Posted by: Patricia Salkin | June 6, 2014

WY Supreme Court Holds Second Application For A Special Exception To Operate A Bed and Breakfast In A Residential Area Was Not Barred By Res Judicata Nor Collateral Estoppel

On March 24, 2011, the Bernards filed their first application for a special exemption to operate a bed and breakfast in an area of Sheridan, Wyoming which was zoned as an R–1 Residence District. As part of the application process, they were required to give notice to neighbors within 300 feet of the boundary of their property. The Tarvers live within the notification area and objected to the Bernards’ application on several bases, including increased traffic and parking issues. The Board held a hearing on April 14, 2011,and approved the Bernards’ application. On January 13, 2012, the district court reversed the Board’s approval of the Bernards’ special exemption application. The Bernards filed a second application for a special exemption on January 25, 2012, and included the recently approved parking plan and a certificate of occupancy confirming the bed and breakfast complied with all code requirements. The Tarvers again objected, claiming the Bernards’ second application was barred by res judicata, but the Board granted the Bernard’s request. The Tarvers filed another petition for review with the district court which upheld the Board’s decision, and the Tarvers appealed.

The court held that although the decision of a zoning authority will generally be considered final and identical subsequent applications are barred under principles of res judicata and/or collateral estoppel, “res judicata will not prevent the approval of a second application where the second application presents substantial changes from the first application.” In this case, the second application differed from the first because it included an approved parking plan and a certificate of occupancy. The Tarvers have not demonstrated how allowing one special exemption would change the nature of their neighborhood, leading to an influx of other nonconforming uses. In addition, Mr. Bernard testified about the efforts they had made to keep the commercial nature of their enterprise discrete, including inconspicuous signage, landscaping typical of the rest of the neighborhood, etc. The Board’s finding that the Bernards’ bed and breakfast, with the parking restrictions, was consistent with the City’s master plan is in accordance with law and supported by substantial evidence. The Board’s decision in favor of the Bernard’s was therefore upheld.

Tarver v City of Sheridan Board of Adjustment, 2014 WL 2535251 (WY 6/5/2014)

The decision can be accessed at: http://www.courts.state.wy.us/Documents/Opinions/2014WY71.pdf


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