BOARD OF COUNTY COMMISSIONERS
OF TETON COUNTY v. CROW
SUPREME COURT OF WYOMING
65 P.3d 720 (2003)
March 26, 2003, Decided
JUDGES:
Before HILL, C.J., and
GOLDEN, LEHMAN *, KITE, and VOIGT, JJ.
* Chief Justice at time of
oral argument.
[**722] HILL, Chief Justice.
SECTION 2450. MAXIMUM SCALE OF DEVELOPMENT A. [***2] Residential Development. Notwithstanding the development standards specified in Table 2400, Schedule of Dimensional Limitations, single-family development shall comply with the following standards:
1. Habitable space. The maximum amount of habitable space for a single family dwelling, including associated accessory structures, is 8,000 square feet.
2. Total square footage. The total floor area of a single family dwelling, including all associated accessory structures, shall not exceed 10,000 square feet.
3. Basements excluded. Basements, as defined in these Land Development Regulations, are excluded from the calculation of maximum scale of development. For the purposes of this section, only floor area above ground shall be counted. Floors above ground shall include partial levels such as lofts and interior balconies. (Amended 9/27/94) [Vol. 1, p. 106]
The LDR's at issue here, as well as Teton County's Comprehensive Plan, were adopted on May 9, 1994.
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1. Whether the district court erred a) in granting Crow's summary judgment motion on the basis that, as applied to the specific facts of this case, the enforcement of Section 2450 against Crow violates Crow's substantive due process rights, and b) in denying the County's summary judgment motion on the basis that, as applied to the specific facts of this case, the enforcement of section 2450 against Crow did not violate Crow's substantive due process rights?
2. Whether the district [***5] court erred in granting Crow's summary judgment motion concerning Count II of the County's complaint pertaining to development without a permit?
1. The district court was
correct in ruling that, "as applied to the specific facts of this case", Section
2450 of Teton County's Land Development Regulations "in no
way
below that Crow disputed this fact and that a resolution of this question is very material to the outcome of this case. On remand this factual issue must, of course, be resolved by the fact-finder.
rationally relates to the County's objective of promoting and protecting the public health, safety, morals, and general welfare," and, therefore, violates the Crows' substantive due process rights.
2. The County's Land Development Regulations did not require the Crows to obtain a permit in order to make nonstructural changes to the interior of an existing, permitted and approved home.
3. The Crow home is grandfathered under the Board's established custom and usage, which permits other subdivision [***6] lots to build out according to the rules and regulations in place when the subdivision was approved and platted.
4. The Board's treatment of the Crows and the discriminatory intent of Section 2450 violates equal protection of the law under the United States and Wyoming Constitutions. 5. The County's Land Development Regulations were not promulgated in accord with applicable laws.
6. Teton County's Planning Director has impermissibly engaged in illegal rule making with respect to how "habitable space" is measured and the terms "habitable space" and "total floor area" are unconstitutionally vague and in violation of the 14th Amendment Due Process Clause and Art. 1, § 6 of the Wyoming Constitution.
7. Section 2450 constitutes a taking.
8. Section 2450 violates the Crows' unenumerated right to residential privacy.
[**724] 9. Section 2450 violates the Crows' right to associate with their family under the 14th Amendment Due Process Clause and Art. 1, § 6 of the Wyoming Constitution.
I. Is the Board's regulation of "habitable space" and "total floor area" of homes - which are [***7] otherwise approved for safety, land use compatibility and aesthetics - in order to promote "community character, rural character, rural western character, land use and character type compatibility, social and economic diversity through housing affordability and social and economic diversity by lessening the demand on affordable housing," an exercise of power beyond that delegated to counties to regulate the location and use of buildings and use of lands in order to promote health, safety, morals or welfare, as required by W.S. § 18-5-201?
II. If "community character, rural character, rural western character, land use and character type compatibility, social and economic diversity through housing affordability and social and economic diversity by lessening the demand on affordable housing" are legitimate state interests as defined by W.S. § 18-5-201, does Section 2450 promote the public health, safety, morals or general welfare, as required by W.S. § 18-5-201 ?
1. Whether Wyo. Stat. § 18-5-201 [***8] authorizes counties to regulate the height, bulk and scale of buildings?
2. Whether Section 2450 of the Teton County Land Development Regulations satisfies the requirements of substantive due process facially?
Appellee Jeffery S. Overton incorporates herein all of the issues set forth in the brief of Appellee Thomas L. Crow and, in addition, the following issues which are unique to Appellee Overton:
1. When a plaintiff mistakenly files a lawsuit against an individual who was president of a corporation, rather than against the corporation itself, and the plaintiff fails to allege or to adduce any evidence that the individual or the corporation did or failed to do anything that relates to piercing the corporate veil, is the individual defendant entitled to dismissal as a matter of law?
2. Is a person who is not a "Developer" subject to the Teton County Land Development Regulations?
3. Can a person who is not a "Landowner" be made to abate alleged violations of the Teton County Land Development Regulations and be ordered to [***9] demolish real property which he does not own and which he does not have a legal right to enter?
4. Can a person who is not a "Landowner" be made to pay a per diem fine for alleged continuing violations of the Teton County Land Development Regulations when the person is legally incapable of remedying the violation in order to stop the fine from continuing to accumulate?
