Monaghan Farms, Inc. v. The Bd. of Cnty. Comm'rs of Albany Cnty., Wyo.

• Decision Date: 17 April 2023
• Docket Number: S-22-0127,S-22-0128
• Parties: MONAGHAN FARMS, INC., Appellant (Petitioner), v. THE BOARD OF COUNTY COMMISSIONERS OF ALBANY COUNTY, WYOMING, Appellee (Respondent), and CONNECTGEN ALBANY COUNTY LLC, Appellee (Intervenor). MICHAEL and MARDEE AANONSEN; MARJORIE and JACK BEDESSEM; SALLY BIEGERT; EDWARD and MARY ANN BOSANAC; STEPHANIE and BRIAN CONES; JOHN M. and SUSAN S. DAVIS; LESLIE-ANNE FAIRESHIRE and ROBERT KRUMBERGER; KEVIN and KARMEN FISKE; THOMAS and CLAUDIA HAMP; NATALIA JOHNSON and NICHOLAS OCEANAK; CHRISTINE KRATT; CHRISTOPHER KELLY; ANTHONY and JENNIFER KIRCHHOEFER; DYLAN and MISSY KRAMSCHUSTER; STEVE KRAMSCHUSTER; JILL and STEVE LEINEN; PAUL MATOSKY and RUTHIE SORENSEN; ALAN MINIER; MARY F. MOORE; PAUL and LYNN MONTOYA; LELAND and KAREN SCHERTZ; RUTH and STEVE SOMMERS; KIRK STONE; DENISE WALKUSCH; MICHELLE WHITE; MIRIA WHITE; RONALD WILSON; TOM and KELLY WOLFE, Appellants (Petitioners), v. THE BOARD OF COUNTY COMMISSIONERS OF ALBANY COUNTY, WYOMING, Appellee (Respondent), and CONNECTGEN ALBANY COUNTY LLC, Appellee (Intervenor).
• Court: Wyoming Supreme Court

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2023 WY 31

MONAGHAN FARMS, INC., Appellant (Petitioner), v. THE BOARD OF COUNTY COMMISSIONERS OF ALBANY COUNTY, WYOMING, Appellee (Respondent), and CONNECTGEN ALBANY COUNTY LLC, Appellee (Intervenor). MICHAEL and MARDEE AANONSEN; MARJORIE and JACK BEDESSEM; SALLY BIEGERT; EDWARD and MARY ANN BOSANAC; STEPHANIE and BRIAN CONES; JOHN M. and SUSAN S. DAVIS; LESLIE-ANNE FAIRESHIRE and ROBERT KRUMBERGER; KEVIN and KARMEN FISKE; THOMAS and CLAUDIA HAMP; NATALIA JOHNSON and NICHOLAS OCEANAK; CHRISTINE KRATT; CHRISTOPHER KELLY; ANTHONY and JENNIFER KIRCHHOEFER; DYLAN and MISSY KRAMSCHUSTER; STEVE KRAMSCHUSTER; JILL and STEVE LEINEN; PAUL MATOSKY and RUTHIE SORENSEN; ALAN MINIER; MARY F. MOORE; PAUL and LYNN MONTOYA; LELAND and KAREN SCHERTZ; RUTH and STEVE SOMMERS; KIRK STONE; DENISE WALKUSCH; MICHELLE WHITE; MIRIA WHITE; RONALD WILSON; TOM and KELLY WOLFE, Appellants (Petitioners), v. THE BOARD OF COUNTY COMMISSIONERS OF ALBANY COUNTY, WYOMING, Appellee (Respondent), and CONNECTGEN ALBANY COUNTY LLC, Appellee (Intervenor).

Nos. S-22-0127, S-22-0128

Supreme Court of Wyoming

April 17, 2023

Appeal from the District Court of Albany County The Honorable Tori R.A. Kricken, Judge

Representing Appellant, Monaghan Farms, Inc.: J. Mark Stewart, Davis &Cannon, LLP, Cheyenne, Wyoming. Argument by Mr. Stewart.

