Tayback v. Teton Cnty. Bd. of Cnty. Commissioners

• Decision Date: 28 September 2017
• Docket Number: S-17-0014.
• Citation: 402 P.3d 984
• Parties: Christopher TAYBACK and Clare Phillips Tayback, Appellants (Petitioners), v. TETON COUNTY BOARD OF COUNTY COMMISSIONERS, Appellee (Respondent) and Four Shadows LLC, a Wyoming limited liability company, Appellee (Intervenor).
• Court: Wyoming Supreme Court

402 P.3d 984

Christopher TAYBACK and Clare Phillips Tayback, Appellants (Petitioners),

v.TETON COUNTY BOARD OF COUNTY COMMISSIONERS, Appellee (Respondent)andFour Shadows LLC, a Wyoming limited liability company, Appellee (Intervenor).

S-17-0014.

Supreme Court of Wyoming.

September 28, 2017

Representing Appellants: Mark D. Sullivan of Mark D. Sullivan, P.C., Wilson, Wyoming.

Representing Appellee Teton County Board of County Commissioners: Erin E. Weisman, Teton County Attorney's Office, Jackson, Wyoming.

Representing Appellee/Intervenor Four Shadows, LLC: Matthew E. Turner of Geittmann Larson Swift LLP, Jackson, Wyoming.

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

KAUTZ, Justice.

[¶1] Christopher and Clare Phillips Tayback challenge the Teton County Board of County Commissioners' (Board) decision granting Four Shadows, LLC a Basic Use Permit (BUP) to use its property in Teton Village for temporary construction storage/staging. The Taybacks claim the Board erred by granting the permit because Four Shadows' use was not temporary and the Board did not consider alternative sites.

[¶2] We affirm.

ISSUES

[¶3] The Taybacks present the following issues on appeal:

1. Was the Board of County Commissioners' Order contrary to law and arbitrary and capricious where it permits a 16-year "temporary" use to continue, and where the Appellees each concede that the use is intended to continue until Teton Village is built out, an indeterminate period of time, estimated to last 10 to 25 more years?

2. Where the Board did not conduct or require any examination of alternative sites for the proposed use, and made no findings concerning alternatives available to Four Shadows, LLC, was its Order unsupported by substantial evidence, arbitrary and capricious?

The Board adds another issue:

1. Do the [Taybacks] have standing to appeal the Board's Findings of Fact, Conclusions of Law and Order Granting Approval of Basic Use Permit BUP 2015-0065?

Four Shadows does not present a statement of the issues on appeal.

FACTS

[¶4] Teton Village is located in the unincorporated area of Teton County, Wyoming. Four Shadows owns a 2.72 acre property in the village, which is referred to as the Granite Ridge site. Since 2001, Four Shadows has leased the site to contractors working on projects in Teton Village. The contractors use it for various construction storage and staging needs, including as a location for their construction trailers, equipment and material storage, and staging of construction activities. In 2010, the Taybacks purchased a residence that looks down upon the Granite Ridge site.

[¶5] Four Shadows had a permit for the Granite Ridge site that expired on October 1, 2015. Consequently, in September 2015, Four Shadows filed an application with Teton County for a four-year BUP for temporary use of the property as a construction storage/staging site. At the time Four Shadows applied for the permit, the site was leased to two contractors who were working on separate projects in Teton Village. Four Shadows' application stated that the need for construction storage/staging areas would continue until the planned construction of Teton Village was complete, which it estimated would take another twenty years.

[¶6] Although the Teton County Planning Director could have made the decision on Four Shadows' application, he decided to send the matter to the Board because there was some controversy over the Granite Ridge site. The Planning Department notified neighboring property owners, including the Taybacks, of Four Shadows' application. The notice invited them to submit written comments to the Board and/or attend an upcoming public hearing.

[¶7] The Board held the public hearing in November 2015. The Planning Department staff submitted a report and gave a presentation at the hearing. They listed the "Key Issues" for the Board's consideration as: 1) "What are the best locations for construction staging areas in Teton Village that would have the least amount of impact" on residential development? 2) "Should these construction staging areas continue to be permitted as temporary uses when they are anticipated to be ongoing for twenty years?" 3) "Are there ways to mitigate the impacts to neighboring property owners when construction staging areas are located near residential areas?"