3. A request from Peter Moyer for his client Tom Crow. Mr. Crow has two lots in Owl [***10] Creek. He would like to combine the two lots and build a 12,000 square foot [**725] house. The Owl Creek covenants allow for this. However, the County does not deal with covenants and the County Plan only allows for an 8,000 square foot house. Bill Collins stated that Mr. Crow would need a Plan Amendment or a Variance. Peter stated that it comes down to whether it is grandfathered. Sandy stated that this was not grandfathered when the Plan was adopted.
So far as the record on appeal shows, Crow did not seek a plan amendment or a variance, nor did he further explore by administrative means whether or not his property was "grandfathered" so as not to be affected by the adoption of the 1994 LDR's.
When Cally, my wife, and I were looking for the best possible place to build our retirement home, we decided upon Teton County from among many very desirable alternatives. We did so, in part, because of the relatively limited amount of land which could ever be developed, leaving most of Teton County in its natural state. It is very important to us to be able to reach [teach] our family, especially our grandchildren, the great value of associating with family and the importance and beauty of nature, especially as found in Teton County.
Among our many considerations in deciding where to retire was that we wanted to build a home, not only where [***13] we could spend our entire lives, but one that would be an especially attractive and suitable place for our entire family, including our children and particularly grandchildren. We knew we would have to compete for our children's and our grandchildren's time, so we wanted to build a home where they would want to come and bring their friends. Our approach has worked. We have been blessed and continue to be blessed with numerous visits. We are committed to teaching our family, especially our grandchildren, the incalculable importance of sense of family, of associating with one's family and of appreciating nature to a healthy and balanced life. We [**726] wanted a home that could accommodate our extended family in a place where the beauty of nature is obvious and abundant. We wanted a place which would be consistent with encouraging those values and conducive to passing them along to our grandchildren, especially. We felt the need to make a place that would be so attractive that other demands on their time would be overcome. That approach demanded that we build a home of a certain size with sufficient bedrooms. Our approach would have the advantages that we would more likely see them more often, [***14] they would have exposure to those values that, for us, are among the most important in life, and incidentally, we would also get to know with whom they were consorting. We have been visiting the Jackson area since 1995. We are certain that Jackson Hole is the right place, and that our home is as it needs to be to accommodate our extended family and to attract our children and grandchildren in order to inculcate the values we believe they will need as they carry forth in their own lives.
Governing Statutes
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Teton County's Land Development Regulations
Habitable space. Habitable space means heated space used for living purposes. Heated storage areas, studios, exercise rooms, offices, and similar spaces are included as habitable space. Barns, garages, unfinished attic space and under floor spaces are not included in habitable space.
LDR's as Facially Unconstitutional
The constitutional standard of substantive due process, under both United States and Wyoming interpretations, demands that a police power regulation must promote a legitimate public objective with reasonable means. The substantive due process standard of reasonableness is applicable during the initial legislative process and theoretically confines the legislators. The judiciary may, in the context of an actual case, be called on to measure the legislative performance against the constitutional standard. When the legislative enactment lies in the economic and social welfare area, and when there are no suspect criteria or fundamental interests involved, the court will, in testing the enactment, inquire only as to whether the regulation is of debatable reasonableness. In other words, if the court perceives that the legislature had some arguable basis [***19] for choosing the end and the means, it will sustain the regulation at least as to compliance with substantive due process. Only when a regulation amounts to an arbitrary deprivation of regulatees' property will it be deemed to violate the dictates of substantive due process. As we said in Washakie County School District No. One v. Herschler, Wyo., 606 P.2d 310, 333 (1980), cert. denied 449 U.S. 824, 101 S. Ct. 86, 66 L. Ed. 2d 28:
In the present case the appellees sought, and the trial court apparently granted, a declaration of the ordinance's general or facial invalidity under substantive due process. We conclude, for reasons that follow, that the ordinance does comply with the requirements of substantive due process and that the trial court's contrary conclusion is erroneous.
The legitimate objectives of the police power are loosely characterized as being public in nature and the potential range is very broad. See [***20] Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 104 S. Ct. 2321, 81 L. Ed. 2d 186 (1984); Berman v. Parker, 348 U.S. 26, 75 S. Ct. 98, 99 L. Ed. 27 (1954). There is no real dispute in this case that the objectives of the Cheyenne airport zoning ordinance are both public and legitimate. The trial judge, in fact, stated:
sought for the public's good and safety * * *."
As to the means chosen by the Cheyenne council to achieve these objectives, we reiterate that, in the economic and social welfare area and when the ordinance is examined in a general, facial manner, the courts will usually go no further than to ascertain the debatable reasonableness of the legislative choices. See Snake River Venture v. Board of County Commissioners, Teton County, Wyo., 616 P.2d 744, 753 (1980). The United States Supreme Court, in dealing with general, facial challenges to local exercises of police power, has sustained the substantive due process reasonableness of a number of facets of local zoning. Thus, in Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S. Ct. 114, 71 L. Ed. 303, 54 A.L.R. 1016 (1926), [***21] the Court determined that in a general sense, it is constitutionally reasonable and in accord with substantive due process for a local legislature to use comprehensive zoning and its uncompensated restrictions on use and bulk in order to promote the health, safety, morals, and general welfare. In Gorieb v. Fox, 274 U.S. 603, 47 S. Ct. 675, 71 L. Ed. 1228, 53 A.L.R. 1210 (1927), the Court upheld the general reasonableness of zoning setbacks and their requirement that portions of plots be left unbuilt. In Goldblatt v. Town of Hempstead, New York, 369 U.S. 590, 82 S. Ct. 987, 8 L. Ed. 2d 130 (1962), the Court upheld the general reasonableness of local zoning restrictions on excavations below the depth of the water table. In Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 98 S. Ct. 2646, 57 L. Ed. 2d 631 (1978), the Court sustained the general constitutionality of height limitations that New York City had imposed to protect historic and aesthetic landmarks. See also Welch v. Swasey, 214 U.S. 91, 29 S. Ct. 567, 53 L. Ed. 923 (1909).