Representing Appellants, Michael and Mardee Aanonsen Marjorie and Jack Bedessem; Sally Biegert; Edward and Mary Ann Bosanac; Stephanie and Brian Cones; John M. and Susan S Davis; Leslie-Anne Faireshire and Robert Krumberger; Kevin and Karmen Fiske; Thomas and Claudia Hamp; Natalia Johnson and Nicholas Oceanak; Christine Kratt; Christopher Kelly; Anthony and Jennifer Kirchhoefer; Dylan and Missy Kramschuster; Steve Kramschuster; Jill and Steve Leinen; Paul Matosky and Ruthie Sorensen; Alan Minier; Mary F. Moore; Paul and Lynn Montoya; Leland and Karen Schertz; Ruth and Steve Sommers; Kirk Stone; Denise Walkusch; Michelle White; Miria White; Ronald Wilson; Tom and Kelly Wolfe: Mitchell H. Edwards and Philip A. Nicholas, Nicholas &Tangeman, LLC, Laramie, Wyoming. Argument by Mr. Edwards.

Representing Appellee, the Board of County Commissioners of Albany County, Wyoming: Matthew E. Ayres, Jennifer M. Curran, and E. Kurt Britzius, Albany County &Prosecuting Attorney's Office, Laramie, Wyoming. Argument by Mr. Ayres.

Representing Appellee, ConnectGen Albany County LLC: Timothy M. Stubson, Crowley Fleck PLLP, Casper, Wyoming; O'Kelley H. Pearson, Parker Poe Adams &Bernstein LLP, Atlanta, Georgia. Argument by Mr. Stubson.

Before FOX, C.J., and KAUTZ, BOOMGAARDEN, GRAY, and FENN, JJ.

GRAY Justice.

[¶1] The matter before us arises from two separate cases consolidated on appeal. ConnectGen Albany County LLC (ConnectGen) applied for a Wind Energy Conversion System (WECS) permit to construct a wind farm on land in Albany County. The Board of County Commissioners of Albany County (Board) approved the application. Nearby property owners (Landowners) and Monaghan Farms, Inc., (Monaghan Farms) sought judicial review, and the district court affirmed. The Landowners and Monaghan Farms (collectively Appellants) appeal. We affirm.

ISSUES

[¶2] We consolidate and rephrase the issues as follows:

1. Was ConnectGen required to obtain a conditional use permit in addition to the WECS special use permit?

2. Was the Board's approval of the WECS special use permit application arbitrary and capricious?

3. Was the Board's approval of the WECS special use permit a taking of private property in violation of Wyo. Const. art. 1, § 32?

FACTS

[¶3] On March 5, 2021, ConnectGen submitted its application for a WECS special use permit to the Board seeking approval to construct a 120-turbine wind farm, with accompanying infrastructure, on approximately 26,000 acres of land in southeastern Albany County (the Project). The Project area is comprised of state and private land zoned as Agricultural. It abuts property also zoned Agricultural owned by Monaghan Farms and is surrounded by other land zoned Agricultural and Rural Residential, some of which is owned and/or occupied by the Landowners.

[¶4] On April 6, 2021, the Board scheduled a hearing for public comment on June 1, 2021. Written comments were accepted through June 1, and additional public comment was received at the hearing. After the hearing, the Board submitted written questions to ConnectGen, seeking additional information. ConnectGen's responses were made public through the County's website.

[¶5] The Board held a special meeting on July 13, 2021. At that meeting the Board, on oral motion, approved ConnectGen's WECS permit, subject to the following conditions:

1. Turbines will be setback one mile from existing nonparticipating residential dwellings. This setback may be waived by the affected property owner . . . in accordance with the Albany County Zoning Resolution (ACZR), Chapter 5, Section 12, G, 7, i;

2. Fire suppression systems will be installed in all turbines; 3. Blasting will only occur during daylight hours;

4. If a non-participating property owner suspects noise levels exceed 55 dBA at the property lines (ACZR, Chapter 5, Section 12, G, 3) and this is brought to the attention of ConnectGen (or the current owner of the project) or Albany County, ConnectGen or current owner will take steps to confirm a violation of the standard and rectify it upon its confirmation;

5. Turbines will be setback 1.5 times the height of the nacelle^[1] plus the diameter of the turbine blades from public roads;

6. If an Aircraft Detection Lighting Systems (ADLS) is not approved for this project by the Federal Aviation Administration, ConnectGen (or the current project owner) shall ask for a variance from the Board of County Commissioners for any affected towers;

7. A County Road use and maintenance agreement shall be approved by the Board of County Commissioners prior to any development within the project boundaries (ACZR Chapter 12, G, 9);

8. All commitments made as part of this application and these conditions will be passed on to future project owners; and 9. ConnectGen will work with any property owner claiming to be affected by shadow flicker in excess of the industry standard of 30 hours per year.

