Posted by: Patricia Salkin | July 26, 2014

WY Supreme Court Holds Owner Of Gravel Business Had A Vested Right To Expand Gravel Operation Without Unauthorized Regulatory Interference From The County

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 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. Following RST’s appeal to the Teton County Board of County Commissioners (“Board”), a contested case hearing was held and the Board adopted the hearing officer’s Recommended Findings of Fact, Conclusions of Law, and Order with minimal amendments. 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 appealed the Board’s Order to the Teton County District Court, which affirmed the Board’s decision.

The court analyzed this claim under the doctrine of diminishing assets which sets forth: 1) the land owner must prove that excavation activities were actively being pursued when the Ordinance became effective; 2) the land owner must prove that the area that he desires to excavate was clearly intended to be excavated, as measured by objective manifestations and not by subjective intent; and, 3) the land owner must prove that the continued operations do not, and/or will not, have a substantially different and adverse impact on the neighborhood. The County did not dispute that RST had proved the first prong—that he was actively conducting a gravel operation at the time the County’s LDRs became effective. As to the second prong, the court disagreed with the Board’s finding that because RST did not “cordon off” additional land on his ranch as designated expansion area, he necessarily did not intend to expand. Because the hearing officer and the Board cited no authority for this conclusion nor did they point to some evidence in the record that this is common practice within the gravel extraction industry. RST offered photos and testimony demonstrating its intent to expand, thus the court found the second prong was satisfied. The third prong was also satisfied since under the Wyoming Environmental Quality Act (“EQA”) an interested person can potentially trigger a contested case hearing by objecting to the proposed expansion. Thus, the EQA provides a mechanism for determining whether an expanded gravel operation will have a substantially different and adverse impact on the neighborhood.

Accordingly the court reversed and remanded the district court, holding that RST may expand his gravel operation on the parcel on which it lies to the extent that it complies with the requirements of the EQA and its accompanying regulations.

Seherr-Thoss v Teton County board of County Commissioners, 2014 WL 2921818 (WY 6/25/2014)

The opinion can be accessed at:

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