These Supreme Court precedents do not address the specific issues [***22] of airport zoning and its general validity under the standards of substantive due process. We note, however, that they do deal with zoning provisions and restraints on the portions of property that can be physically used. Thus, the United States Supreme Court has sustained the general constitutional reasonableness of restrictions on the depth of activities in the subsoil ( Goldblatt v. Town of Hempstead, New York, supra), the lateral extent of activities on the surface (Gorieb v. Fox, supra, and Village of Euclid, Ohio v. Ambler Realty Co., supra), and the height of activities in the airspace (Penn Central Transportation Co. v. City of New York, supra). We hold, therefore, that to the extent that the lower court in the present case purported to enjoin airport zoning in general as contrary to the demands of substantive due process, it was in error.
Substantive due process, with its emphasis on legitimate objectives and rational means, can be explored and applied in a general sense when the reasonableness of the entire ordinance or statute is in question. See e.g. Village of Euclid, Ohio v. Ambler Realty Co., supra. [***23] It can also be examined in a specific sense, when the court evaluates the reasonableness of a law as applied to an individual. See Nectow v. City of Cambridge, 277 U.S. 183, 48 S. Ct. 447, 72 L. Ed. 842 (1928).
Cheyenne Airport Board v. Rogers, 707 P.2d 717, 726-28 (Wyo. 1985).
The courts have recognized this role of planning, in defining planning as concerned with ". . . the physical development of the community and its environs in relation to its social and economic well-being for the fulfillment of the rightful common destiny, according to a 'master plan' based on 'careful and comprehensive surveys and studies of present conditions and the prospects of future growth of the municipality,' and embodying scientific teachings and creative experience."
[**729] Donald G. Hagman and Julian Conrad Juergensmeyer, Urban Planning and Land Development Control [***24] Law, § 2.10 at 26 (1986) (citing Angermeier v. Borough of Sea Girt, 27 N.J. 298, 142 A.2d 624, 629 (1958)).
LDR's as Violation of Substantive Due Process as Applied
10. Section 2450 promotes the legitimate public objectives of protecting, promoting, and preserving (1) community character, (2) rural character, (3) rural western character, (4) land use and character type compatibility, (5) social and economic diversity through housing affordability, and (6) social and economic diversity by lessening the demand on affordable housing.
11. Other [***26] subdivisions, specifically Teton Pines, have been allowed to build houses in excess of Section 2450's limitations.
12. [Crow] uses his residence solely for a family residence.
13. [Crow] has a large immediate and extended family. 14. [Crow] owns and built this residence on four contiguous lots.
15. If developed individually, each lot could contain a residence of 8,000 square feet of habitable space, and 10,000 square feet of total floor area.
Substantive due process in zoning requires that a regulation promote a legitimate public objective through rational means. Cheyenne Airport Bd. v. Rogers, 707 P.2d 717, 723 [727] (Wyo. 1985). A substantive due process claim can be examined in a specific sense when the court evaluates the reasonableness of a law as applied to an individual. Id. at 728.
The addition of second story floor area within a completed residence in no way altered the aesthetics of the residence. Therefore, enforcement of Section 2450 against [Crow] does not promote the aesthetic concerns of protecting, promoting, and preserving [***27] community character, rural character, or rural western character.
The addition of second story floor area within a completed residence in no way altered [Crow's] exclusive use of the structure as a residence for his large family. Therefore, enforcement of Section 2450 against [Crow] does not protect, promote, or preserve land use compatibility or character type compatibility.
The addition of second story floor area within a completed residence in no way affects social and economic diversity. [Crow's] residence has the same impact on [**730] housing affordability with or without the additional flooring. Similarly, [Crow's] residence has the same impact on the demand for affordable housing with or without the additional flooring.
As applied to the specific facts of this case, this Court concludes that the enforcement of Section 2450 of the LDR's against [Crow] in no way rationally relates to the County's objective of promoting and protecting the public health, safety, morals, and general welfare. Therefore, as applied to the specific undisputed facts in this case, Section 2450 violates [Crow's] substantive due process rights.
We also note at this juncture [***28] that the district court appears to have granted summary judgment in favor of Overton on the basis that its resolution of Crow's due process issue rendered any further action against Overton moot. That would not necessarily be the case, and we cannot accept that rationale.
