V-1 Oil Co. v. City of Rock Springs
Annotate this Case
V-1 Oil Co. v. City of Rock Springs
1991 WY 160
823 P.2d 1176
Case Number: 90-195
Decided: 12/12/1991
Supreme Court of Wyoming
V-1 OIL COMPANY, Appellant (Complainant),
v.
CITY OF
ROCK SPRINGS, Wyoming, a Municipal Corporation, Appellee
(Respondent).
Appeal from District
Court, SweetwaterCounty, Jere Ryckman,
J.
F.M. Andrews, Jr. and
Robert O. Anderson of Andrews and Anderson, P.C., Riverton, for
appellant.
Vincent E. Crow, City
Atty., Rock
Springs, for appellee.
Before URBIGKIT, C.J.,
and THOMAS, CARDINE, MACY and GOLDEN, JJ.
URBIGKIT, Chief
Justice.
[¶1.] This case involves an
official written order of the Rock Springs, Wyoming Fire Chief requiring
immediate (sixty days) removal by appellant, V-1 Oil Company (V-1 Oil), of a
long-standing 18,000 gallon liquefied petroleum gas (LPG or propane) storage
tank from its service station premises within the city limits of the City of
Rock Springs, Wyoming (City), appellee. The storage tank had been anathematized
by the Fire Chief for contended violation of the City's Uniform Fire Code. V-1
Oil appealed the Fire Chief's order and sought a variance from the Wyoming
Council on Fire Prevention, Electrical Safety, and Energy Efficiency in
Buildings (State Council). The State Council upheld the order of the Fire Chief
and refused to consider V-1 Oil's request for a variance. The district court
affirmed the State Council decision.
[¶2.] We reverse and
remand.
I. FACTS
[¶3.] V-1 Oil owns and
operates a service station and convenience store in Rock Springs, Wyoming. As part of its business, V-1 Oil
sells and dispenses propane from a 500 gallon tank. Also located on the premises
is an 18,000 gallon propane storage tank. The 18,000 gallon above-ground tank
was placed in its present location in either the late 1970's or early 1980's to
replace a 12,000 gallon tank which had been in use at the same location since
1964.
[¶4.] The City is a
municipality organized under the laws of the State of Wyoming pertaining to
first class cities. See W.S. 15-3-101 through 15-3-104. In 1985, the City
adopted by ordinance the 1985 version of the Uniform Fire Code (UFC).1 Approximately a year or so after
adoption, Rock Springs Fire Department Inspector Dennis Washam inspected the V-1
Oil facility and determined that the large propane storage tank violated the
tank capacity limitation in UFC § 82.105(a). UFC § 82.105(a) states:
Within the limits
established by law restricting the storage of liquefied petroleum gas for the
protection of heavily populated or congested commercial areas, the aggregate
capacity of any one installation shall not exceed 2,000 gallons water capacity,
except that in particular installations this capacity limit may be altered at
the discretion of the Chief after consideration of special features such
as topographical conditions, nature of occupancy and proximity to buildings,
capacity of proposed tanks, degree of private fire protection to be provided and
facilities of the local fire department. The storage of liquefied petroleum gas
shall conform to the provisions of the local zoning ordinance.
(Emphasis
added.)
[¶5.] Following Fire
Inspector Washam's initial inspection, Rock Springs Fire Chief Harvey Cozad
accompanied Inspector Washam to the V-1 Oil facility and together they made a
visual inspection of the premises and surrounding area. Their investigation of
the area was neither elaborate, systematic nor formalized. Without the benefit
of having conducted a hearing and simply on the basis of his visit to the
premises, Chief Cozad concluded that the long-existent LPG tank violated UFC §
82.105(a). After applying what he called a "common sense" interpretation to such
terms as "heavily populated or congested commercial area," the Fire Chief
determined that none of the UFC § 82.105(a) "special features" were present
which would compel him to make an exception to the 2,000 gallon capacity
limitation. Consequently, on January 27, 1987, Fire Inspector Washam - acting at
the direction of Fire Chief Cozad - issued a Notice of Violation to V-1 Oil by
finding the 18,000 gallon capacity tank violated UFC § 82.105(a). Removal was
ordered.
