Schoeller v. Board of County Commissioners

RAPER, Justice,

dissenting.

I dissent.

The plaintiff county, in my opinion, had authority under its general powers1 to pass *880a resolution holding development in status quo as nearly as practicable while the formal comprehensive plan contemplated by § 18-289.3, W.S.1957, Cum.Supp.,2 was being formulated and it was not necessary to conform to the notice requirements of § 18-289.4, W.S.1957, Cum.Supp. Since the county was operating within an authorized power, it has implied and inherent power to do those things both necessary and proper to directly effect the functions by the legislature created. Nation v. State ex rel. Fire Fighters Local 279, IAFF, Wyo.1974, 518 P.2d 931; Gonzales v. Personal Collection Service, Wyo.1972, 494 P.2d 201 (involved a county hospital.) I conclude that the resolution exercised a power incident to the granted power to zone.

That procedure has acceptance. In that a dissent settles no issue and is not authoritative precedent,3 I will only refer to the Annotation, “Validity and Effect of ‘Interim’ Zoning Ordinance,” 30 A.L.R.3d 1196, 1205, where the author summarizes:

“Throughout this annotation, in a variety . of contexts, certain related factors seem to have played an influential role in the courts’ decisions. One of these is the timing or chronological sequence of events. More specifically, the courts have often stressed the temporal relationship between the steps taken by the municipality toward the enactment of a permanent zoning ordinance and the steps taken by the individual landowner toward the acquisition of vested rights (a second factor of general importance) in a particular use of his property. Generally speaking, it appears that the further along the municipality has progressed when the landowner applies for a building permit or makes expenditures, the more likely it is that the interim ordinance (or the refusal or revocation of the permit) will be upheld. This seems particularly true where one of these steps taken by the municipality constitutes notice to the landowner of the pendency of a permanent zoning ordinance. Notice, however, is only one aspect of a larger factor — whether the municipality and the individual landowner acted in good or bad faith in seeking their particular interests. As to the municipality, good faith seems to mean that its officials honestly intend to enact a permanent zoning ordinance as soon as any necessary studies are completed (as contrasted with harassment or intentional delays directed at thwarting the plans of a particular landowner). Similarly, the landowner appears to act in good faith if he proceeds only in reliance on a lawfully issued permit and without knowledge or notice that his proposed use will be inconsistent with pending zoning plans.
“Finally, it may be significant that interim zoning ordinances containing specific time limits on their effective life have usually been held valid and that the absence of a specific limit on duration has sometimes contributed to the invalidity of interim zoning ordinances.”

Those elements favorable to the position of the county and zoning commission were present.

The stop-gap resolution was by no means the “comprehensive” plan contemplated by § 18-289.3. We cannot isolate § 18-289.4 *881from the whole act dealing with county zoning and hold that every time some incidental action is taken relating to zoning, there must be notice and hearing. Statutes must be read in pari materia. Stringer v. Board of County Commissioners of Big Horn County, Wyo.1960, 347 P.2d 197. Statutes must be read in a reasonable manner. In re Romer, Wyo.1968, 436 P.2d 956. We cannot disassociate the general from the specific powers of the county commissioners. County commissioners must be given some latitude.

As said in Nottingham Village, Inc. v. Baltimore County, 1972, 266 Md. 339, 292 A.2d 680, 688:

“ * * * A comprehensive plan is something more than a detailed zoning map, Hewitt v. County Commissioners of Baltimore County, supra, 220 Md. [48] at 58, 151 A.2d 144, and should apply to a substantial area, be the product of long study, and control land use consistent with the public interest, Trustees of McDonogh Educational Fund & Institute v. Baltimore County, 221 Md. 550, 561, 158 A.2d 637 (1960). In other words, an important characteristic of a comprehensive plan is that it be well thought out and give consideration to the common needs of the particular area, Huff v. Board of Zoning Appeals, 214 Md. 48, 58-59, 133 A.2d 83 (1957); Anne Arundel County v. Ward, 186 Md. 330,340,46 A.2d 684 (1946). A comprehensive plan is unlikely to have tangible physical existence save as it appears in the zoning ordinance itself, Angermeier v. Sea Girt, 27 N.J. 298, 142 A.2d 624, 630 (1958), and the concept of comprehensiveness may be found in the fact that it zones all, or substantially all, of a political subdivision, that it regulates all uses — good, bad and indifferent, or that it covers all of the usual factors of land utilization: height, area and use, * * *

