Tarver v. City of Sheridan Bd. of Adjustments

• Citation: 327 P.3d 76
• Decision Date: 05 June 2014
• Docket Number: No. S–13–0171.,S–13–0171.
• Parties: Timothy S. TARVER and Carole A. Tarver, Appellants (Petitioners), v. CITY OF SHERIDAN BOARD OF ADJUSTMENTS, Robert L. Bernard And Beverly D. Bernard, Appellees (Respondents).
• Court: Wyoming Supreme Court

327 P.3d 76

Timothy S. TARVER and Carole A. Tarver, Appellants (Petitioners),

v.CITY OF SHERIDAN BOARD OF ADJUSTMENTS, Robert L. Bernard And Beverly D. Bernard, Appellees (Respondents).

No. S–13–0171.

Supreme Court of Wyoming.

June 5, 2014.

Representing Appellants: Timothy S. Tarver, Sheridan, Wyoming.

Representing Appellee City of Sheridan Board of Adjustments: Kevin K. Kessner, Sheridan, Wyoming. No appearance.

Representing Appellees Robert L. Bernard and Beverly D. Bernard: Christopher M. Wages of Goddard, Wages & Vogel, Buffalo, Wyoming.

Before KITE, C.J., and HILL, BURKE, DAVIS, and FOX, JJ.

KITE, Chief Justice.

[¶ 1] Timothy S. and Carole A. Tarver appeal from the district court's order affirming the City of Sheridan Board of Adjustments' (Board) ¹ approval of Robert L. and Beverly D. Bernards' request for a special exemption to operate a bed and breakfast in an area zoned residential. The Tarvers claim the Bernards' application was barred by res judicata, the Board was without authority to impose parking restrictions on the bed and breakfast, and the bed and breakfast did not meet the requirements for a special exemption to the zoning ordinances.

[¶ 2] We conclude the Bernards were not barred from filing a second application for a special exemption, the Board acted within its authority when it conditioned the special exemption and its decision allowing the special exemption with parking conditions is supported by the record. We, therefore, affirm.

ISSUES

[¶ 3] The salient issues presented in this case are:

1. Was the Bernards' second application for a special exemption barred by res judicata or collateral estoppel?

2. Did the Board act in excess of its authority by requiring parking restrictions for the Bernards' bed and breakfast?

3. Was the Board's decision that the Bernards were entitled to a special exemption for their bed and breakfast supported by substantial evidence and in accordance with the law? ²

FACTS

[¶ 4] The procedural history of this case is complex. On March 24, 2011, the Bernards filed their first application for a special exemption to operate a bed and breakfast in an area of Sheridan, Wyoming which was zoned as an R–1 Residence District. As part of the application process, they were required to give notice to neighbors within 300 feet of the boundary of their property. The Tarvers live within the notification area and objected to the Bernards' application on several bases, including increased traffic and parking issues.

[¶ 5] The Board held a hearing on April 14, 2011,³ and approved the Bernards' application with several conditions, one being the Bernards had to submit an off-street parking plan that met the approval of city staff prior to operation of the bed and breakfast. The Tarvers filed a petition for review with the district court. While the appeal was pending, the Bernards worked with the city staff to secure approval of their parking plan. After engaging an attorney and an engineer, the Bernards finally obtained the city staff's approval of their parking plan on December 16, 2011.

[¶ 6] On January 13, 2012, the district court reversed the Board's approval of the Bernards' special exemption application, finding the Board had not followed the proper procedures in considering and granting the special exemption. The Bernards did not appeal the district court's decision.

[¶ 7] The Bernards filed a second application for a special exemption on January 25, 2012, and included the recently approved parking plan and a certificate of occupancy confirming the bed and breakfast complied with all code requirements. The Tarvers again objected, claiming the Bernards' second application was barred by res judicata and, even if it was not barred, the application should be denied because of the deleterious effect of a bed and breakfast on the neighborhood.

[¶ 8] The Board engaged a hearing officer to conduct a contested case hearing on the matter. The hearing officer apparently determined that the Bernards' application was not barred by res judicata,⁴ and after a contested case hearing, the Board granted the Bernards' application on the condition that they record restrictive covenants incorporating the approved parking plan. The Tarvers filed another petition for review with the district court. The district court affirmed the Board's decision, and the Tarvers filed a timely notice of appeal with this Court.