Did the District Court Err in Granting Summary Judgment with Respect to Teton County's Allegations of Development without a Permit
Development. Development means any of the following activities for which permission may be required pursuant to these Land Development Regulations: (b) the construction, reconstruction, conversion, structural alteration, relocation, or enlargement of any buildings, structures, or accessory structures[. [***34] ]
The regulations go on to clarify that a "development permit" includes a "building permit," and that "structural alteration" means "any change in the supporting members of a building or structure, such as the bearing walls, beams, or girders, or any change in the dimension or configuration of the roof or exterior walls." Teton County issues building permits under the Uniform Building Code, Section 106.1, which provides:
Except as specified in Section 106.2, no building or structure regulated by this code shall be erected, constructed, enlarged, altered, repaired, moved, improved, removed, converted or demolished unless a separate permit for each building or structure has first been obtained from the building official. [932]
Other Grounds for Affirmance Addressed by Crow in Response to Teton County's Appeal in Case No. 01-244
Case No. 01-245
In interpreting statutes, our primary consideration is to determine the legislature's intent. All statutes relating to the same subject or having the same general purpose must be considered and construed in harmony. Statutory construction is a question of law, so our standard of review is de novo. We begin by making an inquiry respecting the ordinary and obvious meaning of the words employed according to their arrangement and connection. We construe the statute as a whole, giving effect to every word, clause, and sentence, and we construe all parts of the statute in pari materia. Wyoming Board of Outfitters and Professional Guides v. Clark, 2001 WY 78, P 12, 30 P.3d 36, P 12 (2001).
Allsop v. Cheyenne Newspapers, Inc., 2002 WY 22, P 9, 39 P.3d 1092, P 9 (Wyo. 2002). Our standard of review with respect to the construction
of statutes is well known. In interpreting statutes, our primary consideration is to determine the legislature's [***41] intent. All statutes must be construed in pari materia and, in ascertaining the meaning of a given law, all statutes relating to the same subject or having the same general purpose must be considered and construed in harmony. Statutory construction is a question of law, so our standard of review is de novo. We endeavor to interpret statutes in accordance with the legislature's intent. We begin by making an inquiry respecting the ordinary and obvious meaning of the words employed according to their arrangement and connection. We construe the statute as a whole, giving effect to every word, clause, and sentence, and we construe all parts of the statute in pari materia. When a statute is sufficiently clear and unambiguous, we give effect to the plain and ordinary meaning of the words and do not resort to the rules of statutory construction. Wyoming Board of Outfitters and Professional Guides v. Clark, 2001 WY 78, P 12, 30 P.3d 36, P 12 (Wyo.2001); Murphy v. State Canvassing Board, 12 P.3d 677, 679 (Wyo.2000). Moreover, we must not give a statute [**734] a meaning that will nullify its operation if it is susceptible of another interpretation. Billis v. State, 800 P.2d 401, 413 (Wyo.1990) [***42] (citing McGuire v. McGuire, 608 P.2d 1278, 1283 (Wyo.1980)).
Shumway v. Worthey, 2001 WY 130, P 8, 37 P.3d 361 P 8 (Wyo. 2001).
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Faced with the proffer of expert [***47] scientific testimony, then, the trial judge must determine at the outset, pursuant to [Fed. R. Ev.] Rule 104(a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand and determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.
The Court did not set out a detailed methodology to be used by judges in making such an assessment but pointed to salient features of such an analysis, which included: Whether the scientific theory can be (and has been) tested, whether the theory has been subjected to peer review and publication, the known or potential rate of error, and "general acceptance" within the applicable scientific community. Crow contends that Teton County cannot rely on its own studies or those done by a sister resort with very similar "characteristics," Pitkin County, Aspen, Colorado. Crow's argument continues that it must be assumed the trial court relied on those materials, and since there is no credible evidence in the [***48] record to support a conclusion that Teton County's regulations promote the "general welfare" of the citizens of Teton County, then this Court may not rely upon any of those materials to approve of Teton County's LDR's. There are several leaps in logic in this argument, and we decline to make them. It is not clear what consideration the district court gave to any of the evidentiary materials in the record that have pertinence to resolution of the issues at large. It is not clear that the Daubert case has any relevance at all in these circumstances. The issue appears to be more in the nature of whether or not Teton County may justifiably rely on the experiences of a county like Pitkin County in deciding or further evaluating critical issues about development. It seems almost unquestionable that relying upon the experiences of a sister resort city would be solomonic on the part of the people of Teton County rather than unreasonable, as suggested by Crow. However, these are bridges that must be crossed as they present themselves in further proceedings before the district court which must give plenary consideration to the issues presented by the parties. As noted above, in those proceedings, [***49] Crow must carry the burden of proof that the regulations have no rational basis and are, therefore, unconstitutional.
Issues Raised by Overton
To promote the public health, safety, morals and general welfare of the county, each board of county commissioners may regulate and restrict the location and use of buildings and structures and the use, condition of use or occupancy of lands for residence, [***51] recreation, agriculture, industry, commerce, public use and other purposes in the unincorporated area of the county. However, nothing in W.S. 18-5-201 through 18-5-207 shall be construed to contravene any zoning authority of any incorporated city or town and no zoning resolution or plan shall prevent any use or occupancy reasonably necessary to the extraction or production of the mineral resources in or under any lands subject thereto.
(a) Each board of county commissioners may by resolution create and establish a planning and zoning commission. The commission shall be composed of five (5) members appointed by the board at least three (3) of whom shall reside in the unincorporated area of the county, provided that this provision shall not affect the membership composition of any existing commission. The terms of the members appointed to the first planning and zoning commission shall be of such length and [***52] so arranged that the terms of one (1) member will expire each year, and thereafter each member shall be appointed for a term of three (3) years. Any member of the commission may be removed for cause other than politics or religion and after public hearing by the board of county commissioners. If a vacancy occurs in the commission the board of county commissioners shall fill the vacancy by appointment for the unexpired term. The planning and zoning commission shall organize within thirty (30) days after its establishment, shall adopt rules for the transaction of its business and keep a record of its actions and determinations. Three (3) members shall constitute a quorum for the transaction of business. All meetings, records and accounts of the commission shall be public. The county clerk shall serve as secretary to the commission.