The freeze was no plan at all but only an effort to hold back uncontrolled development. The agency charged with the responsibility of preparing a well-thought-out plan fitting the particular community concerned must be given some rein and not be forced to come up with some half-baked plan just to meet some mythical deadline reached arbitrarily by this court on the basis of its own ideas and not the evidence and not the judgment of the agency having the responsibility and not the determination of a trial judge a lot closer to the situation than we are. I wonder since when we have become qualified as experts on how long it takes to prepare a comprehensive zoning plan and resolution for Park County?

The hard-nosed position taken by the majority is in conflict with the legislative purpose of zoning. It was wisely said in Downham v. City Council of Alexandria, D.C.E.D. Va.1932, 58 F.2d 784:

“Furthermore, it seems to the court that it would be a rather strict application of the law to hold that a city, pending the necessary preliminaries and hearings incident to proper decisions upon the adoption and the terms of a zoning ordinance, cannot, in the interim take reasonable measures temporarily to protect the public interest and welfare until an ordinance is finally adopted. Otherwise, any movement by the governing body of a city to zone would, no doubt, frequently precipitate a race of diligence between property owners and the adoption later of the zoning ordinance would in many instances be without effect to protect residential communities — like locking the stable after the horse is stolen.”

It is fundamental that a statute be construed in the light of the objects and purposes to be accomplished. Wyoming State Treasurer v. City of Casper, Wyo.1976, 551 P.2d 687.

I gather from the sense of the scolding majority that the board of county commissioners and the zoning commission were dragging their feet in enacting a comprehensive, permanent zoning resolution. That is contrary to the finding of the trial judge and contrary to any evidence in the case. The trial judge entered a general finding in favor of the county. In the absence of special findings, a judgment carries with it every finding of fact supported *882by the evidence and will be sustained on any legal ground appearing in the record. Peters Grazing Association v. Legerski, Wyo.1976, 544 P.2d 449, reh. den. 546 P.2d 189. The defendant presented no evidence of the unreasonableness of the delay in formulating a comprehensive plan.

The legislature piled a lot of duties on this unpaid zoning commission made up of dedicated citizens. It was loaded down first with the duty of collaborating with the cities of Cody and Powell in zoning the immediate areas surrounding those municipalities. That was time-consuming. Then by § 18-289.1, et seq., W.S.1957, as amended, § 18-289.16, in particular, the county zoning commission was given the chore of evaluating county subdivision permits. During the four years preceding the hearing, the commission was called upon to investigate and recommend to the board of county commissioners action on fifty-two county subdivisions.

The commission has not been idle nor piddling along. While solving one problem after another with its multitude of duties, it has held many hearings in the development of a comprehensive county zoning plan, including public meetings at Cody, Powell and Meteetse. The commission in developing a zoning plan has had to deal with a conglomeration of federal agencies since 60 percent of the land in Park County is owned by the United States. Intermingled with the recreation attractions of the county are the predominant industries of oil and agriculture.

A comprehensive plan was prepared by the commission and was submitted to the board of county commissioners in July, 1975, but disapproved by that body. Its inadequacy was acknowledged by the commission.4 There was emergency after emergency, intensified by the complexity of the problem and the hindrances under which the commission was operating. It had no money with which to operate until 1975, when the State made a grant of $10,-000.00 to assist and the county scraped up another $35,000.00 for professional help.

There is no evidence of bad faith or lack of diligence on the part of the commission or the board of county commissioners. There is evidence of bad faith by the defendant, which the majority is approving. The defendant misrepresented to the commission. He acknowledged the authority of the commission and applied to it for permission to move the building onto the land for “storage” purposes. The commission granted that permission; the defendant promptly opened it as a store, which, after hearing, had been denied.

