Schoeller v. Board of County Com'rs of Park County, 4717

• Citation: 568 P.2d 869
• Decision Date: 18 August 1977
• Docket Number: No. 4717,4717
• Parties: Forrest J. SCHOELLER and Joyce L. Schoeller, husband and wife, Appellants (Defendants below), v. BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF PARK, State of Wyoming, Appellee (Plaintiff below).
• Court: United States State Supreme Court of Wyoming

Page 869

568 P.2d 869

Forrest J. SCHOELLER and Joyce L. Schoeller, husband and wife, Appellants (Defendants below), v. BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF PARK, State of Wyoming, Appellee (Plaintiff below).

No. 4717.

Supreme Court of Wyoming.

Aug. 18, 1977.

Elmer J. Scott, of Scott & Shelledy, Worland, for appellants.

Joseph E. Darrah, County Atty., Park County, Powell, George L. Simonton, Cody, and Rick Anderson, Powell, for appellee.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

ROSE, Justice.

Forrest J. Schoeller and Joyce L. Schoeller, husband and wife, appeal from a judgment permanently enjoining them from violating a zoning resolution by which they were denied the right to operate a store on their property in an unincorporated area of Park County, Wyoming.

The issues described by the appellants for our consideration are these:

1. Did the Board of County Commissioners have the authority to adopt an interim regulation?

2. Was the regulation legally adopted?

3. Was the regulation, adopted as a temporary measure August 1, 1971, enforceable through March, 1976, the date of trial?

The trial court ruled generally that the zoning regulation was valid and entered an injunction prohibiting the defendants from operating their grocery store.

We will reverse the trial court.

FACTS

On April 17, 1975, the Board of County Commissioners of the County of Park filed a complaint against Mr. and Mrs. Schoeller alleging that, by operating a general store without a variance from a certain resolution freezing existing land uses, they were in violation of § 18-289.6, W.S.1957, 1975 Cum.Supp. ¹ That statute provides that no person shall locate, erect, change, maintain or use any building in violation of a resolution adopted by any board of county commissioners under § 18-289.4, W.S.1957, 1975 Cum.Supp. ² The complaint sought a temporary injunction restraining operation of the general store pending the litigation, a permanent injunction restraining the operation of the store until a variance is obtained, assessment of a fine, and award of costs. The matter was tried on March 26, 1976. The sole relief granted was a permanent injunction, from which order and judgment the defendants appeal.

The central question for our attention concerns the validity of the resolution with respect to which the appellants' actions were found to be violative. In order to decide this issue, inquiry into all of the circumstances surrounding the passage of the resolution is essential.

In the pursuit of the promotion of the public's health, safety, morals and general welfare ³, the Wyoming Legislature, in 1959, passed the County Zoning Act (§§ 18-289.1 to 18-289.9, W.S.1957, 1975 Cum.Supp.), and it is the Commissioner's contention that the Schoellers are in violation of § 18-289.6 thereof (Note 1, supra). By authority of the County Zoning Act, the several boards of county commissioners in Wyoming are empowered to appoint a planning and zoning commission for their respective counties, which commission is, in turn, authorized to formulate and recommend to the boards of county commissioners a comprehensive county zoning plan for the various counties. There are no other provisions in the Zoning Act which contemplate the adoption of any other type of zoning scheme. Specifically, there are no separate provisions which contemplate the adoption of an interim or emergency plan for the unincorporated areas of the counties.

At its meeting on January 5 and 6, 1960, the Board of County Commissioners of Park County created a zoning commission, and in the late 1960's the unincorporated areas within three miles of the Cities of Powell and Cody were zoned.

In 1971, the Park County Zoning and Planning Commission discussed emergency zoning at various public meetings. Advisory groups had been organized to represent different areas of the community, and at an August meeting there was a request that the commission adopt an emergency zone plan. In response, the zoning commission passed a resolution requesting that the Board of County Commissioners meet at once in special session and adopt an emergency resolution which would have the effect of maintaining the land-use status quo in any unzoned area within the county until a comprehensive county-wide zoning plan could be formulated and recommended.

