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Northfork Citizens for Responsible Development v. Board of County Commissioners of Park County

April 8, 2010

NORTHFORK CITIZENS FOR RESPONSIBLE DEVELOPMENT, DAVID JAMISON, AN INDIVIDUAL, AND ROBERT HOSZWA, AN INDIVIDUAL, APPELLANTS (PETITIONERS),
v.
BOARD OF COUNTY COMMISSIONERS OF PARK COUNTY, APPELLEE RESPONDENT, AND WORTHINGTON GROUP OF WYOMING, LLC, APPELLEE (RESPONDENT-INTERVENOR).
WORTHINGTON GROUP OF WYOMING, LLC, APPELLANT (RESPONDENT-INTERVENOR),
v.
BOARD OF COUNTY COMMISSIONERS OF PARK COUNTY, APPELLEE (RESPONDENT), AND NORTHFORK CITIZENS FOR RESPONSIBLE DEVELOPMENT, DAVID JAMISON, AN INDIVIDUAL, AND ROBERT HOSZWA, AN INDIVIDUAL, APPELLEES (PETITIONERS).



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

The opinion of the court was delivered by: Voigt, Chief Justice.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

[¶1] Northfork Citizens for Responsible Development, David Jamison, and Robert Hoszwa (collectively Northfork) have appealed the district court's affirmance of the approval by the Board of County Commissioners of Park County (the Board) of a subdivision proposed by Worthington Group of Wyoming, LLC (Worthington).*fn1

Northfork raises evidentiary and procedural issues. In a cross-appeal, Worthington contends that Northfork's issues are moot because Worthington has built the subdivision. We find that the appeal is not moot. We affirm in part and reverse in part, and remand to the district court for further remand to the Board for proceedings consistent with this opinion.

ISSUES

[¶2] 1. Are Northfork's issues moot because, Northfork having sought neither a stay nor an injunction, Worthington built the subdivision while the appeal was pending?

2. Did the Board violate county regulations and state law by allowing county officials to waive mandated collection of information at an early stage of development on the ground that such information would be collected at a later stage?

3. Did the Board violate county regulations by approving a final plat that was not consistent with the sketch plan?

4. Is the Board's finding that the subdivision has a dependable water source supported by substantial evidence?

5. Did the Board's approval of the subdivision's open space plan violate county regulations?

6. Was Northfork unlawfully denied intervention in the contested case hearing?

7. Did the Board violate county regulations by allowing dedication of subdivision roads for only limited public use?

8. Did the Board violate county regulations and state law by allowing gated access to the subdivision?

9. Did the Board violate county regulations by allowing multi-family dwellings on a portion of the subdivision?

FACTS

[¶3] In Park County, the developer of a proposed subdivision must obtain sketch plan approval, final plat approval, and a special use permit. At issue in the instant case is the Board's application of that process and its eventual approval of the Copperleaf Subdivision (the subdivision), which is located on approximately 553 acres of land along the North Fork of the Shoshone River, west of Cody. In Northfork Citizens for Responsible Development v. Park County Board of County Commissioners, 2008 WY 88, ¶ 16, 189 P.3d 260, 264-65 (Wyo. 2008) (Northfork I), this Court determined that the Northfork group, who are neighboring or area landowners, had standing to petition for judicial review of the Board's approval of the subdivision. Upon remand, the district court affirmed the Board. These inter-related appeals followed.

[¶4] In October 2004, Worthington submitted to the Park County Planning & Zoning Commission (the Commission) and the Board a sketch plan and special use permit application for development of the subdivision. Northfork filed numerous written objections and appeared at all Commission hearings regarding the project. The Commission held a public hearing on November 30, 2004, at which hearing Worthington agreed to change its proposed water source from individual wells to a centralized system. On December 8, 2004, the Board denied Northfork's attempted appeal of various ―determinations and/or interpretations‖ made by the planning coordinator in his review of the sketch plan and special use permit application. In addition to finding, in effect, that the appeal was premature, the Board specifically stated the following:

....

WHEREAS, evidence of adequate capacity for water and sewer is necessary between the sketch plan and final plat stage in the review process for approval or denial of a subdivision, but is not necessary at the sketch plan/special use permit stage during concurrent review; and

WHEREAS, the [Commission] and the [Board] will have the ability to review the adequacy of water and sewer capacity as is required by both the [zoning regulations] and [development standards and regulations], as well as the other items listed in the written letter of appeal during the normal process of the subdivision/special use permit review; and

WHEREAS, at the sketch plan/special use permit stage, under circumstances where the applicant has sought concurrent review of the sketch plan and special use permit application, the Planning Coordinator may waive items of information listed as required;

....