[¶6.] In response, V-1 Oil
objected to the removal order and informed the City that its Notice of Violation
did not contain a provision for an appeal. Since it had not previously
considered an appeal from a Fire Code violation, the City discovered that it had
failed to establish a local board of appeals pursuant to UFC § 2.302 (1985). UFC
§ 2.302 states:
In order to determine the
suitability of alternate materials and type of construction and to provide for
reasonable interpretations of the provisions of this code, there shall be and
hereby is created a Board of Appeals consisting of five members who are
qualified by experience and training to pass upon pertinent matters. The fire
chief shall be an ex officio member and shall act as secretary of the board. The
Board of Appeals shall be appointed by the executive body and shall hold
office at their pleasure. The board shall adopt reasonable rules and regulations
for conducting its investigations and shall render all decisions and findings in
writing to the fire chief, with a duplicate copy to the appellant, and may
recommend to the executive body such new legislation as is consistent
therewith.[2]
(Emphasis
added.)
[¶7.] Lacking the local
appeal board which should have been established pursuant to UFC § 2.302, the
City determined that the State Council would be the proper body to hear an
appeal. Thus, a second Notice of Violation giving V-1 Oil sixty days to remove
its tank was issued on July 6, 1988. The second notice informed V-1 Oil that the
adverse decision of the Fire Chief could be appealed to the State Council.
Following issuance of the second notice, the Fire Chief contacted a private fire
protection consulting engineer for independent verification that the violation
determination was correct.
[¶8.] On July 22, 1988, V-1
Oil filed a notice of appeal with the State Council requesting a hearing. Six
days later, V-1 Oil filed a supplemental request with the State Council for a
variance to allow V-1 Oil to continue operating its facility with the 18,000
gallon propane tank in place. Though the record of correspondence between the
parties in this case is incomplete (i.e., V-1 Oil's August 4, 1988 letter to the
Attorney General's office as referenced in the record at is not contained in the
record), it appears that there was considerable uncertainty and much debate as
to what jurisdiction, if any, the State Council would have to consider V-1 Oil's
variance request.
[¶9.] V-1 Oil argued that
since the City had failed to create a local board of appeals pursuant to UFC §
2.302, then W.S. 35-9-106(c) (1988) established a right for V-1 Oil to have the
State Council consider its variance request. W.S. 35-9-106(c)
states:
Except as provided under
W.S. 35-9-124(a)(ii) [dealing with the right of the Electrical Board to hear
appeals and grant variances from Council rules and regulations], the council
shall hear appeals to determine the suitability of alternate materials and type
of construction and to interpret and grant variances from rules and regulations
of the council.
[¶10.] On the other hand, the assistant attorney
general responsible for advising the State Council felt that all the State
Council could do in this case was to decide the merits of V-1 Oil's appeal
without considering the variance request. The assistant attorney general relied
on W.S. 35-9-121(c) (1988) which states:
A municipality or county
which has enforcement authority under this section may create its own appeals
boards to determine the suitability of alternate materials and types of
construction. The boards shall be appointed and removed by the governing body of
the municipality or county. The council on fire prevention, electrical safety
and energy efficiency in buildings and the electrical board shall serve as
appeals boards for a municipality or county that has not created an appeals
board under this subsection.[3]
In an August 10, 1988
letter to V-1 Oil's counsel, the assistant attorney general indicated that W.S.
35-9-106(c) only allows the State Council to grant variances from its own rules
and regulations - not from local enforcement district rules and regulations.
Thus, it was the assistant attorney general's opinion that the State Council did
not have jurisdiction to grant a variance in this case.
[¶11.] However, when the State Council began the
hearing on V-1 Oil's appeal on December 1, 1988, it appears the assistant
attorney general had changed her mind as to the applicability of W.S.
35-9-106(c). During the hearing, she advised the State Council as
follows:
As [counsel for the City
and V-1 Oil] have told you[,] this matter has been deliberated for quite some
time over the jurisdictional authority and who does have authority and
jurisdiction over this type of situation and it is clear to me in Wyoming
Statute 35-9-121(c) * * * that this Body does have authority over the questions
at hand.
