Judge rules in favor of HSC Commissioners

District Court Judge Bill Simpson ruled on the Tipi Retreat, LLC, with Michele and Michael Stevens v. the Hot Springs County Board of County Commissioners on November 8. The order is granting the defendant’s motion for partial summary judgment.

Earlier this year, The Tipi Retreat LLC, Michele and Michael Stevens, plaintiffs, through counsel Hathaway & Kunz LLP, filed a Complaint for Declaratory Judgment, Injunctive Relief, and Petition for Judicial Review against defendant, Hot Springs County Board of County Commissioners, a Wyoming governmental entity. The suit was filed with the Hot Springs County Fifth Judicial District Court on January 19.

The Stevens’ suit was challenging the decision made by the county commissioners to not approve a request for a land use change from agricultural to commercial. The plaintiffs claim infringement upon their constitutionally protected property rights. Michael Stevens had originally applied for a bed-and-breakfast permit. He was later advised that the Planning Commission would require a land use change from agriculture to commercial for the Tipi Retreat development.

According to the recent partial summary judgment document, “The Court finds Hot Springs County’s Land Use Plan and Development Regulations properly establish enforceable zoning regulations with identifiable standards to control and regulate land use development, including the Plaintiff’s land uses. Further, neither the local land use plan statute, Wyoming Stat. 9-8-301, nor the statute authorizing counties to adopt zoning regulations, Wyoming Stat. 18-5-201, requires that zoning regulations be adopted separately from a land use plan. The zoning regulations, or development regulations, in this case, are not invalid because they appear in the same document as the County’s visionary goals. Finally, because Hot Springs County had legally existing zoning regulations in effect when the Plaintiffs began their development project, the County did not violate their constitutional due process rights when it denied their development permit.”

Judge Simpson’s October 2 decision letter is now public record and gives his explanation of how he came to his ruling. Part of the letter states, “Tipi Retreat asserts that the County does not have enforceable zoning regulations necessary to review and deny development activity. The County asserts that it does have such regulations.”

The decision letter also states, “This Introduction clearly sets forth the County’s attempt to create both a land use plan and development regulations under W.S. 18-5-201. The Court will review the document in detail.”

Simpson then reviews a series of court cases that litigated land use plans and zoning regulations. He also defines what are the different types of land use categories. Simpson continued and said, “Has the County adopted enforceable zoning regulations… If the development regulations properly exist, then they may be enforced. The County would not have exceeded its statutory authority in reviewing Tipi Retreat’s development application under the development regulations.”

“In this case, for the purposes of the County’s partial motion for summary judgment, there are no material disputed facts. Tipi Retreat established development activity without a permit from the County. Tipi Retreat ultimately applied for a permit and the County denied the permit. Tipi Retreat has other factual issues at stake in its petition for review.”

“The County, within its document, uses the term ‘Land Use Plan’ to refer to both planning provisions and zoning and enforcement elements. While not ideal, the planning provisions are separable from the zoning and enforcement provisions. The Court will find that the County has established enforceable development regulations, or zoning regulations, under its 2020 Land Use Plan and Development Regulations. Whether titled zoning regulations or development regulations, the developing restrictions in the document meet the definition of ‘zoning’ under Wyoming statute: a form of regulatory control granted to local governments which may be used to guide and to develop specific allowable land use.”

Also, according to the decision letter, Judge Simpson reviewed additional arguments. One is, “Are the County’s development regulations invalid because they appear in the same document as the local land use plan?” and a “Due Process Claim.” 

“Tipi Retreat argues that the land use plan must be adopted first, followed by the enactment of zoning regulations and that they cannot be combined in a single document.” Also, “Tipi Retreat argues that because the County does not have enforceable zoning regulations, the County’s restriction of its development violates their constitutional due process rights.”

Regarding Remedy, Simpson said, “The County asks the Court to rule in its favor on partial summary judgment for trial on the remaining issues of fines Tipi Retreat may owe as a result of being in violation of the Land Use Plan. However, factual issues remain in the context of Tipi Retreat’s Petition for Review. In that context, Tipi Retreat has alleged that the County’s decision is arbitrary and capricious, not supported by substantial evidence, and that the decision did not follow the County’s own rules and procedures, among other things. Those questions must be answered before the Court can move on to determine whether or not fines may be applicable.”

If Judge Simpson ultimately rules the case in favor of the Hot Springs County Board of County Commissioners, there could be retroactive penalty fines for the Plaintiff. These penalties may include $750 per day, per violation. The Tipi Retreat has approximately 12 tipis, each one might be considered a violation. The period of time for the penalties may start when the Commissioners denied Stevens’ application for a land use change on December 21, 2021.

The court case and the final ruling is pending and may not be held until sometime in 2023.