[¶8] The staff confirmed that Four Shadows' application complied with the county's land use regulations and recommended approval of the BUP, subject to seven conditions. One of the staff's recommendations was that the permit be tied to a particular project. Specifically, the staff recommended that the permit terminate when one of the projects that was then being staged at the site, the Caldera House, was complete.

[¶9] Four Shadows requested a four-year BUP which was not tied to any particular project. Four Shadows' representative explained that, because its site was used by different contractors for various projects, the overall impact of construction in Teton Village was reduced. Members of the public, including Ms. Tayback, were allowed to comment. The comments (written and verbal) expressed support for and opposition to the permit.

[¶10] At the conclusion of the public hearing, the Board voted unanimously to approve the permit with several conditions, including that the permit would expire in two years.¹ Prior to entering its written findings of fact, conclusions of law and order, the Board voted to reconsider. It held a second public hearing on January 5, 2016, with the discussion being focused mostly upon the proposed conditions to the permit. Shortly thereafter, the Board issued its Findings of Fact, Conclusions of Law and Order approving Four Shadows' application for a BUP allowing temporary use of the Granite Ridge site for construction storage/staging of "any development project within Teton Village." The permit was limited to two years from the date of approval and required any request for renewal to be heard by the Board. The permit also included other conditions, including: 1) limiting outdoor use of the site to Monday through Saturday from 7 a.m. to 6:30 p.m.; and 2) only allowing certain activities on the site.

[¶11] The Taybacks filed a petition for review with the district court, claiming the Board's decision granting Four Shadows' permit was erroneous. The district court allowed Four Shadows to intervene in the proceeding. The Board claimed the Taybacks did not have standing to contest the permit. The district court ruled that the Taybacks had standing, but affirmed the Board's decision. The Taybacks filed a timely notice of appeal to this Court.

STANDARD OF REVIEW

[¶12] The Board is an agency under the Wyoming Administrative Procedure Act. Wyo. Stat. Ann. § 16-3-101(b)(i) (LexisNexis 2017). We review an agency's decision as if it came directly to us, without giving any deference to the district court's decision. Hardy v. State ex rel. Dep't of Workforce Servs. , Workers' Comp. Div., 2017 WY 42, ¶ 10, 394 P.3d 454, 457 (Wyo. 2017). Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2017) governs judicial review of agency actions:

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.

[¶13] The Board held public hearings on Four Shadows' application. The proceedings were informal without the typical indicia of a true adversarial process. Unlike at a contested case hearing, witnesses were not sworn or subject to cross-examination and comments were taken from members of the audience. Given the informality of the proceedings, we review the Board's decision using § 16-3-114(c)(ii)(A), which directs the court to set aside an agency decision that is "[a]rbitrary, capricious, an abuse of discretion or otherwise not in accordance with law." Id. See also Wilson Advisory Committee v. Board of County Comm'rs, 2012 WY 163, ¶ 20, 292 P.3d 855, 861 (Wyo. 2012).

The arbitrary and capricious test requires the reviewing court to review the entire record to determine whether the agency reasonably could have made its finding and order based upon all the evidence before it. The arbitrary and capricious standard is more lenient and deferential to the agency than the substantial evidence standard because it requires only that there be a rational basis for the agency's decision.

Gilbert [v. Bd. of County Comm'rs of Park County, 2010 WY 68], ¶ 10, 232 P.3d 17[,]24 [ (Wyo. 2010) ] (quoting Dale [v. S&S Builders, 2008 WY 84], ¶ 12, 188 P.3d [554,] 559 [ (Wyo. 2008) ] ).

Wilson Advisory Committee, ¶ 21, 292 P.3d at 861.

[¶14] As always, we review an agency's conclusions of law de novo and affirm only when they are in accordance with the law. Id., ¶ 22, 292 P.3d at 862. See also Wyodak Res. Dev. Corp. v. Wyo. Dep't of Rev., 2017 WY 6, ¶ 15, 387 P.3d 725, 730 (Wyo. 2017) ; Dale, ¶ 26, 188 P.3d at 561-62.

DISCUSSION

1. Standing

[¶15] The Board claims the Taybacks do not have standing to contest its order granting Four Shadows' permit. We will begin with this issue because standing is jurisdictional. Sinclair Oil Corp. v. Wyo. Public Service...