* * * * * *
[¶12.] It is my opinion that your authority
arises under statute and also under 35-9-106 which specifically authorizes this
Council to grant variances from the Code.
[¶13.] Although the State Council began its
appeal hearing on December 1, 1988, the hearing was continued until January 17,
1989 because an expert witness was unable to attend the December hearing. When
the hearing was resumed in January, the State Council stated at the outset that
it was meeting to determine "whether the 18,000 gallon liqu[e]fied petroleum
tank is or is not in violation of the [UFC] and whether or not it meets the
intent of the Code." In effect, the State Council reversed its December 1, 1988
position on jurisdiction and refused to consider V-1 Oil's variance request.
Instead, the State Council conducted the hearing for the sole purpose of
determining whether the Fire Chief abused his discretion or acted arbitrarily or
capriciously in finding that the 18,000 gallon tank violated the
UFC.
[¶14.] On March 27, 1989, the State Council
entered its Findings of Fact, Conclusions of Law, Decision and Order. The State
Council affirmed the Fire Chief's tank removal order by the unsurprising
analysis that the tank was larger (18,000 gallons) than provided in the code
criteria (2,000 gallons). Everyone recognized this fact from the onset and no
hearing for authentication was actually required. V-1 Oil filed a Petition for
Review and Request for Trial De Novo in the District Court, Third Judicial
District, SweetwaterCounty on April 28, 1989. The district
court affirmed the State Council's decision on June 22, 1990 and V-1 Oil then
filed this appeal. The district court granted V-1 Oil's motions for stay of
execution pending the outcome of all appellate proceedings in this
matter.
II. ISSUES
[¶15.] V-1 Oil states the issues for review as
follows:
I. The actions of the
Council, in refusing to accept and rule on V-1's request for a variance, was
arbitrary, capricious and contrary to law.
II. The Council's
findings of fact, conclusions and decision was arbitrary, capricious and not
based on the facts.
III. The refusal of the
Fire Chief to grant a variance was arbitrary, capricious, and not supported by
the facts.[4]
[¶16.] Because we find V-1 Oil's first issue
dispositive, we need not decide whether the State Council's findings and
conclusions and the Fire Chief's refusal to grant a variance were supported by
substantial evidence.
III. ANALYSIS
[¶17.] It is apparent from the record, the
appellate briefs and the oral argument that the parties were and remain confused
about the State Council's jurisdiction to consider V-1 Oil's variance request in
this case. The State Council conducted what amounted to a full-blown contested
case-type hearing as to the merits of V-1 Oil's appeal of the Fire Chief's
decision. However, although the State Council heard expert testimony and
examined the evidence submitted by V-1 Oil and the City as to tank safety and
other environmental conditions surrounding tank placement, the State Council had
already decided as a matter of law that it did not have jurisdiction to consider
the variance request.5
[¶18.] In reviewing an administrative agency
action of this sort, we are guided by the standard set forth in W.S.
16-3-114(c)(ii)(A) (1990). As a reviewing court, we are required to "[h]old
unlawful and set aside agency action * * * found to be * * * not in accordance
with law[.]" Id.
[¶19.] It is not clear from the record what
statutory basis the State Council finally used to decide that it did not have
jurisdiction to consider V-1 Oil's variance request. Without identifying a
specific statutory basis for refusing the request, the State Council simply
stated in its findings and conclusions that it was considering "an appeal from a
decision of a local fire chief under W.S. 35-9-121(c)" and that Fire Chief Cozad
and Fire Inspector Washam "were not arbitrary[,] capricious, nor [had they]
abused their discretion" in the performance of their duties. All that was really
determined was the admitted fact - the tank was 18,000 gallons.
[¶20.] In affirming the State Council's
decision, the district court identified and relied on UFC § 82.105(a) to decide
that only the Fire Chief has authority to consider a variance. While UFC §
82.105(a) states that the Fire Chief may exercise his discretion in altering the
tank capacity limitation at any particular installation in a heavily populated
or congested area, the provision does not preempt variance consideration by
either a local board of appeals or by the State Council pursuant to W.S.
35-9-106(c).