The Albany County Planning Office (Planning Office) sent a letter to ConnectGen "to confirm that ConnectGen Albany County's . . . Rail Tie Wind Project Application WEC-01-21 was approved by the [Board] on July 13, 2021, with conditions." By letter, ConnectGen accepted the conditions imposed in the WECS permit. Other than the Planning Office letter, the minutes of the July 13, 2021 meeting, and a June 1, 2021 Planning Office Staff Report (Staff Report) recommending approval, no written findings were issued by the Board.

[¶6] On August 12, 2021, Monaghan Farms and the Landowners filed separate Petitions for Review in the district court. The district court affirmed the Board's approval of ConnectGen's application. Monaghan Farms and the Landowners timely appeal.

STANDARD OF REVIEW

[¶7] We review an agency's decision as if it came directly to us, giving no deference to the district court's decision. HB Fam. Ltd. P'ship v. Teton Cnty. Bd. of Cnty. Comm'rs, 2020 WY 98, ¶ 32, 468 P.3d 1081, 1091 (Wyo. 2020) (citing Hardy v. State ex rel. Dep't of Workforce Servs., Workers' Comp. Div., 2017 WY 42, ¶ 10, 394 P.3d 454, 457 (Wyo. 2017)). Because the proceedings before the Board were informal, Wyo. Stat. Ann. § 16-3-114(c)(ii)(A) governs our review. HB, ¶ 33, 468 P.3d at 1091. We will set aside an agency decision that is "[a]rbitrary, capricious, an abuse of discretion or otherwise not in accordance with law." Wyo. Stat. Ann. § 16-3-114(c)(ii)(A) (LexisNexis 2021). See Tayback v. Teton Cnty. Bd. of Cnty. Comm'rs, 2017 WY 114, ¶ 13, 402 P.3d 984, 988 (Wyo. 2017); Wilson Advisory Comm. v. Bd. of Cnty. Comm'rs, 2012 WY 163, ¶ 20, 292 P.3d 855, 861 (Wyo. 2012).

The arbitrary and capricious test requires the reviewing court to review the entire record to determine whether the agency reasonably could have made its finding and order based upon all the evidence before it. The arbitrary and capricious standard is more lenient and deferential to the agency than the substantial evidence standard because it requires only that there be a rational basis for the agency's decision.

HB, ¶¶ 32-35, 468 P.3d at 1091-92 (quoting Tayback, ¶ 13, 402 P.3d at 988 (quoting Wilson, ¶ 21, 292 P.3d at 861)).

[¶8] An agency's conclusions of law and interpretation of statutes and their implementing regulations are questions of law that we review de novo. HB, ¶ 33, 468 P.3d at 1091; Powder River Basin Res. Council v. Wyoming Dep't of Env't Quality, 2010 WY 25, ¶ 6, 226 P.3d 809, 813 (Wyo. 2010). Constitutional questions are questions of law subject to de novo review. See Accelerated Receivable Sols. v. Hauf, 2015 WY 71, ¶ 11, 350 P.3d 731, 734 (Wyo. 2015); Cir. Ct. of Eighth Jud. Dist. v. Lee Newspapers, 2014 WY 101, ¶ 9, 332 P.3d 523, 527 (Wyo. 2014).

DISCUSSION

I. Was ConnectGen required to obtain a conditional use permit in addition to the WECS special use permit?

[¶9] The Appellants argue that the Albany County Zoning Resolution (ACZR) requires ConnectGen to obtain a conditional use permit in addition to the WECS special use permit. They contend that without a conditional use permit, the Board's approval of the WECS special use permit is "not in accordance with [the] law and must be set aside" pursuant to Wyo. Stat. Ann. § 16-3-114(c)(ii)(A).

[¶10] Chapter 4 of the ACZR contains a table that "sets forth the land uses allowed for new development in the established zoning districts." ACZR ch. 4, § 1. The table reflects that a conditional use is allowed in areas zoned Agricultural (A) and Industrial (I). It also shows that WECSs are prohibited in all...