Summary 2010 WY 68

Summary of Decision issued May 26, 2010

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

Case Name: Gilbert v. Bd. of Cty Comm. of Park Cty

Citation: 2010 WY 68

Docket Number: S-08-0202

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

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

Representing Park County: James F. Davis and Bryan A. Skoric of the Park County Attorney’s Office, Cody, Wyoming.

Facts/Discussion: Gilbert, owner of a 21.85-acre parcel of property approximately one mile southeast of Meeteetse sought review of the decision of the Board of County Commissioners (Board), which the district court affirmed, that denied his request for a land use variance after extended public hearings.

Hearings de facto trial-type proceeding: Gilbert stated he never claimed he was entitled to a contested case proceeding when the Board provided a public hearing to consider his variance request. However, he contended the Board’s actions during its several public hearings functioned as a constructive contested case proceeding. Gilbert argued that the increasingly adversarial relationship resulted in a de facto contested case proceeding. The Court has not addressed the issue of de facto contested case proceedings. Gilbert offered cases from Oregon and Hawaii. After the Court’s analysis of the cases, it declined to recognize the concept of the de facto contested case.
Sufficient administrative record for review: The Court reviewed the record and noted that when an appellant is concerned that no report was made or was incomplete, appellant may prepare a statement of the evidence or proceedings from the best available means including appellant’s own recollection. The Court observed that both counsel in their respective briefing set out their statements of the case and facts with appropriate references to the record and at times inserted their recollections of the discussions of some board members.
Effect of Gilbert’s failure to appeal need for variance request: Gilbert and the Board presented argument on whether Gilbert needed to request a variance in the first place. The significance of the parties’ argument on the issue was whether judicial review should concern only the Board’s decision that Gilbert failed to satisfy the variance standards or instead should also include whether a variance request was necessary at all. The Court stated both matters were before the Board.
Resolution #2007-72 supported by substantial evidence: It was obvious to the Court from a review of the record that the Board considered conflicting evidence concerning whether a variance was necessary and whether Gilbert had shown that the variance standards were met. The conflicting evidence served both sides.
Board’s decisions arbitrary and capricious: The Court reviewed the record. The Board was presented with conflicting evidence and argument with room for two opinions to be derived from that conflict. An honest difference of opinion will not support a finding of arbitrariness and capriciousness.

Conclusion: The Court declined to recognize the concept of the de facto contested case. The Court was satisfied there was a sufficient record. The Board’s decisions were supported by relevant evidence which a reasonable mind might accept in support of those decisions. The Court was satisfied the Board’s decision were not in disregard of the fact and circumstances of the case.

Affirmed.

J. Golden delivered the decision.

Link: http://tinyurl.com/35lppoy .

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