City of Evanston v. Griffith

THOMAS, Chief Justice,

dissenting, with whom ROONEY, Justice, joins.

Reluctantly, I must dissent from the disposition of this case according to the majority opinion. I have concluded that what undoubtedly must be a popular result involves the institution of bad policy. The only way to avoid that unfortunate result that I am able to discern is to uphold the position of the state auditor and state treasurer.

Because of the perceived inequity of the circumstances insofar as local government is concerned, the following quotation of the findings of fact by the Industrial Siting Council (hereinafter Council in accordance with § 85 — 12—102(a)(ii), W.S.1977) is pertinent:

“11. e. The Council finds that the City of Evanston agreed with Amoco as follows:
“(1) There are no currently identified unmet needs related to the Anschutz Ranch East in Evanston;
“(2) There may be future needs related to Anschutz Ranch East in Evanston;
“(3) There are current needs related to population growth and demographic change in Evanston that have not been resolved. Specifically the following have been identified: (a) water development, (b) fire department satellite facility and equipment, (c) computer management system, (d) water, sewer, and transportation planning, (e) development of undeveloped park lands, (f) storm water master plan implementation, (g) redevelopment and implementation of urban renewal plan, (h) expansion of city hall, (i) completion of implementation of management system;
“(4) The City of Evanston is not at this time, other than through Amoco’s participation in the OIA and the sales and use tax paid to the State for impact assist-ance since August, 1981, asking for any assistance from the ISC as a result of the Anschutz Ranch East permit application.”

This agreement apparently concedes no impact prior to the hearing held in December of 1983.

While I agree that there does appear to be a parallel legislative purpose with respect to the impact assistance payments made from sales and use tax collected and with respect to the authority of the Council to require impact assistance from the developer of an industrial facility, I do note that in this instance the City of Evanston agreed with the developer that there had, as yet, been no impact in fact. The City did not request impact assistance directly from Amoco for prior impact. As the majority concedes, developers can be required to pay impact funds to the communities. Consequently, the claims of the City of Evanston for retroactive impact assistance payments under the tax portion of the statute appear to be designed to achieve a windfall for the City of Evanston rather than to compensate it for any otherwise unmet prior need.

I have no difficulty in concluding that the statutory language in this instance is clear *1388and unequivocal. It requires a person to commence to construct an industrial facility under a permit issued pursuant to statute. Amoco did not commence to construct an industrial facility under a permit issued pursuant to statute on August 7, 1981. It is clear from the record that the permit was issued March 12, 1984, and I am satisfied that for our purposes that was the date on which Amoco commenced to construct an industrial facility under a permit. In § 35 — 12—102(a)(viii), W.S.1977, as amended (1985 Cum.Supp.), the following definition appears:

“ ‘Commence to construct’ means:
“(a) Any clearing of land, excavation, construction or other action which would affect the environment of the site of any facility, * *

Construction subsequent to March 12, 1984, indeed could affect the environment of the site of this facility and consequently would meet the statutory definition of commence to construct although a permit application at that late date certainly would justify the invocation of the statutory penalties found in § 35-12-119, W.S.1977.

It is provided in § 35-12-119, W.S.1977 that whenever the state office of industrial siting administration (hereinafter Office in accordance with § 35 — 12—102(a)(i), W.S. 1977) determines that a person, as defined in the statute, is violating any of the provisions of this section, it shall refer the matter to the attorney general for further action. In this instance that mandatory provision of the statute apparently was not followed, and it would appear that the Office and the Council pursued a settlement of the matter without involving the attorney general. The only purpose I can discern for the retrospective action in this instance is to inhibit the imposition of the fines and penalties provided in § 35-12-119, W.S.1977, and perhaps to preserve the impact assistance payments for the benefit of the City of Evanston and others.

The majority of the court approves the retrospective action by the Council in the issuance of a permit. My reading of the Industrial Development Information Siting Act, §§ 35-12-101, et seq., W.S.1977, as amended, leads me to the conclusion that the legislature intended prospective action by the Council. The purpose and intent of this act is to require the study and consideration of certain statutory topics before, not after, the industrial facility is commenced. For example, § 35-12-114(c), allowing the Council to change the location, and § 35 — 12—108(a)(iii), requiring the applicant to estimate the commencement date, both contemplate that construction will begin after the permit is issued.

This tacit approval of retrospective action by the Office and Council is not sound administrative law.

“The general rule is that only those powers expressly conferred by the legislature are granted to an administrative agency. McNeil v. Park County School District No. 1, Wyo., 635 P.2d at 818 (1981); Tri-County Electric Association, Inc. v. City of Gillette, Wyo., 525 P.2d 3 (1974); Bruegman v. Johnson Ranches Inc., Wyo., 520 P.2d 489 (1974).” Brasel & Sims Construction Co., Inc. v. State Highway Commission of Wyoming, Wyo., 655 P.2d 265, 267 (1983).

The majority disposition in this case not only supplies the authority to act retrospectively which is not explicitly afforded by statute to the Council, but it seems to approve action by the Office and the Council which the statute specifically ascribes to the office of the attorney general. The approval by this court of the retrospective action by the Council in this instance essentially permits a waiver of the statutory penalties by the Council and the Office, when those penalties and other remedies obviously are to be pursued and waived, if they are to be waived, by other state or county officials.

My main difficulty with the majority position is that it adopts a legal fiction or perhaps more precisely a fiction of law structured by the Council. Black’s Law Dictionary (5th ed.1979) teaches that a legal fiction is an:

“Assumption of fact made by court as basis for deciding a legal question. A situation contrived by the law to permit a court to dispose of a matter, though it *1389need not be created improperly; e.g. fiction of lost grant as basis for title by adverse possession.” Id. at p. 804.

The same source defines a fiction of law as:

“An assumption or supposition of law that something which is or may be false is true, or that a state of facts exists which has never really taken place. An assumption, for purposes of justice, of a fact that does not or may not exist. A rule of law which assumes as true, and will not allow to be disproved, something which is false, but not impossible. Ryan v. Motor Credit Co., 30 N.J.Eq. 531, 23 A.2d 607, 621.
“These assumptions are of an innocent or even beneficial character, and are made for the advancement of the ends of justice. They secure this end chiefly by the extension of procedure from cases to which it is applicable to other cases to which it is not strictly applicable, the ground of inapplicability being some difference of an immaterial character.” Id. at p. 562, 23 A.2d 607.

I see the invocation of the legal fiction that the commencement of the construction of the industrial facility involved in this case was under a permit issued pursuant to the statute not as innocent or beneficial (except to the appellants) but fraught with peril in terms of the legislative intent relating to the proper functioning of the statutory scheme.

I find the statutory language in this instance to be clear. It is clear from the record that in the absence of the invocation of a fiction of law, the statutory requirements were not met until March 12, 1984. I find it to be bad policy to encourage retrospective action by the Council. That encouragement can have only the effect of encouraging those who are developing industrial facilities to fail to comply with the statute and wait and see what happens. What happened in this case involves a usurpation by the Office and the Council of statutory prerogatives assigned to other officials. All of these effects, although concededly necessary to a popular and, some would claim equitable, result in this case are contrary to the legislative intent as I perceive it. I would uphold and confirm the position of the state auditor and state treasurer to the end that these unhappy policy effects would not receive the approval of this court.