[¶21.] The district court's narrow
interpretation of UFC § 82.105 also fails to take into account the legislative
intent inherent in W.S. §§ 35-9-106(c), 35-9-121(c) and UFC § 2.302, the UFC
section authorizing local appellate boards "to provide for reasonable
interpretations of the provisions of this code." Although UFC § 2.302 does not
explicitly vest a local appeal board with authority to consider variance
requests, the "reasonable interpretation" language reflects a clear intent that
the Fire Chief's discretion under UFC § 82.105(a) is not unfettered. The
legislature resolved potential conflict in this regard when it enacted W.S.
35-9-121(b): "If local [fire] code provisions conflict with adopted state codes,
the state code prevails." Thus, state statutes prevail over conflicting
provisions in the Rock
Springs version of the UFC. Regardless of the
jurisdictional limitations arguably contained in UFC §§ 2.302 and 82.105(a), a
careful reading of W.S. 35-9-106(c) in conjunction with W.S. 35-9-121(c)
dictates that the legislature intended the State Council to have jurisdiction in
variance requests when, as here, a municipality has failed to create a local
board of appeals.
[¶22.] When read separately, the Wyoming statutory and UFC
provisions at issue in this case are not ambiguous. However, none of the
provisions speak directly and independently to the particular factual situation
present in this case. Thus, our primary concern is to make sense of the
legislative product by reading all of the provisions in pari materia to
ascertain legislative intent. Mauler v. Titus, 697 P.2d 303 (Wyo. 1985). We have said
we will "construe together statutes relating to the same subject" to avoid
conflicting and confusing results. Department of Revenue and Taxation v.
Irvine, 589 P.2d 1295, 1298 (Wyo. 1979); see also Stauffer Chemical Co. v. Curry, 778 P.2d 1083 (Wyo. 1989).
[¶23.] It would be incongruous to find that the
State Council would have the right to consider a variance request brought
by a nonfirst class city Wyoming resident but that the State Council would
not have similar jurisdiction if the variance request was brought by a
resident of a first class city - especially when the City itself had failed to
create a local board of appeals as mandated by City ordinance. If we were to
accept the argument advanced by the City in this case, we would penalize a
resident of Rock Springs by denying that person
or business the full measure of due process and statutory protection to seek a
variance accorded other Wyoming residents.
[¶24.] In holding that the State Council had
jurisdiction to consider V-1 Oil's variance request, we rely on the following
language in W.S. 35-9-106(c): "the council shall hear appeals * * * to
interpret and grant variances from rules and regulations of the council."
(Emphasis added.) We recognize that the mandatory language requiring the State
Council to consider variances is ostensibly limited to variances "from rules and
regulations of the council." The City argues that W.S. 35-9-106(c) should not
apply here since the UFC provision in this case is a City ordinance and not a
rule or regulation of the State Council. The problem with this reasoning is that
it fails to take into account the role the State Council must assume when it
substitutes as an appellate board in the absence of a local board of appeals
pursuant to W.S. 35-9-121(c). If the State Council is to function in the
capacity of a local board of appeals, it must be vested with the same authority
and jurisdiction to interpret local ordinance rules and regulations. Otherwise,
simply assigning the title without the corresponding mantle of authority would
render meaningless the statutory appeal process. This court has often said that
we will assume that the legislature does not intend futile or meaningless
things. Hamlin v. Transcon Lines, 701 P.2d 1139 (Wyo. 1985). Thus, we find the legislature must
have intended under the circumstances presented here that the State Council
should consider variance requests where the City, for whatever reason, did not
establish its own appeal procedure by naming an appeal board.
[¶25.] Since V-1 Oil would have had the right to
seek a variance from a local board of appeals if the City had established
such a board as mandated by UFC § 2.302, then V-1 Oil cannot be found to have
sacrificed that same right to seek a variance from the State Council simply
because the City ignored the mandatory requirement and failed or refused to
establish a local board pursuant to UFC § 2.302 of its own ordinance. While the
State Council may have acted in good faith and with the benefit of advice from
the state attorney general's office, it erred in concluding as a matter of law
that it could not consider V-1 Oil's variance request. Similarly, though perhaps
for different reasons, the district court erred in reaching the same result.
