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Seherr-Thoss v. Teton County Board of County Commissioners

Supreme Court of Wyoming

June 25, 2014

ROGER SEHERR-THOSS, d/b/a RST SAND & GRAVEL and/or RST EXCAVATION AND TRUCKING, Appellant (Petitioner),
v.
TETON COUNTY BOARD OF COUNTY COMMISSIONERS and TETON COUNTY PLANNING DIRECTOR, Appellees (Respondents)

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Appeal from the District Court of Teton County. The Honorable Timothy C. Day, Judge.

Representing Appellant: Elizabeth N. Moore Ibanez and Joseph F. Moore Jr., of Moore & Myers, LLC, Jackson, WY. Argument by Ms. Moore Ibanez.

Representing Appellees: Keith M. Gingery, Deputy County Attorney, Jackson, WY; and Lori Potter of Kaplan Kirsch Rockwell, Denver, CO. Argument by Mr. Gingery.

Before HILL, BURKE, and DAVIS, JJ., and GOLDEN, J. (Ret.), and KAUTZ, D.J.

OPINION

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KAUTZ, District Judge.

[¶1] On June 7, 2010, Appellee, the Teton County Board of County Commissioners and Teton County Planning Director (" Teton County" or " County" or " Planning Director" ),[1] issued a Notice to Abate to Appellant Roger Seherr-Thoss (" RST" ). The County found that RST's gravel business violated the County's Land and Development Regulations (" LDRs" ) because the business had expanded in volume and footprint since the LDRs were adopted in 1978. The Planning Director issued an amended Notice to Abate on February 16, 2011 that required RST to reduce levels of production to pre-1978 levels. Following RST's appeal to the Teton County Board of County Commissioners (" Board" ), a contested case hearing was held on June 14-16, 2011. On August 8, 2011, the hearing officer issued a Recommended Findings of Fact, Conclusions of Law, and Order. After holding hearings on September 7 and November 1 of 2011, the Board adopted the hearing officer's Recommended Findings of Fact, Conclusions of Law, and Order with minimal amendments, issuing its decision on November 7, 2011. The Order recognized that RST's historical gravel crushing and extraction operations were grandfathered under Wyo. Stat. Ann. § 18-5-207. However, the Order attempted to reduce RST's operation to its 1978 extent. It required RST to reduce his operation's footprint to three acres, to submit a reclamation plan to the County within sixty days, to post a surety bond consistent with the LDRs within sixty days, to reduce his volume of extracted gravel to 15,000 cubic yards or

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17,000 tons per year, and to limit his operating hours to Monday through Friday from 7:00 a.m. to 5:00 p.m.

[¶2] RST next appealed the Board's Order to the Teton County District Court. The district court affirmed the Board's decision. We reverse.

ISSUES

[¶3] RST presents the following issues on appeal:

I. Did the Teton County Board of County Commissioners (Board) err in concluding that Wyo. Stat. § 18-5-207 does not prevent the County from prohibiting or otherwise regulating or limiting the expansion or enlargement of the use of Roger Seherr-Thoss's land for continued extraction and processing of gravel when Mr. Seherr-Thoss's family was using their land for that purpose before the County prohibited it through enactment of the Teton County Land Development Regulations (LDRs)?
II. Did the Board err in concluding that its authority to regulate Roger Seherr-Thoss's grandfathered gravel operation is not preempted by the Department of Environmental Quality's (DEQ) pervasive regulatory system, which regulates most aspects of the operation including bonding, reclamation, and expansion?
III. Did the Board misapply the doctrine of diminishing assets and fail to base its finding that Seherr-Thoss was not permitted any natural and necessary expansion of his family gravel mining operation on substantial evidence?
IV. Did the District Court or the Board abuse its discretion in failing to apply the equitable doctrine of estoppel to bar the County from requiring the [sic] Roger Seherr-Thoss to prove the scope and scale of his gravel extraction operations when Seherr-Thoss presented unrefuted evidence that the County purchased gravel from him and then waited nearly twenty years before attempting to shut down his livelihood under the Land Development Regulations?

The County phrases the issues on appeal as:

I. Whether Wyo. Rev. Stat. § 18-5-207 Authorizes the County to Reasonably Regulate Expansion of RST's Gravel Operation.
II. Whether the Wyoming Environmental Quality Act Preserves a Role for Counties to Regulate Expanded, Nonconforming Gravel Operations.
III. Whether Substantial Evidence Supports the Determination that the Doctrine of Diminishing Assets Does Not Authorize Expansion of RST's Gravel Operation.
IV. Whether Substantial Evidence Supports the Determination that Equitable Estoppel and Laches Do Not Bar the County from Enforcing its Zoning Regulations.