STANDARD OF REVIEW

[¶ 9] Our review of the Board's decision granting the Bernards a special exemption for operation of their bed and breakfast is governed by Wyo. Stat. Ann. § 16–3–114(c) (LexisNexis 2013):

(c) To the extent necessary to make a decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. In making the following determinations, the court shall review the whole record or those parts of it cited by a party and due account shall be taken of the rule of prejudicial error. The reviewing court shall:

(i) Compel agency action unlawfully withheld or unreasonably delayed; and

(ii) Hold unlawful and set aside agency action, findings and conclusions found to be:

(A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;

(B) Contrary to constitutional right, power, privilege or immunity;

(C) In excess of statutory jurisdiction, authority or limitations or lacking statutory right;

(D) Without observance of procedure required by law; or

(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute.

Specific aspects of the standard of review will be set out in the discussion of the issues, below.

DISCUSSION

A. Res Judicata/Collateral Estoppel

[¶ 10] The application of preclusion doctrines such as res judicata and/or collateral estoppel involves questions of law. Goodman v. Voss, 2011 WY 33, ¶ 23, 248 P.3d 1120, 1127 (Wyo.2011). We review an agency's conclusions of law de novo and affirm only if the agency's conclusions are in accordance with the law. Moss v. State ex rel. Wyo. Workers' Safety & Comp. Div., 2010 WY 66, ¶ 11, 232 P.3d 1, 4 (Wyo.2010); Dale v. S & S Builders, LLC, 2008 WY 84, ¶ 22, 188 P.3d 554, 561 (Wyo.2008).

[¶ 11] In general, preclusion concepts apply to land use and zoning decisions. 101A C.J.S. Zoning & Land Planning § 279 (2014). See also Hilltop Terrace Homeowner's Ass'n v. Island County, 126 Wash.2d 22, 891 P.2d 29, 35 (Wash.1995) (en banc); Joelson v. City of Casper, 676 P.2d 570 (Wyo.1984). Res judicata bars litigation of previously litigated claims or causes of action; collateral estoppel prohibits re-litigation of formerly litigated issues. Given the limited authority of governmental agencies, collateral estoppel is often more appropriate for application in the administrative context. Tenorio v. State ex rel. Wyo. Workers' Comp. Div., 931 P.2d 234, 238 (Wyo.1997).

[¶ 12] The factors considered in applying collateral estoppel include:

(1) whether the issue decided in the prior adjudication was identical with the issue presented in the present action; (2) whether the prior adjudication resulted in a judgment on the merits; (3) whether the party against whom collateral estoppel is asserted was a party or in privity with a party to the prior adjudication; and (4) whether the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the prior proceeding.

Kahrs v. Bd. of Trustees for Platte County School Dist. No. 1, 901 P.2d 404, 406 (Wyo.1995), quoting Slavens v. Bd. of County Comm'rs for Uinta County, 854 P.2d 683, 686 (Wyo.1993) (emphasis in original). The factors for application of res judicata are similar:

Four factors are examined to determine whether the doctrine of res judicata applies: (1) identity in parties; (2) identity in subject matter; (3) the issues are the same and relate to the subject matter; and (4) the capacities of the persons are identical in reference to both the subject matter and the issues between them.

Wyodak Resources Dev. Corp. v. Wyo. Dept. of Revenue, 2002 WY 181, ¶ 11, 60 P.3d 129, 135 (Wyo.2002), quoting Eklund v. PRI Environmental, Inc., 2001 WY 55, ¶ 15, 25 P.3d 511, 517 (Wyo.2001) (citation omitted). The two doctrines differ in that res judicata bars claims that could have been brought in the first action even if they were not. Stoneking v. Wheatland Rural Elec. Ass'n, 2003 WY 81, ¶ 11, 72 P.3d 272, 275–76 (Wyo.2003).

[¶ 13] Although the decision of a zoning authority will generally be considered final and identical subsequent applications are barred under principles of res judicata and/or collateral estoppel, “ res judicata will not prevent the approval of a second application where the second application presents substantial changes from the first application.” 101A C.J.S. Zoning & Land Planning § 279. See also Hilltop Terrace, 891 P.2d at 35; In re Woodstock Community Trust & Housing Vermont PRD, 192 Vt. 474, 60 A.3d 686, 692 (2012). Under those circumstances, the issues or subject matters presented in the two administrative actions are not identical.

[¶ 14] In the case at bar, the Board approved the first application, but its decision was reversed by the district court because the agency failed to comply with its own rules and procedures. The general issues in the two administrative actions were the same, i.e., applications seeking approval of a special exemption for operation of a bed and breakfast in a residential area. However, the second application differed from the first because it included an approved parking plan and a certificate of occupancy.

[¶ 15] In addition, the district court's reversal of the Board's decision on the Bernards' first application clearly was not a final judgment on the merits. The district court explained its initial decision as follows:

22. The City of Sheridan Code governing the Board provides...