W.S. 35-9-106(c), when read in conjunction with W.S. 35-9-121(c) leads to the
conclusion that the State Council in this case had jurisdiction to consider V-1
Oil's request for a variance since the State Council was acting in the absence
of and in the same capacity as a local board of appeals.
[¶26.] Thus, since the Fire Chief never
conducted a variance hearing and the State Council refused to do so upon
request, V-1 Oil has been denied a basic and fundamental due process right to
have its variance request heard and decided by an impartial tribunal. While V-1
Oil does not enjoy an absolute right to obtain a variance for its propane
storage tank which preexisted enactment of the Rock Springs fire code, at the very least V-1
Oil does have a due process right to have its variance request heard and
considered. See n. 1, supra and UFC § 1.103(b) relating to conditions existent
when the ordinance was adopted. We hold as a matter of law and under the
particular circumstances of this case that the State Council erred in deciding
that it did not have jurisdiction to consider V-1 Oil's variance request. W.S.
16-3-114(c)(ii)(A).
[¶27.] In light of our decision in Cook v.
Zoning Bd. of Adjustment for the City of Laramie, 776 P.2d 181 (Wyo. 1989), we
also find it necessary to discuss whether the Fire Chief should have conducted a
hearing in the process of determining that V-1 Oil's tank violated the UFC. The
Fire Chief's determination that the propane tank in question violated the UFC
and that it did not warrant an exception due to "special features" was, in
effect, a variance denial. In Cook, we held that "[a] variance decision must be
supported by adequate findings." Id. at 185. Furthermore, no evidence of
consideration of the "distinct hazard" criteria of UFC § 1.103(b) is
provided.
[¶28.] In this case, because of the absence of
any record as to specific findings of fact the Fire Chief made prior to
concluding that the tank violated the UFC, it is impossible to know which
"special features" were considered. While it may be argued6 that V-1 Oil was entitled at the
very least to an informal hearing before the Fire Chief, this much is clear:
absent a hearing, the Fire Chief failed to provide any indication that he had
considered any neighborhood conditions (i.e., "special features" or "distinct
hazards") in the tank's vicinity. Consequently, prior to the Fire Chief's
testimony at the subsequent State Council hearing, it was impossible to tell
whether the Fire Chief exercised any discretion or professional judgment in
reaching his decision or whether he simply applied a literal reading of the
2,000 gallon tank capacity language in UFC § 82.105(a).
[¶29.] Nothing in this record demonstrates that
either a variance or fire code modification application has ever been considered
throughout the course of these proceedings. The second order to remove was filed
July 6, 1988 and more than three years have now passed. By this time, it appears
from the record that a new UFC has been adopted.7 Fashioning any judicial remedy
following reversal presents factual uncertainties unresolvable on this
record.
IV.
CONCLUSION
[¶30.] This case is reversed and remanded to the
district court to be returned for the Rock Springs City Fire Chief to determine
whether he wishes to recommence the proceedings based on the 1988 notice to
remove or whether he desires to issue another notice. If objection is taken to
any notice given pursuant to the UFC, the Fire Chief shall provide an
opportunity for V-1 Oil to object and present evidence which might justify
non-enforcement or issuance of a variance under the provisions of the UFC which
are now in effect. Any appeal or subsequent variance request will be considered
by the applicable City appeal board if one has been established and, if not,
then again by the Wyoming Council on Fire Prevention, Electrical Safety, and
Energy Efficiency in Buildings pursuant to the provisions of W.S. §§ 35-9-106(c)
and 35-9-121(c) as considered by this opinion and the UFC provisions presently
in effect.
[¶31.] Reversed and remanded.
CARDINE,
J.,
files a dissenting opinion.
FOOTNOTES
1 Since we reverse and
remand, problems of record and documentation which perplex this court will be
discussed to avoid reappearance if another appeal should hereafter result in
this proceeding. The 1985 UFC as adopted by city ordinance enactment is not
included in this record. Attachments to the appellate briefs provide the only
source of documentation which include limited segments of the UFC's 421-page
detail.
