Appeal from the District Court of Sheridan County The Honorable John G. Fenn, Judge
The opinion of the court was delivered by: Voigt, Justice.
Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.
VOIGT, J., delivers the opinion of the Court; HILL, J., files a concurring in part and dissenting in part opinion.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.
[¶1] The Board of County Commissioners of Sheridan County (the Board) appeals from a district court order reversing the Board's denial of a subdivision permit application submitted by V.O. Gold Properties, LLC (Gold) 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. We conclude that a contested case hearing is not required.
[¶2] Is a subdivision applicant under Wyo. Stat. Ann. § 18-5-301 et seq. (LexisNexis 2009) entitled to a contested case hearing?
[¶3] The relevant facts of this case are not many and are not disputed. Gold owns certain property in Sheridan County. In 2007, at Gold's request, the Board rezoned the property from agricultural to rural residential. Sometime prior to January 7, 2009, Gold submitted a subdivision and final plat application to the Sheridan County Public Works Department. On January 7, 2009, after allowing for public comment, the Sheridan County Planning and Zoning Commission (the Commission) recommended denial of the application. Gold requested, and was granted, a hearing before the Board to review the Commission's recommendation. The Board allowed Gold to continue to pursue the application. After allowing additional public comment, the Commission on April 1, 2009, again recommended denial of the application. On April 21, 2009, after a public hearing, the Board denied the application. The record basis for the Board's decision is limited to the minutes of the April 21, 2009, meeting because the Board's recording equipment failed. No separate findings of fact, conclusions of law, or final order were entered.
[¶4] Gold filed a Petition for Review in the district court on May 21, 2009. The allegations in that petition were that the Board's decision (1) was arbitrary, capricious, an abuse of discretion, and not in conformity with the law; (2) was made without observing procedures required by law; and (3) was not supported by substantial evidence. The district court heard the matter on December 1, 2009, and issued a decision letter on March 1, 2010. The district court determined (1) that the Board's actions were adjudicative and were, therefore, subject to judicial review, and (2) that the agency record was insufficient to allow judicial review. The district court "waffled" on the question now before this Court, remanding the matter to the Board for an "appropriate" hearing and declining "to mandate a contested case hearing under all circumstances."
[¶5] The Board's concessions make it unnecessary for us to answer "substantive" questions about the Board's decision, because the Board will make a new decision upon remand. The question we must answer is what procedure the Board is to follow in reaching that decision; that is, is a public hearing sufficient, or must a contested case hearing be held? That is a question of law that we review de novo. Hall v. Perry, 2009 WY 83, ¶ 13, 211 P.3d 489, 494 (Wyo. 2009); Union Pac. Res. Co. v. Dolenc, 2004 WY 36, ¶ 13, 86 P.3d 1287, 1291 (Wyo. 2004).
[¶6] We have said many, many times that "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." Northfork Citizens for Responsible Dev. v. Bd. of County Comm'rs of Park County, 2010 WY 41, ¶ 51, 228 P.3d 838, 855 (Wyo. 2010); see, e.g., In re Bd. of County Comm'rs, Sublette County, 2001 WY 91, ¶¶ 12-18, 33 P.3d 107, 112-114 (Wyo. 2001) (statute did not require State Board of Equalization to provide contested case hearing in examination of alleged improper tax assessment); In re Application for Certificate of Need by HCA Health Serv., 689 P.2d 108, 110-114 (Wyo. 1984) (federal/state statutory scheme contemplated contested case hearing in review of agency authorization of new hospital); Carlson v. Bratton, 681 P.2d 1333, 1338 (Wyo. 1984) (neither statute nor city ordinance required contested case hearing where mayor fired chief of police); Scarlett v. Town Council of Jackson, 463 P.2d 26, 29 (Wyo. 1969) (municipality's annexation decision did not require contested case hearing).
[¶7] In determining what "other law" would require that a hearing be a contested case hearing, we have frequently held that the determination of "adjudicative facts" requires a contested case hearing, but the determination of "legislative" facts does not. See, e.g., Sheridan Planning Ass'n v. Bd. of Sheridan County Comm'rs, 924 P.2d 988, 990 (Wyo. 1996) (approval of a planned unit development is "tantamount to amending zoning regulations and is, therefore, a legislative act"); Tri-State Generation & Transmission Ass'n v. Wyo. Pub. Serv. Comm'n, 735 P.2d 718, 721 (Wyo. 1987) (hearing on application of one utility company to purchase assets of another raised issues of adjudicative facts requiring contested case hearing); Bd. of County Comm'rs of Teton County v. Teton County Youth Servs., 652 P.2d 400, 416 (Wyo. 1982) (decision to zone or rezone an area is legislative decision not requiring contested case hearing, while decision to deny zoning certificate under Wyo. Stat. Ann. § 18-5-203 is adjudicative in nature, thus requiring contested case hearing). We have also noted that the distinction between adjudicative facts and legislative facts is not always entirely clear. Foster's Inc. v. City of Laramie, 718 P.2d 868, 873-74 (Wyo. 1986); Scarlett, 463 P.3d at 28. Generally speaking, legislative action "produces a general rule or policy," ...