(b) The planning and zoning commission may prepare and amend a comprehensive plan including zoning for promoting the public health, safety, morals and general welfare of the unincorporated areas of the county, [**737] and certify the plan to the board of county commissioners. Before certifying its plan or amendments thereto to the board the commission shall hold [***53] at least one (1) public hearing. Notice of the time and place of hearing shall be given by one (1) publication in a newspaper of general circulation in the county at least thirty (30) days before the date of the hearing. Any person may petition the planning and zoning commission to amend any zoning plan adopted under the provisions of W.S. 18-5-201 through 18-5-207.
(c) The planning and zoning commission shall prepare recommendations to effectuate the planning and zoning purposes and certify its recommendations to the board of county commissioners. Before adopting the recommendations the board shall hold at least one (1) public hearing. Notice of the time and place of hearing shall be given by one (1) publication in a newspaper of general circulation in the county at least fourteen (14) days before the date of the hearing. After public hearing has been held, the board shall vote upon the adoption of the planning or zoning recommendation. No planning or zoning recommendation shall be adopted unless a majority of the board votes in favor thereof.
It is unlawful to locate, erect, construct, reconstruct, enlarge, change, maintain or use any building or use any land within any area included in a zoning resolution without first obtaining a zoning certificate from the board of county commissioners and no zoning certificate shall be issued unless the plans for the proposed building, structure or use fully comply with the zoning regulations then in effect. The board of county commissioners shall act promptly upon any application filed with it and shall grant certificates when the proposed construction or use complies with the requirements of the zoning resolution. If it denies the application, the board shall specify the reasons for such denial. The decision of the board of county commissioners may be reviewed by the district court and by the supreme court upon appeal in the same manner as provided in W.S. 15-626 [§ 15-1-609], for review of decisions of boards of adjustment.
§ 18-5-204. Violation of W.S. 18-5-202 (c); continuing violation.
No person shall locate, erect, construct, reconstruct, enlarge, change, maintain or use any building [***55] or use any land in violation of a resolution or amendment adopted by any board of county commissioners under W.S. 18-5-202 (c). Each day's continuation of such violation is a separate offense.
Any zoning resolution passed by the board pursuant to W.S. 18-5-202 (b) and (c) is enforceable in addition to other remedies provided by law by injunction, mandamus or abatement.
§ 18-5-206. Penalty for violation of W.S. 18-5-201 through 18-5-204. Whoever violates any provision of W.S. 18-5-201 through 18-5-204 shall be fined
not more than seven hundred fifty dollars ($ 750.00) for each offense.
A zoning resolution enacted under the provisions of W.S. 18-5-201 through 18-5206 shall not prohibit the continuance of the use of any land, building or structure for the purpose for which the land, building or structure [***56] is used at the time the resolution is adopted and it is not necessary to secure any certificate permitting such continuance. However the alteration or addition to any existing building or structure for the purpose of effecting any change in use may be regulated or prohibited by zoning resolution. If a nonconforming use is discontinued any future use of such land, building or structure shall be in conformity with the provisions of the resolution regulating uses in the area in which the land, building or structure is located.
[**738] § 18-5-208. Coordination of planning efforts with federal agencies.
The board of county commissioners of a county which has officially adopted a comprehensive plan pursuant to W.S. 18-5-202(b) may participate in efforts to coordinate the plan with federal regional forest or other resource management plans as provided in the Federal Land Policy and Management Act of 1976 and federal regulations adopted pursuant to that act, including, but not limited to, Title 36, of the Code of Federal Regulations, part 219.7 and Title 43, of the Code of Federal Regulations, part 1610.3. Wyo. Stat. Ann. § § 18-5-201 through -208 [***57] (LexisNexis 2001).
8. Community Character. (a) The Teton County Comprehensive Plan and Land Development Regulations
prepared and adopted by Teton County were aimed at preserving the character of the County. One theme was echoed time and time again: "Preserve the character of Teton County. Keep what we like about the County, and improve or change the things we don't like." (Teton Plan at p. 3-4) The overriding community character theme in the Teton Plan and TCLDRs is the County's goals of maintaining and preserving its small-town character, rural character and western character. The goals of preserving western and rural character are relevant to Section 2450.
9. Community Aesthetics. (a) Inherent in the goal of protecting and preserving community character is the
goal of protecting and maintaining community aesthetics. Teton County is one of the most aesthetically pleasing counties in the country. [**740] Contributing to this aesthetic are the broad scenic vistas and the dominance of the rural natural landscape over built structures.
10. Maintaining Land Use Compatibility/Character Type Compatibility. (a) A key concern in land use planning and zoning generally is that neighboring
land uses are compatible with one another. Generally this land use compatibility concern is directed at the land uses within the same area or district that have external adverse impacts because of the use itself (e.g., the location of a store in a residential neighborhood). The community character approach used in the Teton Plan and land development regulations (the use of community character types) looks beyond land use to determine the elements that create similar or consistent character or which differ substantially in character, creating incompatibility or even nuisances for neighboring development.