[¶5] The Commission held a second public hearing on December 21, 2004, to continue discussing both the sketch plan and the special use permit application. On the same date, the Commission approved the sketch plan and recommended approval of the special use permit, conditioned to ensure that ―[a]dequate services and infrastructure are available to serve the use, or the applicant has agreed to provide services and infrastructure in sufficient time to serve the proposed use[.]‖

[¶6] On December 28, 2004, Northfork appealed the Commission's resolution, raising many of the issues presently before the Court in this appeal, including procedural defects, insufficient information in the application, gated access, road dedication, open space requirements, multi-family dwellings, and water and sewer systems. The Board denied the appeal as it applied to the special use permit, finding that no such appeal right existed, but agreed to hear the appeal as it applied to sketch plan issues. The Board conducted a public hearing on January 25, 2005, and on February 8, 2005 issued a resolution in which it found against Northfork on some issues, found that some issues were not ripe for appeal because they were not sketch-plan issues-this category including water and sewer services-and remanded some issues to the Commission for further consideration-this category including open space requirements. Of special significance to the present appeal is the Board's interpretation of its subdivision regulations as not requiring certain sketch plan information in the context of a major subdivision development, because such information is to be provided at the final plat stage.

[¶7] The Commission held a public meeting on March 15, 2005, to consider the matters remanded to it by the Board. As concerns this appeal, the Commission thereafter issued Resolution No. 2005-13, in which a ―Revised Sketch Plan‖ with re-drawn open space boundaries was approved. The new open space plan consisted of connecting previously separate open space parcels with ―corridors‖ dedicated as open space. Northfork's appeal of this resolution was denied by the Board on April 19, 2005, on the ground that the resolution involved only ministerial acts that remained subject to Board review.

[¶8] On March 31, 2005, the Board held a public hearing on Worthington's special use permit application. For the next couple of months Worthington and Northfork dueled over the water supply issue, eventually drawing both the State Engineer's Office and the Department of Environmental Quality (DEQ) into the fray. The details of that conflict will be discussed in more detail in the section of this opinion dealing with substantial evidence as to the water source. Suffice it to say for present purposes that, when the Board approved the special use permit via its Resolution No. 2005-40 on June 21, 2005, it did so based upon Worthington's agreement to provide ―service and infrastructure in time to serve the proposed use.‖

[¶9] Not surprisingly, the water supply issue survived approval of the special use permit, with Worthington identifying and then abandoning various water sources. On October 28, 2005, DEQ issued a ―no adverse recommendations‖ letter based upon a proposed public water supply system using water taken from the North Fork of the Shoshone River, with a permit for 200 gallons per minute. Two months later, on December 28, 2005, Worthington filed the final plat for the subdivision.

[¶10] The Board discussed and voted to approve the final plat at a regularly scheduled meeting on March 7, 2006. Resolution No. 2006-16, carrying that vote into effect, was issued on March 14, 2006. The Resolution contained the following lengthy finding in regard to the subdivision's water supply:

The Board finds that DEQ, in consultation with the Wyoming State Engineer has reviewed the Developer's plan for a central water distribution system drawing water from the Northfork of the Shoshone River under a water permit issued by the Wyoming State Engineer in May 2005 for year-round direct flow in the amount of 200 gallons per minute, and that the subdivision at full build-out (131 lots) will not require said amount of water according to calculations in the file and otherwise of record undisputed by any other calculations of record, and that the Developer has provided information in the file that, after checking with the State Engineer, there has been no recorded regulation or ―call‖ on water rights on the Northfork of the Shoshone River, however, opponents to this subdivision have submitted pleadings from a separate proceeding indicating that in 1977 there was a ―call‖ on the Northfork of the Shoshone River during a dry year, however, the Board herein takes notice that in 1993 the Bureau of Reclamation completed a project on the Buffalo Bill Dam and Reservoir which has allowed for significantly more water storage in Buffalo Bill Reservoir than existed in 1977 and that such additional storage creates significantly different and more favorable circumstances relating to satisfaction of water rights than existed in 1977, including the availability of water in a State of Wyoming storage account available for purchase and/or exchange; and that DEQ, after reviewing the Developer's water system plan as required by law and pursuant to their own rules and regulations has provided the Board with a letter with no adverse recommendations regarding the water supply system and that said review requires a demonstration of quantity, quality and dependability of the water supply system and that said review satisfactorily accomplishes the purposes of the Park County subdivision regulations, and that even so the Board has reviewed the information presented itself, and finds that, the water system as reviewed herein is dependent solely on the May 2005 water permit and that the Board is not in its review considering the availability of domestic water from any wells located on the subject property or from irrigation rights or other source, though the Board recognizes that the Developer does have potential access to additional water for domestic purposes should the Developer seek to follow whatever necessary local, state and/or federal procedures exist in supplementing its 2005 direct flow water permit; and that the system provides that all water mains are within the boundaries of the subdivision and that individual service lines are available to each lot line[.]

