Posted by: Patricia Salkin | January 6, 2013

WY Supreme Court Remands Matter for Findings After Concluding that Regulations Allowed Increased Density Calculation for Property Crossing Two Different Zones

C & J, LLC (“C&J”) owned two acres of property in Wilson, Wyoming, the northern part zoned for commercial use and the southern part zoned as Neighborhood Conservation – Single Family (“NCSF”), or for a single family residence in other words. The Teton County Board of Commissioners (“Board”) approved a development plan which allowed C&J to construct five residential units and one affordable housing unit in the single-family residential zone, and also allow for commercial parking and other commercial uses. Wilson Advisory Committee (“WAC”), a non-profit corporation representing citizens concerned about the development of Wilson, petitioned the district court for review. The district court affirmed the Board’s decision, and the Wilson Advisory Committee appealed.

In 2007, a Minor Boundary Adjustment permitted by Teton County Land Development Regulations combined C&J’s two tracts into a single parcel for development. Later in 2010, C&J sought to develop the property by constructing the residential and affordable houses described above on the southern property zoned for single-family residences. At public hearings, citizens voiced concerns about the project’s compliance with zoning regulations applicable to the NCSF parcel. Addressing these concerns, the Planning Commission explained that the 2007 boundary adjustment allowed for commercial development of the NCSF property, and thereafter voted unanimously to recommend approval of the proposal.

The Board held a public hearing on March 1, 2011, but reserved its decision until the next meeting to be held two weeks later. In the interim, the Planning Commission submitted a revised report explaining once again the benefits of the development plan, such as supporting the local population while not adversely affecting the environment. When the meeting was held on March 15, the Board approved the application subject to the condition of submitting written findings of fact and conclusions of law. About a month later the Board submitted such, finding, most relevant to the court, that C&J took steps to minimize any negative environmental affects and that the plan complies with all applicable Teton County regulations. WAC then appealed the decision upholding approval of the development application.

The first issue the court addressed was whether the approved plan’s increase of the overall residential density of the southern tract violated Teton County’s Land Development Regulations (“LDRs”). After analyzing the LDRs, the court determined that because the northern portion of C&J’s land is zoned WC, and the southern portion is zoned NCSF, the land may be developed as a single development and the density calculations shall be proportionate to the acreage in each zoning district. The court calculated that the square footage allowance on the NCSF parcel would be 5,892 square feet, and 6,942 square feet on the commercial parcel. Generally, any development of a dual-zone parcel would have to occur in the district designated for higher intensity use, but another LDR provision permits, in this case, development to take place primarily in the NCSF district if scenic views will be improved and adverse environmental impacts will be lessened. The court saw no error in the calculations for density, determining that they were not arbitrary or capricious or contrary to the applicable LDRs.

But the court then needed to determine whether the Board made the findings required by its LDRs as a predicate to allow more intense use of the single-family residential portion of a dual-zoned property. As mentioned above, in order to permit the bulk of development to take place on the NCSF parcel, the Board must have found the development will improve scenic views and lessen environmental impacts. The court reviewed the record and did not find any statements related to how the scenic views would be improved. Despite the Board’s argument that the project complied with all LDR requirements, including the provision at issue, this general statement did not amount to the specific finding of aesthetic appeal that the Board required by its own regulations.

Additionally, in relation to lessening the environmental impacts, the Board’s findings and conclusions contained only the general statement of complying with all applicable provisions of the LDR. Like the improvement of scenic views, the court found that the report was not clear as to whether the development’s proposed location would lessen adverse environmental impacts over those which might occur if each parcel were developed within the limitations of the applicable zoning regulations. However, even though the court found an absence of the required findings, it remanded because this lack of necessary findings rendered the record insufficient to permit judicial review. The court noted that it is the Board’s task to determine whether or not the record justifies the environmental and scenic findings, not that of the court’s. Once the Board makes its decision, then the court can review it and decide whether it was made arbitrarily or capriciously, or otherwise not in accordance with the law.

Wilson Advisory Committee v. Board of County Commissioners, 2012 WL 6634459 Wyo. 12/21/2012)

The opinion can be accessed at: http://www.courts.state.wy.us/Opinions/2012WY163.pdf

 


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