Seherr-Thoss v. Teton Cty. Bd. of Cty. Comm'rs - 2014 WY 82, 329 P.3d 936

Rule:

Wyo. Stat. Ann. § 18-5-201 (2013) permits counties to regulate and restrict land uses in the unincorporated areas of the county. This zoning authority has limits. One limit is that this authority must be exercised in a manner that promotes the public health, safety, morals and general welfare of the county. Furthermore, when a county issues a regulation pursuant to those ends, it must use reasonable means to implement the regulation. Wyo. Stat. Ann. § 18-5-207 (2013) contains the other significant limitation, which contains some ambiguity.

Facts:

On June 7, 2010, Appellee, the Teton County Board of County Commissioners and Teton County Planning Director ("Teton County" or "County" or "Planning Director"), 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 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. RST next appealed the Board's Order to the Teton County District Court. The district court affirmed the Board's decision. 

Issue:

Did the Wyo. Rev. Stat. § 18-5-207 authorize the county to reasonably regulate expansion of RST’s gravel operation?

Answer:

Yes.

Conclusion:

The court held that Wyo. Stat. Ann. § 18-5-207 (2013) did not deny Teton County the authority to regulate RST’s nonconforming gravel business by omitting "land" when allowing regulation of changes to nonconforming uses because it said nothing about change in land use. The doctrine of diminishing assets resolved the statute's ambiguous use of "land" because it provided an objective way to quantify "land". The court found that RST met this doctrine because he actively ran his business when land use regulations were adopted and objectively showed an intent to expand it then and that operating his business had no substantially different and adverse impact on his neighborhood. Teton County’s bonding and reclamation requirements were void because they duplicated and conflicted with state requirements. Laches did not bar Teton County’s action because RST showed no prejudice.