 202 (1971); Scarlett v. Town Council, Town of Jackson, Teton County, Wyo., 463 P.2d 26 (1969).

Whether action is legislative is usually determined by comparison with adjudicatory proceedings. 1 Am.Jur.2d Administrative Law § 93 states that:

"Legislative power is the power to make, alter, or repeal laws or rules for the future. To make a rule of conduct applicable to an individual who but for such action would be free from it is to legislate.

"Legislative power is distinguished from judicial power, or legislation from adjudication, in that basically or usually it operates in the future, rather than on past transactions and circumstances, and generally, rather than particularly. * * * " (Footnotes omitted.)

Legislative action produces a general rule or policy which applies to a general class of individuals, interests, or situations. Judicial or adjudicatory functions apply generally to identifiable persons and specific situations. 1 Am.Jur.2d Administrative Law § 164. We have held that annexation proceedings, Scarlett v. Town Council, Town of Jackson, Teton County, supra, zoning classifications, McGann v. City Council of City of Laramie, supra, and school unification proceedings, Lund v. Schrader, supra, are legislative in nature and, therefore, not reviewable under the Administrative Procedure Act. In Scarlett v. Town Council, Town of Jackson, Teton County, supra, we stated that the annexation proceedings did not require compliance with rules applicable to contested cases. However, we did review the record to see if there was substantial compliance with the requirements of the statutes providing for annexation.

We find that the issuance of IDR bonds is not a "legislative" function under our previous decisions referred to in the preceding paragraph. The bond determination is not a policy decision. It applies to named persons and a specific situation, rather than relating to a class of persons and general situations.

JUDICIAL REVIEW

The right of judicial review of an administrative decision is statutory. Actions of an administrative agent are not reviewable unless made so by statute. Legislative intent to restrict judicial review of an administrative action must be clear and persuasive reason must exist to believe that restriction was the legislative purpose. United States Steel Corp. v. Wyoming Environmental Quality Council, Wyo., 575 P.2d 749 (1978). See also, Walker v. Board of Cty. Comm'rs, Albany Cty., Wyo., 644 P.2d 772 (1982). We stated in Keslar v. Police Civil Service Comm'n, City of Rock Springs, Wyo., 665 P.2d 937 (1983) that:

"So far as policy considerations are concerned, it is our view that the interests of the State of Wyoming are best served by a policy which leads to reviewability in most instances. * * * " Id. at 942.

And, to preclude judicial review, the statute, if not specific in withholding that review, must give clear and convincing evidence of an intent to restrict. The mere failure to provide specially by statute for judicial review is certainly no evidence of intent to withhold. Section 16-3-114(a) of the Administrative Procedure Act states that:

"(a) Subject to the requirement that administrative remedies be exhausted and in the absence of any statutory or common-law provision precluding or limiting judicial review, any person aggrieved or adversely affected in fact by a final decision of an agency in a contested case, or by other agency action or inaction, or any person affected in fact by a rule adopted by an agency, is entitled to judicial review * * *."

Since the county is an agency under the Administrative Procedure Act and these particular actions are not within the exceptions of legislative functions nor statutory restriction of judicial review, we find that these issues are reviewable by this court.

Proceedings under the Wyoming Industrial Development Projects Act do not require a trial-type hearing as may be involved in a "contested case," nor are they governed by the proceedings applicable to rule making. But such proceedings are reviewable, at least with respect to minimum compliance with requirements of statutes providing for the issuance of these bonds, within the Administrative Procedure Act's definition of "other agency action."

Although not stated as an issue, appellee suggests that appellant has failed to show that it was a person aggrieved and adversely affected in fact.

In Washakie County School District No. 1 v. Herschler, Wyo., 606 P.2d 310, 317 (1980), we said:

"Standing is a concept used to determine whether a party is sufficiently affected to insure that a justiciable controversy is presented to the court. [Citation.] It is a necessary and useful tool to be used by courts in ferreting out those cases which ask the courts to render advisory opinions or decide an artificial or academic controversy without there being a palpable injury to be remedied. However, it is not a rigid or dogmatic rule but one that must be applied with some view to realities as well as practicalities. Standing should not be construed narrowly or restrictively. * * * "

We believe appellant has standing; but, since neither cogent argument nor authority were presented, we need not decide that question at this time. Reno Livestock Corp. v. Sun Oil Co. (Delaware), Wyo., 638 P.2d 147 (1981); Barnette v. Doyle, Wyo., 622 P.2d 1349 (1981); ...

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