NORTHFORK v. Board

• Decision Date: 08 April 2010
• Docket Number: S-09-0149.,No. S-09-0148,S-09-0148
• Citation: 228 P.3d 838,2010 WY 41
• Parties: NORTHFORK CITIZENS FOR RESPONSIBLE DEVELOPMENT, David Jamison, an individual, and Robert Hoszwa, an individual, Appellants (Petitioners), v. BOARD OF COUNTY COMMISSIONERS OF PARK COUNTY, Appellee Respondent, and Worthington Group of Wyoming, LLC, Appellee (Respondent-Intervenor). Worthington Group of Wyoming, LLC, Appellant (Respondent-Intervenor), v. Board of County Commissioners of Park County, Appellee (Respondent), and Northfork Citizens for Responsible Development, David Jamison, an individual, and Robert Hoszwa, an individual, Appellees (Petitioners).
• Court: Wyoming Supreme Court

228 P.3d 838

2010 WY 41

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

Worthington Group of Wyoming, LLC, Appellant (Respondent-Intervenor), v. Board of County Commissioners of Park County, Appellee (Respondent), and Northfork Citizens for Responsible Development, David Jamison, an individual, and Robert Hoszwa, an individual, Appellees (Petitioners).

Nos. S-09-0148, S-09-0149.

Supreme Court of Wyoming.

April 8, 2010.

COPYRIGHT MATERIAL OMITTED

Representing Northfork Citizens for Responsible Development, David Jamison, and Robert Hoszwa: Debra J. Wendtland and Anthony T. Wendtland of Wendtland & Wendtland, LLP, Sheridan, Wyoming. Argument by Ms. Wendtland.

Representing Board of County Commissioners of Park County: James F. Davis, Deputy Park County Attorney, Cody, Wyoming.

Representing Worthington Group of Wyoming, LLC: Laurence W. Stinson and Dawn R. Scott of Bonner Stinson, P.C., Cody, Wyoming. Argument by Mr. Stinson.

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

VOIGT, Chief Justice.

¶ 1 Northfork Citizens for Responsible Development, David Jamison, and Robert Hoszwa (collectively Northfork) have appealed the district court's affirmance of the approval by the Board of County Commissioners of Park County (the Board) of a subdivision proposed by Worthington Group of Wyoming, LLC (Worthington).¹ Northfork raises evidentiary and procedural issues. In a cross-appeal, Worthington contends that Northfork's issues are moot because Worthington has built the subdivision. We find that the appeal is not moot. We affirm in part and reverse in part, and remand to the district court for further remand to the Board for proceedings consistent with this opinion.

ISSUES

¶ 2 1. Are Northfork's issues moot because, Northfork having sought neither a stay nor an injunction, Worthington built the subdivision while the appeal was pending?

2. Did the Board violate county regulations and state law by allowing county officials to waive mandated collection of information at an early stage of development on the ground that such information would be collected at a later stage?

3. Did the Board violate county regulations by approving a final plat that was not consistent with the sketch plan?

4. Is the Board's finding that the subdivision has a dependable water source supported by substantial evidence?

5. Did the Board's approval of the subdivision's open space plan violate county regulations?

6. Was Northfork unlawfully denied intervention in the contested case hearing?

7. Did the Board violate county regulations by allowing dedication of subdivision roads for only limited public use?

8. Did the Board violate county regulations and state law by allowing gated access to the subdivision?

9. Did the Board violate county regulations by allowing multi-family dwellings on a portion of the subdivision?

FACTS

¶ 3 In Park County, the developer of a proposed subdivision must obtain sketch plan approval, final plat approval, and a special use permit. At issue in the instant case is the Board's application of that process and its eventual approval of the Copperleaf Subdivision (the subdivision), which is located on approximately 553 acres of land along the North Fork of the Shoshone River, west of Cody. In Northfork Citizens for Responsible Development v. Park County Board of County Commissioners, 2008 WY 88, ¶ 16, 189 P.3d 260, 264-65 (Wyo.2008) (Northfork I), this Court determined that the Northfork group, who are neighboring or area landowners, had standing to petition for judicial review of the Board's approval of the subdivision. Upon remand, the district court affirmed the Board. These inter-related appeals followed.

