Sheridan County Comm'n v. V. O. Gold Properties Llc

• Decision Date: 04 February 2011
• Docket Number: No. S–10–0071.,S–10–0071.
• Citation: 247 P.3d 48,2011 WY 16
• Parties: SHERIDAN COUNTY COMMISSION, Sheridan County, Wyoming, Appellant (Respondent),v.V.O. GOLD PROPERTIES, LLC, Appellee (Petitioner).
• Court: Wyoming Supreme Court

247 P.3d 48

2011 WY 16

SHERIDAN COUNTY COMMISSION, Sheridan County, Wyoming, Appellant (Respondent),v.v.O. GOLD PROPERTIES, LLC, Appellee (Petitioner).

No. S–10–0071.

Supreme Court of Wyoming.

Feb. 4, 2011.

Representing Appellant: Matthew F. Redle and Lynn M. Smith of the Sheridan County Attorney's Office, Sheridan, Wyoming. Argument by Mr. Redle.Representing Appellee: Eric K. Nelson of Brown, Drew & Massey, LLP, Casper, Wyoming.Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.VOIGT, Justice.

[¶ 1] The Board of County Commissioners of Sheridan County (the Board) appeals from a district court order reversing the Board's denial of a subdivision permit application submitted by V.O. Gold Properties, LLC (Gold) and remand of the matter to the Board for further proceedings. The Board concedes that the agency record is inadequate to allow judicial review, and concedes that remand is necessary to make a complete record. On appeal, the Board asks whether the hearing it will provide upon remand must be a contested case hearing, or may be a public hearing. We conclude that a contested case hearing is not required.

ISSUE

[¶ 2] Is a subdivision applicant under Wyo. Stat. Ann. § 18–5–301 et seq. (LexisNexis 2009) entitled to a contested case hearing?

FACTS

[¶ 3] The relevant facts of this case are not many and are not disputed. Gold owns certain property in Sheridan County. In 2007, at Gold's request, the Board rezoned the property from agricultural to rural residential. Sometime prior to January 7, 2009, Gold submitted a subdivision and final plat application to the Sheridan County Public Works Department. On January 7, 2009, after allowing for public comment, the Sheridan County Planning and Zoning Commission (the Commission) recommended denial of the application. Gold requested, and was granted, a hearing before the Board to review the Commission's recommendation. The Board allowed Gold to continue to pursue the application. After allowing additional public comment, the Commission on April 1, 2009, again recommended denial of the application. On April 21, 2009, after a public hearing, the Board denied the application. The record basis for the Board's decision is limited to the minutes of the April 21, 2009, meeting because the Board's recording equipment failed. No separate findings of fact, conclusions of law, or final order were entered.

[¶ 4] Gold filed a Petition for Review in the district court on May 21, 2009. The allegations in that petition were that the Board's decision (1) was arbitrary, capricious, an abuse of discretion, and not in conformity with the law; (2) was made without observing procedures required by law; and (3) was not supported by substantial evidence. The district court heard the matter on December 1, 2009, and issued a decision letter on March 1, 2010. The district court determined (1) that the Board's actions were adjudicative and were, therefore, subject to judicial review, and (2) that the agency record was insufficient to allow judicial review. The district court “waffled” on the question now before this Court, remanding the matter to the Board for an “appropriate” hearing and declining “to mandate a contested case hearing under all circumstances.”

DISCUSSION

[¶ 5] The Board's concessions make it unnecessary for us to answer “substantive” questions about the Board's decision, because the Board will make a new decision upon remand. The question we must answer is what procedure the Board is to follow in reaching that decision; that is, is a public hearing sufficient, or must a contested case hearing be held? That is a question of law that we review de novo. Hall v. Perry, 2009 WY 83, ¶ 13, 211 P.3d 489, 494 (Wyo.2009); Union Pac. Res. Co. v. Dolenc, 2004 WY 36, ¶ 13, 86 P.3d 1287, 1291 (Wyo.2004).

[¶ 6] We have said many, many times that “if no statute or other law requires the ‘legal right, duties or privileges of a party’ to be determined at a trial type hearing, no contested case proceeding is required.” Northfork Citizens for Responsible Dev. v. Bd. of County Comm'rs of Park County, 2010 WY 41, ¶ 51, 228 P.3d 838, 855 (Wyo.2010); see, e.g., In re Bd. of County Comm'rs, Sublette County, 2001 WY 91, ¶¶ 12–18, 33 P.3d 107, 112–114 (Wyo.2001) (statute did not require State Board of Equalization to provide contested case hearing in examination of alleged improper tax assessment); In re Application for Certificate of Need by HCA Health Serv., 689 P.2d 108, 110–114 (Wyo.1984) (federal/state statutory scheme contemplated contested case hearing in review of agency authorization of new hospital); Carlson v. Bratton, 681 P.2d 1333, 1338 (Wyo.1984) (neither statute nor city ordinance required contested case hearing where mayor fired chief of police); Scarlett v. Town Council of Jackson, 463 P.2d 26, 29 (Wyo.1969) (municipality's annexation decision did not require contested case hearing).

