Board of County Commissioners v. Crow

2007 WY 177, 170 P.3d 117, 2007 Wyo. LEXIS 189, 2007 WL 3244994
CourtWyoming Supreme Court
DecidedNovember 5, 2007
DocketNo. S-07-0031
StatusPublished
Cited by3 cases

This text of 2007 WY 177 (Board of County Commissioners v. Crow) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Board of County Commissioners v. Crow, 2007 WY 177, 170 P.3d 117, 2007 Wyo. LEXIS 189, 2007 WL 3244994 (Wyo. 2007).

Opinion

HILL, Justice.

[T1] The Board of County Commissioners of Teton County (Teton County) challenges an order of the district court that declined to order the abatement (removal) of excessive square footage added to a home built by Thomas and Carol-Ann Crow (Crows). The maximum square footage allowed by the Teton County Land Development Regulations (LDRs) is 8,000 square feet of habitable space. The home in question was originally designed as an 8,000 square foot home, but a contingency set of plans provided for renovation of that design so as to enlarge it to 11,000 square feet, without changing the "footprint" of the home. Immediately following the issuance of a certificate of occupancy for the 8,000 square foot home, the Crows enlarged the home to 11,-000 square feet by converting porches to habitable space, and by flooring in rooms with cathedral ceilings so as to provide more habitable space.

[12] In Board of County Commissioners v. Crow, 2003 WY 40, 65 P.3d 720 (Wyo.2003), we reversed an order of the district court that found the LDRs were unconstitutional as applied to the Crows. Our conclusion was that the LDRs did not violate substantive due process either facially or as applied, and that Teton County had the statutory authority to enact the LDRs. We remanded the matter back to the district court for reconsideration in light of that decision.

[138] In Board of County Commissioners v. Crow, 2006 WY 45, 131 P.3d 988 (Wyo.2006), we reversed an order of the district court which imposed fines that appeared to be inconsistent with the penalty provisions of the statutes the Crows violated and which did not provide for abatement of the 8,000 square feet of habitable space that the Crows added to the house in violation of the LDRs, a penalty also contemplated by the governing statute, in addition to the fines. We remanded the case to the district court to reconsider the fine imposed, as well as to more meaningfully address the issue of abatement, in light of the prevailing authority which we deemed pertinent to the answer to those questions.

[T4] On December 18, 2006, the district court issued an order which we will set out in detail below. Teton County appeals yet again, claiming that the district court erred in declining to order abatement of the offending 3,000 square feet that has constituted a continuous violation of the LDRs since it was constructed. We will affirm that order.

ISSUES

[15] Teton County raises these issues:

1. Is the district court's "perception and finding" that confusion, disagreement and lack of clarity as to how to interpret and enforce Section 2450 "undoubtedly influenced by the Crow's decision to embark and continue on their ill advised course," clearly erroneous?
2. Is the district court's "perception and finding" that the County's previous enforcement efforts "undoubtedly influenced the Crows' decision to embark and continue on their ill advised course," clearly erroneous?
3. Did the district court abuse its limited discretion in denying the requested abatement, under the totality of the circumstances presented, thereby allowing the Crows to purchase a variance to which they are not otherwise legally or equitably entitled?

In response, the Crows query:

I. Should the County's appeal be dismissed as nothing more than a reiteration of its last appeal?
II. Were the district court's conclusions that abatement was not necessary in this case clearly erroneous, an abuse of discretion, or arbitrary and capricious?

Although it is not included in their statement of the issues, the Crows state that the court should find "that the County's appeal is frivolous and award Crows their costs on appeal. 1

[119]*119[1 6] -In its reply brief, Teton County asks that we address these additional arguments:

1. Assuming, arguendo, that there is a factual basis in the record for the district court's perception and finding that confusion, disagreement and lack of clarity as to how to interpret and enforce Section 2450 "undoubtedly influenced the Crows' decision to embark and continue on their ill-advised course," as urged by the Crows, the Crows' argument still fails because any confusion, disagreement or lack of clarity that the Crows or their architects may have had prior to trial was resolved (1) around the same time that the Crows began planning to intentionally violate Seetion 2450, and (2) long before the Crows began actual construction of the unpermit-ted additions to their home.
2. Assuming, arguendo, that there is a factual basis in the record for the district court's perception and finding that the County's previous enforcement efforts "undoubtedly influenced the Crows' decision to embark and continue on their ill-advised course," as urged by the Crows, the Crows' argument still fails because the County's "previous enforcement efforts" (1) occurred after the Crows embarked on their ill-advised course; (2) concerned relatively minor violations of Section 2450; and (3) do not justify the Crows' intention[al] violation of Section 2450.

FACTS AND PROCEEDINGS

[17] In our most recent consideration of this case, we provided this general guidance to the district court in order to explain the purpose of the remand:

The district court reached these conclusions with respect to abatement:
105. Abatement of the violation therefore requires serious consideration from the Court. The conduct of the Crows and Overton was deliberate, premeditated, and egregious. However, the Court believes the interests of the citizens of Teton County are adequately addressed by the fines imposed herein.
106. The Court's leniency in this regard should not, however, be misconstrued. The Court has the authority to order abatement as a remedy for violations of Teton County's LDR's and these parties and future litigants are on notice that the remedy of abatement is likely for future violations brought to this Court's attention.
The district court was correct insofar as it determined that it had the authority to order abatement. However, based on the authority recited above, we agree that Te-ton County, the zoning and planning authority, need not make a showing of irreparable injury. The violation of the LDR constitutes a basis for the imposition of an abatement order. The district court is required to make specific findings balane-ing the equities. Only then may the district court ascertain if its equitable power to deny an injunction, or any other en-foreement mechanism, is appropriate under the totality of the circumstances presented.
Fines
As noted above, the district court imposed a fine on Crow for 242 days in connection with Crow's violation of the habitable space regulation. It is evident that Crow's violation of that regulation continued for a considerably longer time than 242 days, although we decline to make a precise calculation in that regard in disposing of this appeal. It is also readily evident to this Court that Wyo. Stat. Ann. §§ 18-5-204 and 18-5-206 make imposition of a fine mandatory for each day a violation continues. See Merrill v. Jansma, 2004 WY 26, ¶ 42, 86 P.3d 270, 288 (Wyo.2004); also see 2 E.C. Yokley, supra, § 15-2 at 15-8; and Wright v. City of Guthrie, 150 Okla. 171, 1 P.2d 162, 163-64 (1931).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
2007 WY 177, 170 P.3d 117, 2007 Wyo. LEXIS 189, 2007 WL 3244994, Counsel Stack Legal Research, https://law.counselstack.com/opinion/board-of-county-commissioners-v-crow-wyo-2007.