Appeal from the District Court of Park County The Honorable Steven R. Cranfill, Judge.
The opinion of the court was delivered by: Golden, Justice.
Before VOIGT, C.J., and GOLDEN, HILL, KITE, BURKE, JJ.
[¶1] Bruce Gilbert, owner of a 21.85-acre parcel of property approximately one mile southeast of Meeteetse, Wyoming, seeks review of the decision of the Board of County Commissioners of Park County, which the district court affirmed, that denied his request for a land use variance after extended public hearings. We affirm the Board‟s decision.
[¶2] In Gilbert‟s principal brief, he presents these issues:
A. Is BOCC Resolution No. 2006-5 unsupported by substantial evidence and/or arbitrary and capricious?
B. Is BOCC Resolution No. 2007-72 unsupported by substantial evidence and/or arbitrary and capricious?
C. Did the District Court set forth erroneous findings in its July 30, 2008 Decision Letter?
D. Did the District Court err in finding that the public hearings were not a contested case proceeding?
The Board responds with this statement:
I. The Board‟s denial of Appellant‟s variance is supported by substantial evidence.
II. The Board properly redeliberated the issues as required by the district court and the Board‟s decision is not arbitrary and capricious.
III. Appellant failed to provide a transcript of the proceedings and therefore this Court can accept the findings of the district court as the basis for deciding the issues.
IV. The district court‟s finding was correct where the district court stated that Gilbert could have appealed the planning coordinator‟s decision that he needed a variance.
V. The district court did not err in finding that the proceedings before the Board were not held as contested case hearings.
Gilbert filed a reply brief asserting these matters:
A. Does the lack of a transcript require this Court to accept the findings of the District Court as the sole basis for deciding the issues?
B. Does an incomplete record at the administrative level continue to prejudice Appellant?
C. Was the Board‟s decision to deny Gilbert‟s variance arbitrary and capricious?
D. Did the District Court [err] in finding that Appellant could have appealed the planning coordinator‟s decision that he needed a variance?
E. Did the District Court [err] in finding that the public hearings were not a contested case proceeding?
[¶3] Before proceeding further, we must comment briefly on Gilbert‟s reply brief statement of the issues. We observe that Issue C, whether the Board‟s decision to deny the variance request was arbitrary and capricious, repeats that same issue raised in Gilbert‟s principal brief and addressed in the Board‟s brief. It is not, therefore, a new issue raised by the Board in its brief. Similarly, Issue E, whether the district court erred in finding that the public hearings were not contested case hearings, repeats that same issue raised in Gilbert‟s principal brief and addressed in the Board‟s brief. It is not, therefore, a new issue raised by the Board in its brief. We remind counsel that a reply brief is limited to new issues and arguments raised by an appellee‟s brief; failure to comply with this requirement may subject counsel to sanctions under this Court‟s rules. W.R.A.P. 7.03.
[¶4] In 1985, under the then-existing Park County zoning regulations, the 21.85-acre parcel in question in this appeal was owned by Mr. and Mrs. William Spuhl (Spuhl) and was zoned light industrial/manufacturing by virtue of Land Use Change (LUC)-59. In September 2000, the Board adopted a new and more comprehensive zoning resolution that superseded the Board‟s former method of establishing land use changes on a case-by-case basis. The 2000 zoning resolution established zoning districts county-wide and identified uses that may occur within each zoning district. That resolution also provided that the previous land use changes, such as LUC-59 allowing light industrial/manufacturing, would expire on September 1, 2005, if they had been abandoned, had become inactive, or had not been substantially advanced during the five-year period following September 2000.
[¶5] On May 10, 2005, four months before the expiration of LUC-59, Spuhl sold the 21.85-acre parcel in question to Gilbert. In July 2005, Park County‟s Planning and Zoning Coordinator Bo Bowman, having determined that the land use changes of approximately sixty property owners were set to expire on September 1, 2005, sent letters to those owners informing each owner of the approaching expiration date and of each owner‟s need to request a variance to extend the expiration date. Gilbert received Bowman‟s letter and responded with a handwritten letter which Bowman received on August 4, 2005. In Gilbert‟s letter he stated in pertinent part, "At the present time I do not know what is the best use of this parcel. I hope you will allow me to retain this zoning till I am able to determine its best use." Gilbert submitted a $300.00 check as payment for a variance application. At that time, Gilbert did not question Bowman‟s determination that the LUC-59 designation for Gilbert‟s 21.85-acre parcel qualified for expiration. The 2000 zoning resolution provides that persons can appeal any action of the Planning Coordinator to the Board. Park Cty. Zoning Resolution, Div. 4-300, Sections 4-305 and 4-310 (Sept. 1, 2000). Specifically, Section 4-310 of the zoning resolution provides:
Any aggrieved person or any officer, department, or board of the County affected by any decision of the Planning Coordinator may appeal to the Board of County Commissioners. Appeals shall be made within 10 days of notice of any action by filing with the Board‟s Administrative Assistant a written notice of appeal specifying the grounds for the appeal. The Planning Coordinator shall immediately transmit to the Board the complete record of the action from which the appeal is taken.