FACTS

[¶4] RST and his father owned and operated an approximately 350-acre cattle ranch in Teton County, Wyoming. In the 1970s, RST also operated a trucking business to supplement his income. Since at least 1977, RST and his father stopped other economic pursuits, cut back on their livestock operation, and focused on operating a gravel operation. They have continuously operated a gravel operation within the 350-acre ranch.

[¶5] In 1978, Teton County enacted its first LDRs. Those LDRs placed RST's property in a residential-agricultural zone. In this type of zone, the County does not permit gravel operations unless the landowner obtains a special-use permit (" SUP" ) from the County. In 1994, the County repealed and replaced the 1978 LDRs with the 1994 LDRs, which also prohibited gravel operations on RST's property.

[¶6] The County did not begin to investigate and attempt to enforce its LDRs against RST until 1995, claiming that it did not have knowledge of RST's gravel operation. When the County began investigating RST's gravel operation, it was a small operation using approximately three acres. Nonetheless,

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RST derived most of his income from his gravel operation. The operation was located in a portion of the ranch where it could be expanded in accordance with need and economic benefit to RST. From 1995 to 2010, the County and RST engaged in discussions regarding the legality of RST's use of his property. After discussions and short-term solutions had failed to resolve the issue, the Planning Director issued a Notice to Abate to RST on June 7, 2010 that ordered him to cease gravel crushing and extraction operations on his property and to reduce his screening and stockpiling to pre-1978 levels. On February 16, 2011, the Planning Director subsequently amended the Notice to Abate to also require RST to reduce his production levels to pre-1978 levels. RST appealed to the Board.

[¶7] After a contested case hearing held on June 14-16, 2011, a hearing officer issued a Recommended Findings of Fact, Conclusions of Law, and Order. The hearing officer found that that all aspects of RST's gravel operation, including gravel extraction and crushing, were grandfathered under Wyo. Stat. Ann. § 18-5-207. The hearing officer also found, however, that the size and scope of RST's land use was grandfathered only to the extent of his operations at the time the LDRs became effective in 1978. To that end, the hearing officer examined the earliest available evidence that indicated the size and scale of RST's operation. The hearing officer found that the first inspection of RST's gravel operation occurred in 1995 and was conducted by John Erickson of the Wyoming Department of Environmental Quality (" DEQ" ). This inspection revealed that RST's operation covered approximately three acres. RST first reported production volume of 16,200 tons to the Department of Revenue in 1996. In 1998, RST first reported extraction volume to DEQ of 15,000 cubic yards or 17,000 tons of gravel per year.

[¶8] On November 7, 2011, the Board issued its decision, which adopted the hearing officer's Recommended Findings of Fact, Conclusions of Law, and Order with minimal amendments. Although the Order recognized that all aspects of RST's gravel operation were grandfathered, it required RST to reduce the footprint of his operation to three acres, to submit a reclamation plan to the County within sixty days, to post a surety bond consistent with the LDRs within sixty days, to reduce his volume of extracted gravel to 15,000 cubic yards or 17,000 tons per year, and to limit his operating hours to Monday through Friday from 7:00 a.m. to 5:00 p.m.

[¶9] RST appealed to the Teton County District Court. The district court affirmed the Board's Order. RST then filed this timely appeal. On December 10, 2013, this Court heard oral argument. Further facts are included below with the analysis for each issue.

STANDARD OF REVIEW

[¶10] The Wyoming Rules of Appellate Procedure govern reviews of administrative decisions. W.R.A.P. 12. Specifically, Rule 12.09(a) limits review to matters contained in the Wyoming Administrative Procedure Act, which provides in pertinent part:

(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 accordance with law; [or]
(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute.

Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2013).

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[¶11] When reviewing an " appeal from a district court's review of an administrative agency's decision, we give no special deference to the district court's decision. Instead, we review the case as if it had come directly to us from the administrative agency." Dale v. S & S Builders, LLC, 2008 WY 84, ¶ 8, 188 P.3d 554, 557 (Wyo. 2008) (internal quotation marks omitted).

[¶12] We apply the substantial evidence standard whenever we review an evidentiary ruling. Dale, ¶ 22, 188 P.3d at 561. When conducting a substantial evidence review of the record, we extend to the administrative agency the deference that we normally accord to the findings of fact by a trial court. Id., ¶ 11, 188 P.3d at 558. We are mindful that " the administrative body is the trier of fact and has the duty to weigh the evidence and determine the credibility of ...


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