By applying for, receiving and accepting a permit to move the building onto the land for “storage,” under the resolution, the defendant is precluded from questioning the validity of the ordinance. It is a well-known and widely-applied rule that one voluntarily proceeding under a statute or ordinance, claiming benefits thereby conferred, cannot question its validity to avoid its burden. St. Louis Public Service Company v. City of St. Louis, Mo.1957, 302 S.W.2d 875, 879; James H. Dailey’s Estate v. Lincoln, 1921, 107 Neb. 151, 185 N.W. 332. There is and there can be no legal principle which will place a premium on deliberate violation of law and allow the violator to profit from his own wrong. Wilkins v. City of San Bernardino, 1946, 29 Cal.2d 332, 175 P.2d 542. The law can hardly in good conscience honor deceit.

Finally, the defendant had his remedy of appeal under the Administrative Procedure Act, § 9-276.32, W.S.1957, Cum.Supp. He was advised of that right. I realize that if the commissioners and board were acting in excess of their authority, passing up the prescribed administrative procedures, is not a matter of concern. Pan American Petroleum Corporation v. Pierson, 10 Cir. 1960, 284 F.2d 649, 656, cert. den. Pierson v. Pan American Petroleum Corporation, 366 U.S. 936, 81 S.Ct. 1661, 6 L.Ed.2d 848. However, as explained, I see no acting in excess of *883authority so the defendant is precluded from in this proceeding collaterally attacking the action of the commission and the board. He has failed to exhaust his administrative remedies. When the defendant neglected to appeal from the action of the commission of the board in denying his application to open a store, he was in the same position as if he filed a late notice of appeal. The question was settled. No one is entitled to judicial relief until the prescribed administrative remedy has been exhausted. City of Cheyenne v. Sims, Wyo.1974, 521 P.2d 1347. The prescribed remedy was appealed from the administrative ruling through the procedure specified by the Administrative Procedure Act. The county and commission had a right to rely on the final decision of the administrative agency.

I am even concerned about the fact that no objection to the denial of the defendant’s application for a permit to open a store was ever made to the agency on the ground that it was operating under an invalid resolution. While dealing with review from administrative agency actions, 3 Davis, Administrative Law Treatise, § 20.06, pp. 96-97, observes that:

“Holdings of state courts generally refuse to consider questions on judicial review that have not been urged before the agency. The opinions usually rest upon the analogy to the relation between appellate and trial court, and seldom cite federal cases. State statutes often provide that no objection not raised may be considered by the reviewing court in absence of extraordinary circumstances. Only occasional cases allow reviewing courts to consider issues not presented to the agency.”

Administrative agencies, such as this one here, are entitled to be treated with some decency. As said in United States v. L. A. Tucker Truck Lines, Inc., 1952, 344 U.S. 33, 73 S.Ct. 67, 97 L.Ed. 54:

“ * * * Simple fairness to those who are engaged in the tasks of administration, and to litigants, requires as a general rule that courts should not topple over administrative decisions unless the administrative body not only has erred but has erred against objection made at the time appropriate under its practice.”

Courts must temper their decisions with reason. Where is the county left with the many other actions (at least 100) the commission took under authority of the resolutions? Are they void? It is easy to say they will have to be considered one at a time in some other appropriate proceedings. The holding of the majority is nothing but unsettling, leaving the county, the zoning commission and the public holding the bag.

I would have affirmed the district court.

. Section 18 — 48(4), W.S.1957, provides that a county is empowered “To make all contracts and do all other acts in relation to the property and concerns of the county necessary to the *880exercise of its corporate or administrative powers;”

. Section 18-289.3 is as follows:

“The planning and zoning commission may prepare a comprehensive plan including zoning and from time to time amendments thereto for the purpose of promoting the public health, safety, morals and general welfare of the unincorporated areas of the county, and certify the plan to the board of county commissioners. Before so certifying its plan, or amendments thereto, to the board, the commission shall hold at least one public hearing. Notice of the time and place of hearing shall be given by one publication in a newspaper of general circulation in the county at least thirty (30) days before the date of such hearing. Any person shall have the right to petition the planning and zoning commission for the amendment of any zoning plan adopted under the provisions of this act [§§ 18-289.1 to 18-289.9].”

. Woodward v. Haney, Wyo. 1977, 564 P.2d 844.

. I gather from the evidence that it was a form adapted from a more urban community and not tailored to the unusual aspects of Park County, quickly conceived to get something on the books; the problem with rushing a project only to get it done.