Gilbert did not appeal Bowman‟s decision that the LUC-59 designation for his 21.85-acre parcel was set to expire on September 1, 2005.
[¶6] On October 18, 2005, the Park County Planning and Zoning Commission held a public hearing after which it recommended to the Board that Gilbert‟s variance request be denied. The Board subsequently held public hearings on November 15, 2005, and January 3, 2006, concerning Gilbert‟s variance request. The Board held these hearings in accordance with the provisions of the 2000 zoning resolution addressing variance standards. Those standards are:
No variance from the strict application of any provision of this zoning resolution may be granted unless there are special circumstances or conditions which are peculiar to the land, building, or structure for which the variance is sought and do not apply generally to land or buildings in the neighborhood, and have not resulted from any act of the applicant subsequent to the adoption of this zoning resolution; the circumstances or conditions are such that the strict application of the provisions of the zoning resolution would deprive the applicant of the reasonable use of the land, building, or structure, the granting of the variance is necessary for the reasonable use thereof and the variance as granted is the minimum variance that will accomplish this purpose; and the granting of the variance is in harmony with the general purposes and intent of the zoning resolution and will not be injurious to properties in the vicinity or otherwise detrimental to the public welfare. The Board shall make written findings on each of these considerations.
Park Cty. Zoning Resolution, supra, Section 4-715. Gilbert did not request that the Board‟s hearings be conducted as contested case "trial-type" proceedings under the Wyoming Administrative Procedure Act. Wyo. Stat. Ann. § 16-3-101 through 115 (LexisNexis 2009). The Board‟s hearings were electronically recorded on audiocassette tapes, two tapes from the hearing on November 15, 2005, and one tape from the hearing on January 3, 2006. The latter tape contains only part of the hearing, as that tape was taped over by other Board proceedings unrelated to Gilbert. Board minutes pertaining to the hearing were made.
[¶7] At these hearings, the Board considered the recommendation of the Planning and Zoning Commission; Gilbert‟s comments concerning his justification for wanting the variance and concerning his position that a variance was unnecessary because Spuhl‟s business activities on the parcel established that the light industrial/manufacturing use had not been abandoned, had not become inactive, and had been substantially advanced; Spuhl‟s evidence offered on Gilbert‟s behalf; and written and oral comments from neighboring property owners. The evidence and comment concerning Spuhl‟s use of the parcel was in conflict. The evidence in favor of Gilbert and Spuhl on this matter was that he had operated a gun-ordering, gun-cleaning, and gun and ammunition reloading business on the parcel; he had used a generator to supply electricity to the property; in Spuhl‟s opinion, it was known in the community that he operated his business on the parcel; and he produced a copy of his federal firearms license allowing him to deal in firearm sales. However, Spuhl offered no business records to support his assertions and no one from the community testified in support of those assertions. Written comments and oral statements from several neighboring property owners were received by the Board in opposition to Spuhl‟s claim that he had used the parcel as necessary under LUC-59. A Mr. Long stated that no such business activity occurred; instead, Spuhl cared for his horses on the parcel and used the parcel as a private shooting range. A Ms. Placzkowski stated she had not seen any business activity on the parcel as she passed by the parcel several times a day for the past two years. A Mr. Walter stated that the parcel is in a well-established residential area, that in his six years living near the parcel he had seen no evidence of a business operation, and that the only people he had seen on the parcel were the Spuhls when they stopped by to feed their horses. The Planning and Zoning Coordinator stated that if the Board denied Gilbert‟s variance request, Gilbert could pursue numerous uses of the parcel, some by virtue of a simple zoning permit and some by virtue of a special use permit. In addition to the above-mentioned material, the Board received information from two of its members who had visited the parcel which indicated that the two small outbuildings on the parcel showed no indication they had been used for commercial purposes.
