Dear editor:
The Wyoming federal court’s decision to reverse the Park County Board of County Commissioners is a welcome check on a county government that often thinks that a person’s …
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Dear editor:
The Wyoming federal court’s decision to reverse the Park County Board of County Commissioners is a welcome check on a county government that often thinks that a person’s use of property ought to be subject to the pre-approval of neighbors under the vague standard of not being “in harmony with surrounding land uses.”
It’s no accident that many uses of property are now subject to “special use permitting,” or conditional approval, in Park County. Such unspeakable standards vest government officials with an almost unfettered discretion to deny, approve or approve with conditions a wide range of normal and inoffensive land uses.
Whereas historically many such uses of property would have been simply allowed as of right — subject to a neighbor’s right to sue and enjoin a neighbor for uses causing offensive odors, loud noise, dust, etc. — the transformation of the right to use property into a benefit to be bestowed by the government has subjected property users and business owners to an unpredictable and expensive game of hearings, re-hearings and appeals.
It’s an unfortunate part of the trend of our society away from one of freedom-loving risk takers toward one of endless “mother, may I” requests with the government.
The present case is a great example: Horizon Tower sought to fill a gap in cell service that wireless providers identified in the Wapiti Valley. The company only looked at the properties which county zoning had previously identified as suitable for utility infrastructure. The company further respected contractual agreements among neighbors — covenants — that disallowed commercial uses by avoiding such properties. The company heeded dubious concerns that its slender cell tower would destroy views in a valley which is otherwise booming with residential development by locating it as far from the road as practicable. And of course, the company had to locate a willing property owner. This left the company with the sole property available under such criteria; its selected site.
But county officials disapproved Horizon’s application for a special use permit because the cell tower would supposedly be “unharmonious” with surrounding land uses. The federal court flatly rejected this finding, holding that the board’s decision was not supported by evidence. It’s rare for judges to overturn local zoning boards on such a deferential standard of review, but here we are.
County officials should take heed: A land use is not “unharmonious” with surrounding land uses because a vocal minority (or majority) of surrounding landowners disapprove of it or merely because a conclusory statement to this effect is reiterated in the board’s written findings.
To be “unharmonious,” the board should be able to explain how the proposed land use, if allowed, would actually interfere with or prevent surrounding land uses from occurring. Of course, regarding Horizon Tower’s permit, this was a nearly impossible thing to do in a nation covered by telecommunications towers that operate mostly unnoticed alongside residential, commercial and rural property uses.
“Harmony with surrounding land uses” is not a freewheeling invitation for the board to decide what economic uses of property should be disallowed or allowed based on its whims or the whimpers of neighbors.
The county has filed a notice of appeal, in apparent hopes the Tenth Circuit Court of Appeals in Denver will find its decision less baseless than the trial court. This is unfortunately looking like a further waste of taxpayer money.
Austin Waisanen
Cody