11. Housing Affordability.
From 1970 to 1990, Teton County created more jobs than it did homes, leaving the housing supply far below demand. Furthermore, much of the new and existing housing stock has been occupied as second or vacation homes, not by residents. Since second home owners can generally pay more than residents when purchasing property, price of property in Teton County has become unaffordable to most Teton County residents. As a result, many of those employed in the County have been forced to find housing outside the community, share housing with others, live in substandard or inadequate housing, or hold more than one job in order to afford the limited housing that is available.
(Plan, Affordable Housing, p. 5-1) (emphasis added). The Plan characterizes this increase in housing costs, substantially in response to second and vacation housing demand, as the "root of the affordable [***69] housing problem." (Plan, Affordable Housing, p. 5-1) (emphasis added). Even the "issues" statement in Chapter Three, Community Character, recognizes the connection between second and vacation housing demand and the upward spiral of land costs, noting that "[a] strong second home market has caused residential property values to skyrocket." (Plan, Community Character, p. 3-3) (emphasis added).
Social and economic classes that once mingled in the community are growing apart as households that cannot afford homes in Teton County are relocating to Teton Valley, Idaho, Alpine, and Bondurant. The community as a whole has decried this trend. As described in the Community Character chapter, maintaining both a social and economic diversity within Teton County is very important to its residents.
(Plan, Affordable [***70] Housing, p. 5-8).
[**742] One of the elements driving the housing affordability problem is the gap between what people of modest income and those at the top of the market can afford. Jackson Hole's recent growth has not been so much due to new year-round residents, but rather is from the very affluent who build second homes ranging from 5 to 12 times the size of most normal housing in the valley. It is impossible for middle income residents to compete in this market.
Exh. 3-C (page 28 of the Issue Paper on Affordable Housing) (emphasis added).
Maximum floor area ratio -- This strategy would limit the gross living area which could be built on a given lot. Usually such a requirement relates directly to community character objectives. Under certain land market conditions, however, it can tend to slow the upward spiral of land costs by clearly defining the amount of development permitted on a lot-by-lot basis. It is unlikely, however, that such limits will bring new dwelling units within the range that is affordable by residents of the community.
(Plan, Affordable Housing, p. 5-15) (emphasis added).
12. I am not aware of any violations of Section 2450 of the Land Development Regulations other than the violation of [***73] Section 2450 which is the subject matter of the above entitled matter. [Emphases in original; some footnotes deleted.]
Teton County's popularity as a gateway community and destination resort skyrocketed during the 1980's, bringing with it dramatic increases in population and development. The 1980's marked the second consecutive decade of above-average growth, and residents feared they were losing control over their future. Their quiet western community had mushroomed into a flourishing resort that threatened to leave residents' needs and values behind.
As the decade drew to a close, residents and community leaders of Teton County and the Town of Jackson recognized that the time to confront their concerns had come. Rapid growth was diminishing the small town values and western heritage cherished by so many. Housing had become so expensive and scarce that it was forcing some residents to leave the community. Development was beginning to disrupt open ranchlands and natural resources. Improvements in the valley's infrastructure--transportation, sanitary sewer, parking--lagged sharply behind population [**743] and visitation growth. Existing land development [***74] regulations were proving inadequate to deal with these pressures, and residents began to express the need for a system which would do a better job of managing the changes they were seeing in Teton County's character.
In 1989 and 1990, the Town and the County began independent but parallel informationgathering efforts to determine what residents envisioned for Teton County's future. The County initiated "small-area" meetings where planners met informally with residents of various areas of the county. Meanwhile, Town planners divided Jackson into seven neighborhood planning areas and conducted similar workshops of their own.
Citizens attending Teton County's Small Area Plan meetings and the Town's series of neighborhood meetings made it abundantly clear that they were not satisfied with the recent directions of the area's growth and development. Issues most often cited were increased traffic, commercial growth, and lack of affordable housing opportunities. They were articulated as issues of character: people felt their community was disappearing.
Both local governments recorded residents' comments with the intent of using that information to develop separate land use and development [***75] plans with implementing regulations. In considering what residents were telling them however, local officials realized that growth and development issues such as transportation, air and water quality, and wildlife habitat do not stop at jurisdictional boundaries. They saw that the character of Jackson was interdependent with that of Kelly, Moran[,] Wilson, and Alta. Clearly, a major cooperative planning effort was needed. Neither jurisdiction could hope to solve community-wide problems without the help and support of the other. What direction was growth taking? What would Jackson and Teton County look like at buildout under the regulations in effect at that time? Much of Teton County's ranchlands, with its pastures, hay meadows, and broad sweeping vistas, was zoned for development at one unit per three to six acres. Dividing a 1,000-acre ranch into three- to six-acre lots does not preserve rural character, and does not provide either affordable housing or open space.
Many residents felt the community was becoming out of balance, with resort and commercial development far outpacing the growth of employee units and other types of affordable housing. While "the market" was producing [***76] some affordable housing, it was not keeping up with the need. In the Town, affordable housing was often being built at the expense of established, mostly single-family neighborhoods which happened to be zoned MR-2 or MR-4, while existing affordable housing stock was continuing to be displaced by non-residential uses in Core Commercial and MR-4 zones.