[¶8] On January 17, 2006, the Board adopted Resolution # 2006-5, denying the variance request, and stated findings and conclusions concerning the past use of the parcel and whether Gilbert‟s variance request met the zoning resolution criteria applicable to granting the variance. On February 7, 2006, Gilbert filed with the district court a petition for review, requesting that the court remand the issue whether a variance was necessary because the record was incomplete. On June 14, 2007, the court remanded the matter to the Board, explaining that the court could not make a fully reasoned decision with an incomplete record and ordering the Board to not reopen the evidentiary record but to provide a record of the Board‟s deliberation in denying the variance request. On remand, the Board again deliberated and adopted, on October 16, 2007, Resolution # 2007-72, which set forth findings and conclusions supporting the Board‟s decision to deny the variance request, and states as follows:
RESOLUTION # 2007-72 TITLE: REDELIBERATIONS ON ACTION DENYING VARIANCE TO BRUCE GILBERT REGARDING LAND USE CHANGE 59 ON A 21.85 ACRE PARCEL DESCRIBED AS A PORTION OF THE SE1/4 OF SECTION 10, T48N, R100W.
WHEREAS, in October 1986, the Board of County Commissioners (Board) granted Land Use Change (LUC)-59 to allow light industrial development on a parcel of land approximately 21.85 acres in size described as a portion of the SE1/4 of Section 10, T48N, R100W; and
WHEREAS, the current owner of that parcel, Bruce Gilbert, applied for a variance to extend the expiration date of said LUC beyond September 1, 2005 as set forth in the Park County Zoning Resolution at Section 3-210(F)(1) & (6); and
WHEREAS, the Board held public hearings on said request for variance on November 15, 2005 and January 3, 2006, and in addition to taking testimony at the public hearings, two of the three members of the Board made independent site visits to the parcel of land to view the circumstances on the ground; and
WHEREAS, on January 17, 2006 the Board made its decision denying the variance and entered a resolution to that effect. Mr. Gilbert thereafter appealed that decision to the Fifth Judicial District Court, Park County, Wyoming. After briefing, that Court sent the matter back to the Board not for the purpose of developing new evidence and testimony but for the purpose of redeliberating and better stating their reasons for their decision; and
WHEREAS, on October 9, 2007, the Board as it existed on January 17, 2006, met and redeliberated the matter, adopted its earlier findings and conclusions, and made the following amended findings and conclusions:
1. The Park County Planning Coordinator in July 2005 provided landowner Bruce Gilbert with notice that his undeveloped Land Use Change (LUC) Number 59 was scheduled to expire on September 1, 2005 pursuant to Park County zoning regulations unless Mr. Gilbert applied for a variance to extend the expiration date.
2. Thereafter, Mr. Gilbert on July 13, 2005 requested a variance asking that his LUC expiration date be extended.
3. From information learned from site visits by Board members, only two relatively small outbuildings exist on the property and that these buildings do not show any indiciation that they have been utilized for commercial purposes to any meaningful extent.
4. Testimony from members of the public indicated that no commercial activity has occurred at the above-described location:
Bobby Long testified that he knows the former property owner William Spuhl. William Spuhl testified that he operated a gun cleaning/reloading type business on the property, however, Bobby Long testified that William Spuhl lived in Bobby Long‟s RV park in Meeteetse, Wyoming for approximately one year and that during that time William Spuhl only fed his private animals on the subject property. Mr. Long also owns property near the subject property and has not at any time seen any type of business activity on the property. He testified that William Spuhl did do some firearms transactions out of the premises of a restaurant in Meeteetse but not on the property in question to his knowledge;
Don Walter, who owns property near the subject property, submitted comments which state that he lived near the subject property for six years and did not see any kind of business operated on the subject property and that all he saw was William Spuhl feed his animals on the property;
Pauline Placzowski testified that she has lived in the area of the subject property for approximately two years, drives by it every day, and has never seen any evidence of a business being operated on the property;
Diane Chapman testified that she lives in the area of the subject property and that she was unaware of any business activity that was substantially advanced on the property.
5. Testimony at public hearings indicated that the buildings on the property are not served by electricity except for electricity generated by a portable generator.
6. The former owner testified and submitted an affidavit indicating he had operated a firearm/reloading type business on the property, however, he provided no receipts indicating the operation of the business or other documents supporting any business activity having occurred on the property.
7. The above-described property lies within the GR-M zoning district which allows for all uses listed in the Park County Zoning Resolution including the use he testified he had used the property assuming the property owner, Mr. Gilbert in this case, applies for and receives the proper permit.
8. The applicant and/or his predecessors in interest have had more than 19 years since the LUC was granted to conduct the uses allowed by the LUC and that during that extensive length of time, based on the testimony and comments presented, no business has been substantially advanced on the subject property; and
THEREFORE, the Board concludes as follows:
1. In order to grant a variance the Board must make affirmative findings on all four of the following approval standards as set forth in the Park ...