The 1985 edition of
the UFC as a general publication, library identification KF3975.I58 1985,
included in text a proposed ordinance for the enactment by city or governmental
officials by reference. That proposal provided two items within its thirteen
sections of particular interest for this litigation. UFC § 5
provided:
ESTABLISHMENTS OF LIMITS
IN WHICH STORAGE OF LIQUEFIED PETROLEUM GASES IS TO BE
RESTRICTED.
The limits referred to
in Section 82.105(a) of the Uniform Fire Code, in which storage of liquefied
petroleum gas is restricted, are hereby established as follows:
_______________________
NOTE: These limits should
include the heavily populated and the congested commercial areas. These limits
should be detailed unless such limits have been established by other
regulations.
Additionally, UFC § 8
provided:
APPEALS.
Whenever the chief
disapproves an application or refuses to grant a permit applied for, or when it
is claimed that the provisions of the code do not apply or that the true intent
and meaning of the code have been misconstrued or wrongly interpreted, the
applicant may appeal from the decision of the chief to
________________________________________________ ____________________ within 30
days from the date of the decision appealed.
Since the date of
consideration of this facility by the City authorities, a new Compiled
Ordinances of the City of Rock Springs, Wyoming (1989) has been adopted. Further
consideration of action to force the removal of V-1 Oil's LPG storage facility
should now be conducted within established geographical boundary designations
and other criteria provided in the most current city ordinance.
2 The City has, since all
of this litigation occurred, established a Building Codes Appeal Board by City
Ordinance No. 91-02, enacted April 2, 1991. Unfortunately, it is unclear whether
that board has extended authority to consider a City Ordinance Section
7-108.3(f) UFC appeal. Any reference to the UFC is noticeably absent from the
lists of Uniform Codes (i.e., Uniform Building Code, Uniform Mechanical Code,
Uniform Plumbing Code, Uniform Housing Code, Uniform Code for Abatement of
Dangerous Buildings, Uniform Sign Code, Uniform Swimming Pool, Spa and Hot Tub
Codes) specifically mentioned in Sections 7.108.1 and 7.108.2 of the Rock
Springs City Ordinances. Nothing else demonstrates that another appeal board as
required by the UFC has been established.
3 Originally, enforcement
was vested in the state fire marshall, Wyo.
Sess. Laws ch. 166 (1977), with delegating authority to local government
agencies. W.S. 35-436.21 (1975 Cum.Supp.). Upon recodification and creation of
the Department of Fire Prevention and Electrical Safety, Wyo. Sess. Laws ch. 97
(1983), local enforcement was more effectively directed by enactment of W.S.
35-9-121. The obvious purpose of the inclusion of the alternative language for
appeal in W.S. 35-9-121(c) was to assure an appeal board, e.g., the state
agency, in the event the local unit of government did not choose to create its
own appeal instrumentality. See 1983 Dig. of H.J., 47th Gen.Sess., at 66. Under
the prior law before the 1983 decentralization of regulation, the provision for
appeal was with the State Council, see Wyo. Sess. Laws ch. 166 (1977), W.S.
35-436.10(c) (1977), or the municipality and county-created appeal board without
directive provision in case the municipality or county chose not to establish
the appeal board.
4 The litigants did not
consider constitutionality issues created by the application of a subsequently
adopted use regulation to the existent physical structure as an improvement on
the premises where danger to public health and safety is not dispositively
considered. Consequently, neither do we. See Sun Ridge Development, Inc. v. City
of Cheyenne, 787 P.2d 583 (Wyo. 1990); Cheyenne Airport Bd. v. Rogers, 707 P.2d 717 (Wyo. 1985), dismissed 476 U.S. 1110, 106 S. Ct. 1961, 90 L. Ed. 2d 647 (1986);
First English Evangelical Lutheran Church of Glendale v. County of Los Angeles,
Cal., 482 U.S. 304, 107 S. Ct. 2378, 96 L. Ed. 2d 250 (1987), cert. denied 493 U.S. 1056, 110 S. Ct. 866, 107 L. Ed. 2d 950 (1990).
