Summary 2011 WY 16

Summary of Decision February 4, 2011

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Case Name: Sheridan County Commission v. V.O. Gold Properties, LLC

Docket Number: S-10-0071

Citation: 2011 WY 16

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461725

Appeal from the District Court of Sheridan County, Honorable John G. Fenn, Judge

Representing Appellant (Respondent): Matthew F. Redle and Lynn M. Smith of the Sheridan County Attorney’s Office, Sheridan, Wyoming.

Representing Appellee (Petitioner): Eric K. Nelson of Brown, Drew & Massey, Casper, Wyoming.

Date of Decision: February 4, 2011

Facts: Appellant appeals from a district court order reversing its denial of a subdivision permit application submitted by Appellee 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

Issues: Whether a subdivision applicant under Wyo. Stat. 18-5-301 et seq. (2009) entitled to a contested case hearing.

Holdings: 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. In determining what “other law” would require that a hearing be a contested case hearing, the determination of “adjudicative facts” requires a contested case hearing, but the determination of “legislative” facts does not. The statutes at issue in the instant case are those found at Wyo. Stat. 18-5-301 et seq. (2009), which pertain to real estate subdivisions. Nothing in these statutes requires a board of county commissioners or a county planning commission to provide a contested case hearing to an applicant for a subdivision permit. Wyo. Stat. 18-5-305 does require each board of county commissioners to adopt rules and regulations necessary to implement the subdivision act, and Sheridan County has adopted such rules and regulations. The only pertinent hearing requirement in those rules and regulations is the requirement that the Commission receive public comment for the preliminary and final plats. Had the legislature intended that a contested case hearing was required for subdivision permit applications, it would have said so. Because neither the statutes nor the administrative rules provide for a contested case hearing, such is required when the Commission and the Board approve or deny a subdivision permit only if the applicant has a property right in that subdivision plan that is protected by constitutional due process. However, it has been decided that one has a vested property right and due process hearing requirements would apply only in existing land uses, and not in prospective land uses.

The appellee, under existing statutes and county regulations, is not entitled to a contested case hearing, and the prospect of developing a subdivision is not a vested property right protected by the constitutional right to due process. Therefore, no law requires a trial-type hearing. Furthermore, the decision whether to grant or deny a subdivision permit application is more nearly akin to legislative action than it is to adjudicative action. The existence of a subdivision implicates many policy and public welfare considerations, including the availability of water, soil conditions, population densities, neighborhood impact, access and road improvements, and the sufficiency of local schools. Consequently, the district court’s remand to the board of county commissioners for a hearing is affirmed, with that hearing required to meet the Land Division Rules’ requirement that the planning commission receive public comment on the preliminary plat and the final plat. As conceded by the Board, a complete record of its decision, with findings of fact and conclusions of law, must be provided because the agency action is subject to judicial review.

Affirmed in part, reversed in part, and remanded to the district court for further remand to the Board for action consistent herewith.




J. Voigt delivered the opinion for the court.

J. Hill concurred in part and dissented in part. He concurred in the majority’s decision to reverse so that the Board of County Commissioners can create a record. He dissented feeling that a contested case hearing may be required, although a more informal resolution of this matter is still a possibility. The current condition of the record is such that the only thing known is only that the Board voted to deny the subdivision permit. Upon careful consideration of all the facts and circumstances, the Board may yet grant the permit. However, prior to any hearing, Appellee is entitled to a formal notice of the deficiencies in his application, an opportunity to correct them, and if the Board still votes to deny the permit, then it must inform him upon what the basis of its decision rests, as well as all the facts and circumstances that justify its decision. Such a process would then allow both the district court and the Supreme Court an opportunity to meaningfully review that decision.