Agenda - Planning Commission - 10/09/2014

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August 25, 2014 I Volume 8 I Issue 16 Zoning Bulletin RST appealed. The district court affirmed the Board's order. RST again appealed. On appeal, RST and the County disputed whether Wyo. Stat. Ann. § 18-5-207 prohibited or granted the County authority to regulate the expansion of a grandfathered nonconforming land use, such as RST's gravel operation. Section 18-5-207 provides as follows: A zoning resolution enacted under the provisions of W.S. 18-5-201 through 18-5- 206 shall not prohibit the continuance of the use of any land, building or structure for the purpose for which the land, building or structure is used at the time the res- olution is adopted and it is not necessary to secure any certificate permitting such continuance. However the alteration or addition to any existing building or structure for the purpose of effecting any change in use may be regulated or prohibited by zoning resolution. If a nonconforming use is discontinued any future use of such land, building or structure shall be in conformity with the provisions of the resolution regulating uses in the area in which the land, building or structure is located. RST and the County agreed that the first sentence of § 18-5-207 permitted the continuance of preexisting land uses that predate the adoption of a legal zoning resolution —known as a grandfather exception. However, they dis- agreed on whether the second sentence of § 18-5-207 gave counties zoning authority over certain nonconforming changes in the use of land, and thus, in this case, whether the County could regulate expansion of RST's grandfathered gravel operations. DECISION: Judgment of district court reversed, and matter remanded. The Supreme Court of Wyoming held that while § 18-5-207 gave counties zoning authority to regulate certain nonconforming uses (e.g., buildings and structures) by creating a permissive exception to the grandfather exception, it was ambiguous as to the extent of its protection of nonconforming land uses. To resolve that ambiguity, the court adopted, as a matter of first impression (i.e., the first time addressing the issue), a three -prong test of the doctrine of diminishing assets. The court explained that a gravel operation utilizes the natural resources that comprise the land itself, and that therefore, in such a case, the land is a diminishing asset. The court further explained that diminishing -asset enterprises (e.g., those that involve the removal of natural products from the earth, including gravel operations) "use" all of the land contained in a particu- lar asset, and "as a practical matter, such use must begin at one spot and continue from there to the boundary of the land." Accordingly, application of the general rule that a nonconforming use may not be extended to land not so used prior to enactment of a restrictive zoning ordinance may work a hardship where the use involves removal of natural products from the earth, said the court. Therefore, the court held that a land owner would be allowed to extend his or her nonconforming use of the land involving a diminishing asset under § 18-5-207, if the land owner could prove each prong of the following three - prong test: First, [the land owner] must prove that excavation activities were actively being pursued when the [Ordinance] became effective; second, [the land owner] must prove that the area that he desires to excavate was clearly intended to be excavated, 10 ©2014 Thomson Reuters