Summary 2010 WY 41

Summary of Decision issued April 8, 2010

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Northfork Citizens for Responsible Development v. Bd. of County Comm. of Park Cty.

Citation: 2010 WY 41

Docket Number: S-09-0148; S-09-0149

Appeal from the District Court of Park County, the Honorable Steven R. Cranfill, Judge.

Representing Northfork: Debra J. Wendtland and Anthony T. Wendtland of Wendtland & Wendtland, LLP, Sheridan, Wyoming.

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

Representing Worthington Group: Laurence W. Stinson and Dawn R. Scott of Bonner Stinson, PC, Cody, Wyoming.

Facts/Discussion: Northfork appealed the district court’s affirmance of the approval by the Board of a subdivision proposed by Worthington Group. Northfork raised evidentiary and procedural issues. Worthington contended that Northfork’s issues were moot because Worthington has built the subdivision.

Are Northfork’s issues moot: Worthington argued that when Northfork filed its petition for review in the district court in 2006, it sought neither a stay nor an injunction. Consequently, nothing prevented Worthington from completing the subdivision which it did. As the Court stated in Ebzery, “just as a plaintiff who collects a judgment which is appealed but is not superseded takes a risk of having to make restitution, so, too, does one who builds in accordance with a zoning variance which is appealed take the risk that it will have to tear down what it has built.” The Court continues to hold that in Wyoming, completion of a project under a variance or permit during the pendency of an appeal does not render the appellate issues moot.
Did the Board violate county regulations and state law: The Board concluded that its rules and regulations allow it to schedule over time the receipt from a developer of information required in the sketch plan-special use permit-final plat-subdivision plan approval process. That conclusion, based upon the interrelatedness of the separate processes, was not clearly erroneous, nor was it inconsistent with the plain meaning of the rules and regulations, when all are read together.
Did the Board violate county regulations: Northfork contended that the subdivision’s final plat was not consistent with its sketch plan. While the final plat is to be consistent with the sketch plan, it need not be identical to it or the entire process could end after the sketch plan was approved. A sketch plan was tendered with individual water wells. After staff input and public comment, a final plat was approved with a central water supply system. The Board did not err in determining that this was not such an “inconsistency” as to require denial of the final plat of the subdivision.
Dependable water source: Wyo. Stat. Ann. § 18-5-306 sets the minimum requirements that must be met before a subdivision permit may be granted. Worthington first proposed ground water wells on individual lots. Public comment and opposition led them to propose, instead, a centralized system based upon converted irrigation rights. After additional public comment and opposition, Worthington again revised its water supply proposal, this time to surface water from the river along with an exchange of water from the downstream Buffalo Bill Reservoir. The Board found that the single incident of a call on the river in 1977 was not such evidence of risk as to render the 2005 priority “undependable” as the subdivision’s water supply. The Board’s determination was not contrary to the great weight of the evidence.
Open space plan: Northfork contended that the Board violated the regulations by approving the subdivision’s final plat where the open space provided for therein was not a single contiguous parcel, was not entirely undeveloped, and did not fulfill Park County’s policy that open space promote wildlife habitat and migration. The final plat revealed that the open space in the subdivision consists of one very large tract north of the housing lots, three separate tracts of relatively significant size within the subdivision but largely surrounded by houses, a “beltway” surrounding the entire subdivision and several narrow corridors connecting the various tracts. Taken together, the tracts cover approximately 53% of the entire subdivision. The Board considered the requirement of the GR-5 zone, the requirements of Lot Grouping, the definition of “open space” and concluded that the open space configuration met the purposes of the Zoning Resolution.
Northfork unlawfully denied intervention: A proceeding is a contested case if it is a trial type hearing that is required by law. Although all involved treated the hearing that took place on July 12, 2006 as a contested case hearing, the Court was not made aware of any underlying statute or administrative regulation that required Worthington’s “appeal” of the five conditions placed upon the final plat and subdivision permit to be conducted as a trial type hearing. The hearing was assumed by all to be a contested case hearing, was held as one and has previously been judicially reviewed as if it were a contested case hearing. For the purposes of these related appeals, it was a contested case hearing. The Court was concerned with the three requirements of W.R.C.P. 24(a)(2): the applicant claims an interest; the applicant is so situated that the disposition may as a practical matter impair or impede the applicant’s ability to protect that interest; and the applicant’s interest is not adequately represented by an existing party. The Court did not agree that the Board adequately represented Northfork’s interests during the contested case proceedings. The record revealed the Board’s unyielding opposition to any participation by Northfork throughout the entire process. As recognized in Northfork I, Northfork has particularized and protectable interests in the development which interests do not appear to have been shared by the Board.
Remaining issues: The remaining issues – road dedication, gated access, and multi-family dwelling – are all issues that were heard and decided at the contested case hearing. Because the Court concluded that Northfork was wrongfully deprived of its right to intervene in that hearing, those remaining issues will be remanded as well.

Conclusion: The fact that Worthington constructed the subdivision during the pendency of the appeal did not render moot the issues raised by Northfork. The Board did not violate state law or its own regulations in allowing county officials to waive the collection of certain information regarding the subdivision at early stages of the development because the subdivision process provided that such information would be made available and evaluated prior to approval of the final plat and prior to granting of the subdivision permit. Changes in the water supply source during the development process did not render the final plat inconsistent with the sketch plan, inasmuch as the sketch plan process clearly contemplated such changes. The Board’s conclusion that the subdivision’s water supply was dependable was based upon substantial record evidence, with any potential conclusion to the contrary being mere speculation. The Board did not err as a matter of law in determining the open space configuration within the subdivision to be adequate under the Board’s Zoning Resolution. The Board did err in denying Northfork the right to participate in the contested case hearing.

Affirmed in part, reversed in part.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/ychundn .

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