Northfork Citizens v. Park County Bd.

• Decision Date: 29 July 2008
• Docket Number: No. S-07-0258.,S-07-0258.
• Citation: 2008 WY 88,189 P.3d 260
• Parties: NORTHFORK CITIZENS FOR RESPONSIBLE DEVELOPMENT; David Jamison, an individual; and Robert Hoszwa, an individual, Appellants (Petitioners), v. PARK COUNTY BOARD OF COUNTY COMMISSIONERS, Appellee (Respondent), and Worthington Group of Wyoming, LLC, Appellee (Intervenor/Respondent).
• Court: Wyoming Supreme Court

189 P.3d 260

2008 WY 88

NORTHFORK CITIZENS FOR RESPONSIBLE DEVELOPMENT; David Jamison, an individual; and Robert Hoszwa, an individual, Appellants (Petitioners), v. PARK COUNTY BOARD OF COUNTY COMMISSIONERS, Appellee (Respondent), and Worthington Group of Wyoming, LLC, Appellee (Intervenor/Respondent).

No. S-07-0258.

Supreme Court of Wyoming.

July 29, 2008.

Representing Appellants: Anthony Todd Wendtland and Debra J. Wendtland, Wendtland & Wendtland, LLP, Sheridan, Wyoming. Argument by Ms. Wendtland.

Representing Appellee, Park County Board of County Commissioners: Bryan A. Skoric, County Attorney and James F. Davis, Deputy County Attorney, Park County Attorney's Office, Cody, Wyoming. Argument by Mr. Davis.

Representing Appellee, Worthington Group of Wyoming, LLC: Dawn Rae Scott and Laurence W. Stinson, Bonner Stinson, PC, Powell, Wyoming. Argument by Mr. Stinson.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

BURKE, Justice.

[¶ 1] In a series of administrative decisions, the Park County Commissioners approved plans by Worthington Group of Wyoming, LLC, to develop a residential subdivision known as Copperleaf. Northfork Citizens for Responsible Development, David Jamison, and Robert Hoszwa sought judicial review. On Worthington's motion, the district court dismissed the petition for judicial review on the basis that Northfork, Mr. Jamison, and Mr. Hoszwa lacked standing. On appeal, we conclude that they do have standing, and so reverse the district court's decision.

ISSUE

[¶ 2] The sole issue is whether Northfork, Mr. Jamison, and Mr. Hoszwa have standing to obtain judicial review of the County's decisions approving the Copperleaf subdivision.

FACTS

[¶ 3] In 2004, Worthington's predecessor in interest began seeking approval to develop the Copperleaf subdivision on property along the north fork of the Shoshone River in Park County, Wyoming. It proposed to develop 155 residences on approximately 550 acres. Of those residences, 131 are planned as single family homes on lots ranging from 1.1 to 2.6 acres,¹ and twelve are planned as duplexes with 24 total housing units on twelve acres designated as "Tract F." A large portion of the remaining acreage is proposed for open space, with additional acreage dedicated to uses such as roads and utilities.

[¶ 4] Mr. Jamison and Mr. Hoszwa own and live on property adjoining Copperleaf. More specifically, their property is adjacent to Tract F, the area where Worthington proposes to develop duplexes. Northfork is a Wyoming nonprofit corporation that purports to represent a number of Park County residents, including Mr. Jamison and Mr Hoszwa. The organization opposes the development of Copperleaf as proposed by Worthington, and has expressed its concerns vigorously on numerous occasions.

[¶ 5] Park County has established administrative requirements and procedures for obtaining approval of a subdivision. Details of how Worthington worked through the process are not pertinent at this stage, and it is sufficient to note that the County approved Worthington's proposal for Copperleaf. Northfork, Mr. Jamison, and Mr. Hoszwa appealed to the district court for judicial review of the subdivision's approval. Worthington filed a motion to dismiss, asserting that Northfork, Mr. Jamison, and Mr. Hoszwa lacked standing to maintain their appeal. The district court granted the motion, and Northfork, Mr. Jamison, and Mr. Hoszwa seek our review of that decision.

STANDARD OF REVIEW

[¶ 6] "The existence of standing is a legal issue that we review de novo." Halliburton Energy Services v. Gunter, 2007 WY 151, ¶ 10, 167 P.3d 645, 649 (Wyo.2007).

DISCUSSION

[¶ 7] Northfork, Mr. Jamison, and Mr. Hoszwa seek judicial review of an administrative agency decision pursuant to Wyoming's Administrative Procedure Act, which provides in part that

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 in the district court.

Wyo. Stat. Ann. § 16-3-114(a) (LexisNexis 2007). If Northfork, Mr. Jamison, and Mr. Hoszwa are "aggrieved or adversely affected in fact" by the decisions of the Park County Commissioners, then they have standing to maintain their appeal.