[¶11] On March 30, 2006, Worthington requested a contested case hearing (the hearing) to challenge five conditions the Board had placed upon the subdivision: (1) dedication of subdivision roads to public use; (2) no multi-family dwellings; (3) no gated entrance; (4) no planting of fruit- or berry-producing trees; and (5) no stocking of fish in ponds.*fn2

Alleging to be ―aggrieved or adversely affected in fact‖ by the Board's decisions, Northfork reacted by moving the Board to be allowed to intervene in the hearing procedures, including discovery, as a matter of right. The Board responded by requiring Northfork first to ―demonstrate with specificity‖ the following:

i. Their individual or collective ability to meaningfully contribute to the record in this matter in a manner which will [not] cause undue delay or prejudice to one or both current parties;

ii. The nature and extent of harm they may collectively or individually suffer as it relates to each specific issue raised in the Worthington Group's contested case petition;

iii. How the proposed interveners are collectively or individually so situated that the disposition of this contested case may, as a practical matter impair or impede the proposed interveners' collective or individual ability to protect their respective interests;

iv. How the proposed interveners either collectively or individually allege their interests are not or will not adequately be represented by Park County and the Park County attorney; and

v. That they have a significant interest in the present contested case proceeding, and not one that is merely contingent or similar to the interest of any member of the public at large.

vi. The names or identities of the individual members of North Fork Citizens for Responsible Development; the ownership interest in any real properties or other assets that such members deem may be affected by the Copperleaf Subdivision Development; and a specific description of the existence of North Fork Citizens for Responsible Development as a legal entity, including its formation date.

[¶12] While maintaining its objection to these special requirements, Northfork submitted responses, in which it emphasized the special harm to neighboring landowners and downstream water users that could result from approval of the subdivision. In a lengthy and detailed order, the Board denied Northfork's motion to intervene, concluding that Northfork had failed to provide sufficient information showing that individual Northfork members would be harmed by the subdivision to any greater extent than would be the general public.

[¶13] The contested case hearing was held on July 12, 2006, and the Board issued its findings of fact and conclusions of law on October 3, 2006. In its order, the Board continued the prohibition against fruit- and berry-producing trees, and the prohibition against fish in the ponds, but reversed itself on the other issues: allowing limited dedication of roads to public use, allowing a gated entrance, and allowing multi-family dwellings on a portion of the platted area. Northfork filed a petition for review in the district court on November 1, 2006, challenging (1) Resolution No. 2005-40, which approved the special use permit; (2) Resolution No. 2005-53, which clarified the intention of Resolution No. 2005-40 in regard to the timing of water system and sewer system approvals; (3) Resolution No. 2006-16, which approved the subdivision permit and final plat; and (4) the Board's findings of fact and conclusions of law resulting from the hearing. Worthington was allowed to intervene in the court action to protect its interests.

[¶14] On May 18, 2007, Worthington moved to dismiss the petition for review on the ground that Northfork was not aggrieved or adversely affected in fact by the Board's action. The district court issued a decision letter on July 23, 2007, and an order of dismissal on August 23, 2007, in which it concluded that the Northfork appellants lacked standing to challenge the Board's actions because they had not shown that they possessed any interest in the matter different from that of members of the general public. As noted previously herein, Northfork appealed that ruling, and we reversed in Northfork I. Upon remand, the district court eventually made the following determinations:

(1) Worthington's completion of the project did not render the matter moot because the Wyoming Rules of Civil Procedure did not require Northfork to obtain an injunction; (2) the Board's ratification in Resolution No. 2005-40 of the planning coordinator's waiver of water supply information at the special use permit stage did not violate county regulations; (3) the Board's decisions during the special use permit review process regarding water supply were supported by substantial evidence; (4) the Board's findings in regard to the open space requirements of a ―grouped lot subdivision with density bonus‖ were supported by substantial evidence; (5) Resolution No. 2006-16 is not clearly contrary to the overwhelming weight of the evidence in regard to water supply; (6) the Board's adoption of Resolution No. 2006-16 as it relates to water supply was not arbitrary or capricious, and was in accordance with the law; (7) Resolution No. 2006-16 did not violate the county's open space regulations; (8) the Board did not err in denying Northfork's motion to intervene in the contested case hearing process because the Board, as a party, sufficiently represented Northfork's interests; (9) while there is a county regulation that subdivision roads be ―offered‖ for public dedication, there is no county regulation that requires the Board to accept all offered roads as fully dedicated to public use; (10) inasmuch as subdivision roads need not be accepted for public use and maintenance, it follows that allowing a gated entrance to a subdivision that does not have roads fully dedicated to public use is not a violation of state law in the form of a county sub-delegating the regulation of traffic; and (11) the Board did not err in determining that an earlier variance allowing multi-family dwellings on a portion of the platted area had not expired.

[¶15] The combined cases now before this Court consist of Worthington's appeal of the district court's rejection of its mootness argument, and Northfork's appeal from the rest of the district court's order and the underlying Board decisions.

STANDARD OF REVIEW

[¶16] A district court's decision on the question of mootness is an issue of law that we review de novo. Cooper v. Town of Pinedale, 1 P.3d 1197, 1201 (Wyo. 2000). The other issues brought to the Court in this appeal require application of our standard for reviewing the actions of an administrative agency. That standard requires that we give no special deference to the decision of the district court, but consider the case as if it came directly from the agency. Dale v. S & S Builders, LLC, 2008 WY 84, ¶ 9, 188 P.3d 554, 557 (Wyo. 2008). The statutory limits of our review are set forth in Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2009):

(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 ...


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