The community and elected officials took action. Several community groups, state and federal agencies, consultants and residents contributed to a joint planning effort. Public forums were held to outline the most commonly voiced concerns. One such forum was the Successful Communities workshop, which drew more than 300 participants in March, 1990. During this workshop, participants identified Jackson Hole's natural and community assets as well as areas of concern, from which a vision statement was derived. Finally, specific actions to bring about the vision were identified, under the themes of (1) preservation of the high quality of the natural and built environment; (2) wildlife protection; (3) encourage economic and social diversity; (4) growth management; (5) preservation of Jackson Hole's quality of life; and (6) just compensation. [***77]
In response to the identified assets and concerns, a consulting team headed by Lane Kendig, Inc., was selected from a group of nationally recognized planners to produce a comprehensive plan and draft development regulations. During the information gathering or "Reconnaissance" phase of the planning process, the consultant team produced a series of five "Issues Papers" in which they evaluated economic development, natural resources, affordable housing, population and growth, and community character in Teton County. Public officials, local planning staffs, and the consultants met with the general public during a series of workshops to [**744] discuss the papers and possible strategies for addressing the issues which they raised.
Through the summer and early fall of 1991, hundreds of residents gathered and spoke at moderated, informal roundtable discussions at the Jackson Hole High School. They shared their concerns for Teton County's future, and told one another about personal likes and dislikes with respect to the Town's and County's development. Lane Kendig also gave the public some early thoughts on how their concerns might be addressed, and he personally led several question and answer [***78] sessions.
From the comments and discussions at the workshops and mediated roundtables through the Reconnaissance phase, a vision for Teton County's future began to emerge. Residents expressed a strong desire to retain a rural western character and a sense of true community. They wished to maintain a socially and economically diverse population and to not become a resort where only the wealthy can afford to reside. They were committed to preserving open space, affordable housing, and wildlife, and to avoid making the mistakes they perceived had been made by other resort communities.
The vision includes:
In addition, the Town of Jackson focused on local and neighborhood concerns:
Embracing these conflicts, the visioning provided an umbrella guideline that [***80] would structure the entire planning process. A plan needed to be formulated which would identify the critical elements that define the character of the Town of Jackson and Teton County, and that the plan would recommend how community character could not only be preserved but actually enhanced through positive change.
A critical link between the visioning and the articulation of goals, objectives and strategies to realize the vision is "Issues Mapping." As the term implies, issues mapping is a graphic and geographic depiction of community planning issues and opportunities, and the spatial relationships among them. The issues map provides a framework for understanding the issues analyzed in the chapters which follow [**745] this Community Vision. It also provides a guideline against which proposed land development applications and public investments can be measured.
The Community Issues Map for the Town of Jackson is both vision and direction for future growth and development. It indicates areas where residents and officials find the present character desirable, and therefore, want it preserved. In other areas, an auto urban or suburban character should be preserved; [***81] at the same time it is recognized that some enhancement is needed. In practical terms, this means that new development in these areas should contribute to the existing character and not be allowed to start a shift or trend toward another more intense character type. Much of East Jackson, Upper Cache Creek, and the Sage Addition area are recommended for enhancement.
The Issues Map illustrates areas with significant environmental constraints and natural resources within the Town which must be considered and preserved, to the extent possible, when development is proposed. There are steep slopes in north Jackson, west of Flat Creek, on the north side of Snow King Mountain, and along the east side of South Highway 89. Some of these areas are not suitable for building, and any development needs to be clustered on the most suitable areas of each site. Parts of the butte side slopes in north Jackson are crucial winter range for mule deer, so development should be limited to allow the animals continued use and movement through the area. Forested areas on Snow King Mountain are used extensively by moose and deer. Although not designated as crucial winter range, these areas should also receive [***82] some degree of protection. Jurisdictional wetlands along Flat Creek in the Karns Meadow and immediately north of High School Road are also designated for protection on the Issues Map. As the most prominent natural resource in all of Jackson, but one which has not been treated as the community amenity it could be, Flat Creek is also designated as a special restoration corridor. Details of the restoration plan for Flat Creek may be found in Chapter 4, Natural Resources.
Affordable housing nodes and other areas for higher density residential development are indicated, mainly in West Jackson where commercial services are available, transit is provided, and overall access service is plentiful. The Issues Map recognizes the distinction between general community commercial needs in the shopping areas along W. Broadway and lodging and visitor services which should be focused primarily on the Jackson core area. The Issues Map illustrates that the area in and around Snow King Resort will continue to be the major center for resort-type uses in Town.
The Community Issues Map also depicts such non-regulatory issues as urban design and transportation. It indicates that special treatments are needed [***83] for the Town's three major gateways: north and south Highway 89, and at Highway 22 entrance to Town. Through a properly designed combination of monument signage and landscaping, a favorable first impression of the community and a clear sense of arrival will be created, with the message that the traveler is leaving one type of character and entering a distinctly different type. The "transit nodes," which are major transfer points or other key facilities associated with the bus system, are also indicated. For this system to expand to meet community-wide service needs, a major terminal and park-and-ride facility is recommended for consideration at the intersection of Highways 89 and 22. The Map also designates major links of the pathway system, reflecting the importance given in the visioning process to the ability to travel about the Town and County on foot, by horseback, by cycling, or cross country skiing.