¶ 4 In October 2004, Worthington submitted to the Park County Planning & Zoning Commission (the Commission) and the Board a sketch plan and special use permit application for development of the subdivision. Northfork filed numerous written objections and appeared at all Commission hearings regarding the project. The Commission held a public hearing on November 30, 2004, at which hearing Worthington agreed to change its proposed water source from individual wells to a centralized system. On December 8, 2004, the Board denied Northfork's attempted appeal of various "determinations and/or interpretations" made by the planning coordinator in his review of the sketch plan and special use permit application. In addition to finding, in effect, that the appeal was premature, the Board specifically stated the following:

....

WHEREAS, evidence of adequate capacity for water and sewer is necessary between the sketch plan and final plat stage in the review process for approval or denial of a subdivision, but is not necessary at the sketch plan/special use permit stage during concurrent review; and

WHEREAS, the Commission and the Board will have the ability to review the adequacy of water and sewer capacity as is required by both the zoning regulations and development standards and regulations, as well as the other items listed in the written letter of appeal during the normal process of the subdivision/special use permit review; and

WHEREAS, at the sketch plan/special use permit stage, under circumstances where the applicant has sought concurrent review of the sketch plan and special use permit application, the Planning Coordinator may waive items of information listed as required;

....

¶ 5 The Commission held a second public hearing on December 21, 2004, to continue discussing both the sketch plan and the special use permit application. On the same date, the Commission approved the sketch plan and recommended approval of the special use permit, conditioned to ensure that "adequate services and infrastructure are available to serve the use, or the applicant has agreed to provide services and infrastructure in sufficient time to serve the proposed use."

¶ 6 On December 28, 2004, Northfork appealed the Commission's resolution, raising many of the issues presently before the Court in this appeal, including procedural defects, insufficient information in the application, gated access, road dedication, open space requirements, multi-family dwellings, and water and sewer systems. The Board denied the appeal as it applied to the special use permit, finding that no such appeal right existed, but agreed to hear the appeal as it applied to sketch plan issues. The Board conducted a public hearing on January 25, 2005, and on February 8, 2005 issued a resolution in which it found against Northfork on some issues, found that some issues were not ripe for appeal because they were not sketch-plan issues—this category including water and sewer services—and remanded some issues to the Commission for further consideration—this category including open space requirements. Of special significance to the present appeal is the Board's interpretation of its subdivision regulations as not requiring certain sketch plan information in the context of a major subdivision development, because such information is to be provided at the final plat stage.

¶ 7 The Commission held a public meeting on March 15, 2005, to consider the matters remanded to it by the Board. As concerns this appeal, the Commission thereafter issued Resolution No. 2005-13, in which a "Revised Sketch Plan" with re-drawn open space boundaries was approved. The new open space plan consisted of connecting previously separate open space parcels with "corridors" dedicated as open space. Northfork's appeal of this resolution was denied by the Board on April 19, 2005, on the ground that the resolution involved only ministerial acts that remained subject to Board review.

¶ 8 On March 31, 2005, the Board held a public hearing on Worthington's special use permit application. For the next couple of months Worthington and Northfork dueled over the water supply issue, eventually drawing both the State Engineer's Office and the Department of Environmental Quality (DEQ) into the fray. The details of that conflict will be discussed in more detail in the section of this opinion dealing with substantial evidence as to the water source. Suffice it to say for present purposes that, when the Board approved the special use permit via its Resolution No. 2005-40 on June 21, 2005, it did so based upon Worthington's agreement to provide "service and infrastructure in time to serve the proposed use."

¶ 9 Not surprisingly, the water supply issue survived approval of the special use permit, with Worthington identifying and then abandoning various water sources. On October 28, 2005, DEQ issued a "no adverse recommendations" letter based upon a proposed public water supply system using water taken from the North Fork of the Shoshone River, with a permit for 200 gallons per minute. Two months later, on December 28, 2005, Worthington filed the final plat for the subdivision.

¶ 10 The Board discussed and voted to approve the final plat at a regularly scheduled meeting on March 7, 2006. Resolution No. 2006-16, carrying that vote into effect, was issued on March 14, 2006. The Resolution contained the following lengthy finding in regard to the subdivision's water supply:

The Board finds that DEQ, in consultation with the Wyoming State Engineer has reviewed the Developer's plan for a central water distribution system drawing water from the Northfork of the Shoshone River under a water permit issued by the Wyoming State Engineer in May 2005 for year-round direct flow in the amount of 200 gallons per minute, and that the subdivision at full build-out (131 lots) will not require said amount of water according to calculations in the file and otherwise of record undisputed by any other calculations of record, and that the Developer has provided information in the file

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