[¶ 8] In the parties' briefs, Northfork is variously described as a nonprofit corporation, an association, and an organization. The Wyoming Administrative Procedure Act includes corporations, associations, and organizations within the definition of a "person" who may seek judicial review. Wyo. Stat. Ann. § 16-3-101(b)(vii). Northfork contends that, as an association or organization, it has standing if one or more of its members can establish standing. See International Ass'n of Fire Fighters, Local No. 279 v. Civil Service Comm'n of Fire Department of City of Cheyenne, 702 P.2d 1294, 1298 (Wyo.1985) (Thomas, C.J., specially concurring) (citing Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). Northfork's standing as an association could be better established if the record more clearly indicated the nature of the relationship between Northfork and the people it purports to represent. The parties' briefs tell us only that Mr. Jamison and Mr. Hoszwa are "members" of Northfork, that Northfork "includes" Mr. Jamison and Mr. Hoszwa, and that Northfork is "comprised of" Mr. Jamison, Mr. Hoszwa, and others. However, the County and Worthington appear to concede that Northfork has standing if Mr. Jamison and Mr. Hoszwa have standing. Accordingly, we proceed to consider whether those two individuals have standing.

[¶ 9] Standing under the Wyoming Administrative Procedure Act has been explained this way:

An aggrieved or adversely affected person is one who has a legally recognizable interest in that which will be affected by the action. Hoke v. Moyer, 865 P.2d 624, 628 (Wyo.1993). A potential litigant must show injury or potential injury by "alleg[ing] a perceptible, rather than a speculative, harm resulting from the agency action." Foster's, Inc. v. City of Laramie, 718 P.2d 868, 872 (Wyo.1986). "The interest which will sustain a right to appeal must generally be substantial, immediate, and pecuniary. A future, contingent, or merely speculative interest is ordinarily not sufficient." L Slash X Cattle Company, Inc. v. Texaco, Inc., 623 P.2d 764, 769 (Wyo.1981).

Roe v. Board of County Comm'rs, Campbell County, 997 P.2d 1021, 1023 (Wyo.2000). More specifically, in the context of zoning and land use law, we have stated that an aggrieved or adversely affected person having standing to sue is a person who has a legally recognizable interest that is or will be affected by the action of the zoning authority in question. An individual having standing must have a definite interest exceeding the general interest in community good shared in common with all citizens.

Hoke, 865 P.2d at 628 (quoting E.C. Yokley, 4 Zoning Law and Practice § 24-3 at 194 (4th ed. 1979) (footnote omitted)).

[¶ 10] Mr. Jamison and Mr. Hoszwa emphasize the fact that they own and live on property adjoining Copperleaf. They rely on cases holding that landowners have standing to appeal land use decisions that result in the doubling of density on adjoining property. In Hoke, we stated as follows:

Doubling the density of adjacent property raises a number of perceptible harms for a property owner which are different than the harm to the general public, such as increased traffic and congestion; therefore, [the adjacent landowner] was entitled to judicial review of the board's action by the district court and now by this court.

865 P.2d at 628. We have also "held that an adjoining landowner has standing when the effect of the board's decision will be to double the density previously permitted." Hirschfield v. Board of County Comm'rs of County of Teton, 944 P.2d 1139, 1143 (Wyo.1997).

[¶ 11] The County and Worthington contend that the approved development plan for Copperleaf does not double the housing density on the property. Under the plan, single family homes will be built on property that was previously zoned for a density of one house per five acres.² Worthington opted for what the County regulations call a "grouped-lot" plan, which means that the houses are clustered on smaller lots, while more open space is preserved. Copperleaf proposes to build houses on lots of approximately one to two acres in size, and a little more than half of the subdivision property will be devoted to open space. Thus, according to the County and Worthington, Copperleaf's grouped-lot plan changes the configuration of the houses, but with no appreciable increase in the total number of houses. Because the increase in housing density is minimal, the County and Worthington assert that Mr. Jamison and Mr. Hoszwa cannot rely on Hoke and Hirschfield to assert their standing.

[¶ 12] The district court apparently agreed with the County and Worthington. It found that Mr. Jamison and Mr. Hoszwa are adjacent landowners, but ruled that they had not "presented specific facts that demonstrate how they have been injured by the [County's] decision to approve the Copperleaf Subdivision." Consequently, the district court concluded that this case was

similar to the situation in Roe v. Board of County [Commr's of Campbell County], 997 P.2d 1021 (Wyo.2000), wherein the Roes did not present specific facts to demonstrate how they have been injured by the board's decision to approve [the] Subdivision.

Roe, however, is readily distinguishable from the present case. For one thing, the Roes never alleged that they were adjacent landowners. For another, the...