The Issues Map indicates the need for special design guides to preserve the unique pedestrian character of the Town Square. As well, the commercial areas along south Highway 89 are designated for design improvements to parking, access, internal circulation, signage and landscaping [***84] to enhance the existing character and mitigate the Highway's "strip commercial" appearance.
[**746] In Teton County, the major issues tend to be broader and were of necessity mapped at a much smaller scale. The County Issues Map primarily depicts three areas of concern. The first is "open space." These are lands on which ranching should continue, wildlife habitat preserved, and the visual qualities of scenic vistas protected.
Examples include the hay meadows of South Park, the Spring Gulch scenic area, ranchlands along the Teton Village road, Buffalo Valley and the western most entrance to Teton County from Alta. These lands also include the Snake, Hoback, Gros Ventre and Buffalo Fork river corridors and those hillsides and butte sides which are crucial winter range for ungulates. These areas should be kept free of development to the maximum extent possible to help preserve rural character, critical wildlife habitat and important image-setting scenic vistas and river corridors, and to encourage the continuation of ranching and other types of traditional agriculture as a vital part of the community's character. The County should encourage the preservation of the rural character, critical [***85] wildlife habitat and important image-setting scenic vistas and corridors, and encourage the continuation of ranching and other types of traditional agriculture as a vital part of the community character. Where possible, the County should be flexible with its development regulations as an encouragement to landowners to permanently protect these wildlife, scenic and agricultural areas. In addition, where non-regulatory options are available, these should be encouraged. For example, a land trust's resource analysis in preparation for a conservation easement, may be sufficient to replace the County's site analysis.
The second type of area identified on the County Issues Map are the "neighborhood conservation" areas. These are lands which are already subdivided, and which have been determined to generally constitute acceptable patterns of development within already established boundaries. These lands include the vast majority of the large-lot platted subdivisions in the County, as well as planned developments, such as Rafter J, Spring Creek Ranch, Boyles Hill (Indian Springs) and Teton Pines. In these areas development will be allowed to continue as it was originally approved, with very [***86] little (if any) change to be effected by the land development regulations adopted to implement this Plan.
The third type of area shown on the County Issues Map is how new development relates spatially to the community's overall vision. These are the areas seen as appropriate for future growth and include the Teton Village and Grand Targhee Resorts. This third type also includes new limited commercial areas near the Aspens and in Wilson and Hoback Junction, intended to meet the basic service needs of residents.
In addition, perhaps the most important areas for future development are the housing ""cluster targets." These are areas which, from the standpoint of access, ability to provide services and/or contiguity with existing development, are most appropriate for relatively high density housing. One such area is in the northwest part of South Park at the south side of High School Road across from Cottonwood Park. Smaller potential affordable housing nodes are designated in Wilson and Hoback Junction adjacent to existing communities. It is this clustering of development potential, with its required open space preservation, that allows rural character objectives, such as wildlife and [***87] scenic resource protection, to be achieved.
Like the Town map, the County Issues Map also reflects an increasing awareness of the need for alternatives to automobile transportation. Areas to be considered for new or expanded transit service are depicted, including Wilson and Hoback Junction. Major links in the proposed pathway system are also shown.
In order to provide the finishing touches to the visioning process and to better translate the community vision into plans and regulations, a vision statement was drafted, based on stated values of the community.
It is the vision of the citizens, planners and elected officials, who have all contributed to [**747] this plan, to guide and manage change and development to:
7 support and promote a diverse social and economic population that includes a resident work force;
7 preserve the traditions and character of the Rocky Mountain West and Wyoming, including ranching and through architectural design;
7 promote economic sustenance that does not depend on population growth;
7 set aside. for generations to come, scenic vistas and wildlife habitat;
7 maintain and enhance environmental quality, including air and water [***88] quality;
7 maintain outdoor recreation and adventure opportunities; and
7 offer a spectrum of housing types, especially for resident workers.
The vision also includes the intent that development on private lands in Teton County be compatible with surrounding public land values and uses, including Grand Teton National Park, Yellowstone National Park, and Bridger-Teton National Forest, because all towns, neighborhoods and resorts in Teton County are integral to the Greater Yellowstone Ecosystem.
Fortunately, Teton County residents enjoy common values upon which they can build a future. This planning effort sought a "common ground" among several points of view. There is widespread commitment for protection of Teton County's natural resources, outdoor recreational opportunities, sense of community and small-town feeling and social diversity.
The Comprehensive Plan for Teton County needs to acknowledge and protect the benefits of growth while adopting reasonable limits. In an effort to create a "best-choice" future for our community and to design a regulatory system that serves this purpose, the benefits of growth must be balanced with the benefits of growth management.
The guiding [***89] principles shown below have been articulated to reconcile the benefits of growth with the benefits of growth management:
The Plan chapters which follow provide the means to achieve the vision and guiding principles through a detailed analysis of issues, establishment of goals and objectives, consideration of strategies and selection of appropriate actions. However, these chapters do not represent the culmination or end-point of the process. The term "planning process" defines the on-going or cyclical nature of planning. While certain aspects of the planning program have been formulated to the point that they are ready for implementation, others require continuing monitoring and analysis before they too are ripened.
The most significant areas in which the planning process will continue following adoption of this Plan are:
This plan is intended to
guide the inhabitants of Teton County, Wyoming, into the 21st century in a
manner that honors Jackson Hole and Alta's heritage and setting, and endows
future generations. The Plan also seeks to build on conditions existing in
1993.