[¶ 7] In determining what “other law” would require that a hearing be a contested case hearing, we have frequently held that the determination of “adjudicative facts” requires a contested case hearing, but the determination of “legislative” facts does not. See, e.g., Sheridan Planning Ass'n v. Bd. of Sheridan County Comm'rs, 924 P.2d 988, 990 (Wyo.1996) (approval of a planned unit development is “tantamount to amending zoning regulations and is, therefore, a legislative act”); Tri–State Generation & Transmission Ass'n v. Wyo. Pub. Serv. Comm'n, 735 P.2d 718, 721 (Wyo.1987) (hearing on application of one utility company to purchase assets of another raised issues of adjudicative facts requiring contested case hearing); Bd. of County Comm'rs of Teton County v. Teton County Youth Servs., 652 P.2d 400, 416 (Wyo.1982) (decision to zone or rezone an area is legislative decision not requiring contested case hearing, while decision to deny zoning certificate under Wyo. Stat. Ann. § 18–5–203 is adjudicative in nature, thus requiring contested case hearing). We have also noted that the distinction between adjudicative facts and legislative facts is not always entirely clear. Foster's Inc. v. City of Laramie, 718 P.2d 868, 873–74 (Wyo.1986); Scarlett, 463 P.2d at 28. Generally speaking, legislative action “produces a general rule or policy,” while adjudicatory action applies to “identifiable persons and specific situations.” Foster's, 718 P.2d at 873 (quoting Holding's Little Am. v. Bd. of County Comm'rs of Laramie County, 670 P.2d 699, 702 (Wyo.1983)). And finally, in recognizing the difficulty in distinguishing between legislative and adjudicative facts, we said the following:

In cases where the adjudicative-legislative distinction is unclear, it is better to begin the analysis by determining whether there is statutory or constitutional law which demands a trial-type hearing. If such a hearing is not required by law, then it may be unnecessary for us to make the adjudicative-legislative determination. This is just such a case. There is a difficult issue of whether the facts before the agency were adjudicative or legislative.

Foster's, 718 P.2d at 873–74.¹

[¶ 8] The appellee cites two cases— Frankel v. Board of County Commissioners of Teton County, 2002 WY 13, 39 P.3d 420 (Wyo.2002) and Board of County Commissioners, Albany County v. Federer Development Co., 682 P.2d 1062 (Wyo.1984)—for the proposition that this Court “has repeatedly applied these contested case requirements to decisions of county commissioners in deciding subdivision and development permit issues.” In neither case, however, was the question of whether a subdivision permit application requires a contested case hearing raised directly. In Frankel, which involved not a subdivision permit application, but the county commissioners' denial of a grading and erosion control permit, the parties had agreed that the “matter constituted a contested case.” Frankel, 2002 WY 13, ¶ 11, 39 P.3d at 424. In Federer, which did involve a subdivision permit application, the agency hearing appears to have been conducted as a contested case hearing, and judicial review took place pursuant to the Wyoming Administrative Procedure Act, but the sole question presented on appeal was whether substantial evidence supported the result, not whether a contested case hearing was required. Federer, 682 P.2d at 1064.

[¶ 9] The confusion engendered by the attempt to draw a line distinguishing legislative action from adjudicatory action is exemplified by two of our own cases. In Holding's Little America v. Board of County Commissioners of Laramie County, 670 P.2d 699, 702 (Wyo.1983), we quoted 1 Am.Jur.2d Administrative Law § 93 for the following proposition:

“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).

(Emphasis added.)

[¶ 10] The question before us in Holding's Little America was whether the agency action was legislative in nature and therefore not subject to judicial review, or was adjudicatory in nature and therefore subject to judicial review. We found the specific action at issue—the authorization of industrial development revenue bonds—to be adjudicatory action subject to judicial review, but we concluded further that “[t]he right of judicial review of an administrative decision is statutory.” Id. at 702. This, of course, suggests that reviewability does not depend so much on our legislative versus adjudicatory decision as it does upon legislative intent. Beyond that, despite the conclusion that the agency action was adjudicatory, we stated that the applicable statute did not require a trial-type contested case hearing. Id. at 703. In...