One week later, on August 24, 1971, and without published notification of its intentions or a public hearing called for the purpose of considering the specific issue, the Board of County Commissioner adopted an "emergency" resolution which was by its own provisions to remain effective for a period of approximately seven months

that is, until April, 1972. The resolution contemplated that a public hearing would be held within five weeks, or on or before October 1, 1971, for the purpose of determining the desirability of continuing the status quo until a comprehensive plan could be devised. Notice of the resolution was published on September 2, 1971, but no hearing was ever held. In the meantime, landowners were prohibited from utilizing their land in the unincorporated or unzoned areas of Park County for any purpose different than that for which it was then being used without prior written consent of the County Commissioners. Because of its importance, we repeat this resolution verbatim:

"RESOLUTION

"WHEREAS the Board of County Commissioners of Park County, Wyoming, has by Resolution, established and created a Planning and Zoning Commission in accordance with Sec. 18-289.2, Wyoming Statutes, 1957, as Amended ⁴; (Footnote ours) and

"WHEREAS in connection with such Resolution, a Commission of five (5) members has been appointed; and

"WHEREAS the Planning and Zoning Commission is to prepare and submit a comprehensive plan, including zoning for all unincorporated areas of the County, to promote the public health, safety, morals and general welfare of said unincorporated area; and

"WHEREAS the Board of County Commissioners for Park County, Wyoming, has determined to call a public meeting within the next forty-five (45) days and to present before the public at that meeting the recommendations of the Planning and Zoning Commission of Park County, Wyoming, which recommendations were certified to said Board asking that an emergency resolution be adopted for Park County for the purpose of maintaining the status quo as to the use of land in unincorporated and unzoned areas of the County until a comprehensive plan can be submitted and made operational; and

"WHEREAS an emergency does exist and it is desirable to maintain the status quo as to the use of the unincorporated areas of the County until such time as a public hearing can be held pursuant to Sec. 18-289.4, Wyoming Statutes, 1957, as Amended determining the desirability of continuing status quo until a comprehensive plan can be devised, presented and approved by this Board.

"NOW, THEREFORE IT IS HEREBY RESOLVED that no person or corporation or entity shall use any land in the unincorporated or unzoned areas of Park County for any different purpose than it is now being used without the prior written consent of this body.

"IT IS FURTHER RESOLVED that any change in the use of such land in the unincorporated or unzoned areas of the "IT IS FURTHER RESOLVED that this Resolution shall take effect immediately and be in full force and effect until October 1, 1971, which affords sufficient time for a public hearing to be held by this Board pursuant to Sec. 18-289.4, Wyoming Statutes, 1957, as Amended, to enable this Board to determine whether or not the recommendation of the Planning and Zoning Commission that an emergency resolution maintaining the status quo as to the use of land in the unincorporated or unzoned areas of the County of Park till said comprehensive plan may be submitted, approved and made operational by this Board be adopted on or before April 1, 1972."

County of Park, should be in the interest of the public health, safety and morals of the general welfare of this County.

Again, without notice or hearing, the County Commissioners, at their meeting held March 7 and 8, 1972, adopted another resolution extending the original emergency zoning resolution from April 1, 1972 to April 1, 1973. Similar resolutions were adopted in like manner in 1973 and 1974, extending the original resolution of the Commissioners to April 1, 1975, and, thereafter, the land-freeze was extended for six months more or until a county-wide zoning plan could be presented and accepted. The next action taken by the Board in regard to land-use planning occurred at its meeting on July 1 and 2, 1975, when it tabled a proposed comprehensive plan, though accepting it "in principle." In early September of 1975, the Board again extended the freeze, which would have expired in October, for another six months.

The ultimate result of the Board actions was to impose a freeze upon all the land in the unincorporated areas of Park County for five years. Since the imposition of the original land-use freeze of 1971, the Planning and Zoning Commission had under consideration a proposed "comprehensive plan," but this was not its primary concern. The minutes of its meetings show more attention was directed to the enforcement of zoning resolutions and subdivision regulations that had already been enacted than to evolving a county-wide comprehensive zoning plan.

HOLDING

The County Commissioners' "emergency" resolution of August 24, 1971, freezing existing land-use in Park County without previously publishing a notice and holding a public meeting as provided by law, was initially a valid exercise of its implied power to do those thing which would make its express power to regulate and restrict the use of buildings and land in unincorporated areas of the county meaningful. This temporary land-freeze, however, became a permanent land-plan, which, under the statutes of this state, cannot be implemented without complying with the...