5 There can be no question
that the right of V-1 Oil to seek a variance from UFC compliance is
significantly different than its right to appeal an adverse decision of the Fire
Chief. See United States Steel Corp. v. Wyoming Environmental Quality Council,
575 P.2d 749 (Wyo. 1978) (Thomas, J., specially
concurring); 3 Anderson, American Law of Zoning 3d, § 20.02 (1986) (variance
defined); and 1 Anderson, supra, § 6.08 at 466 (nonconforming
use - elements of existing use). A variance in zoning terminology is defined
as:
[A]uthorization for the
construction or maintenance of a building or structure, or for the establishment
or maintenance of a use of land, which is prohibited by a zoning ordinance. It
is a right granted by a board of adjustment pursuant to power vested in such
administrative body by statute or ordinance and is a form of administrative
relief from the literal import and strict application of zoning
regulations.
3 Anderson, supra, § 20.02
at 365 (footnotes omitted).
We do not attempt to
distinguish, for the purpose of this decision, differences among conditional
use, nonconforming use and variance, and especially so since the record
indicates that the City has now replaced the 1985 UFC with the 1988 UFC which,
according to the testimony, "is different." See 3 Anderson, supra, § 20.05 at 374, "Conditional
use distinguished." See also, for differentiation, Harding v. Board of Zoning
Appeals of City of Morgantown, 159 W. Va. 73, 219 S.E.2d 324 (1975).
This case does not
present a zoning controversy, see W.S. 15-1-601 through 15-1-611 (1980 and 1991
Cum.Supp.), relating to city and town zoning. The appeal board provided by W.S.
35-9-121 is completely different from the zoning board of adjustment authorized
to be established by W.S. 15-1-605 (1991) and, at least in present terms, also
different from the Building Codes Appeal Board created by Ordinance 91-02,
adopted April 2, 1991. In technical terminology, the variance discussed in this
appeal is distinguishable from a zoning variance and could more accurately be
described as an exception application arising from the general provisions
created by the after-the-fact adoption of the UFC to a structure presently
existent and in use.
6 Helpful insight is found
in Thornley v. Wyoming Highway Dept., Motor Vehicle Division, 478 P.2d 600 (Wyo.
1971). In Thornley, (a case dealing with the constitutionality of Wyoming's Financial
Responsibility Act and the failure of the superintendent to conduct a hearing to
establish potential culpability prior to driver license suspension) we
said:
Our administrative
procedure act and our rules of civil procedure both contemplate administrative
proceedings where there is a hearing and administrative proceedings where there
is no hearing. If the legal rights, duties or privileges of a party are required
by law to be determined by an agency after an opportunity for hearing, the
proceeding is called a "contested case." If such hearing is not required, the
proceeding is a non-contested case. * * *
* * * * * *
[Though Thornley was
not a "contested case"], [t]hat is not to say, however, that the superintendent
should not grant a hearing, in his discretion, if and when a need therefor has
been shown.
Id. at 603.
In some respects, this
case is analogous to Thornley. Here, the Fire Chief had a duty and
responsibility to determine whether any UFC § 82.105(a) "special features"
existed which might warrant alteration of the tank capacity limitation. Both of
the violation notices sent to V-1 Oil by the Fire Chief contained nothing more
than a mere statement that, "[t]he tank(s) at this location well exceeds the
2,000 gallon limit." The conclusive finding of a violation absent any showing
that the Fire Chief considered the "special features" pursuant to UFC §
82.105(a) does not create a record from which an aggrieved party may
appeal.
7 For the most part, a
casual examination of the 1988 UFC does not reveal many significant differences
in effect and terminology relative to the proposed model ordinances: "Scope" and
"Existing Conditions," UFC § 1.103(a) and (b); "Establishments of Limits in
Which Storage of Liquefied Petroleum Gases is to be Restricted," UFC § 5;
"Appeals," UFC § 8; and "Board of Appeals," UFC § 2.303. However, it is apparent
that a significant difference exists between UFC § 82.105(a) (1985) regarding
aggregate capacity and UFC § 82.104(b) (1988), "Maximum Capacity Within
Established Limits." With regard to the present issue, the significant
difference is the removal in the latter edition of the alternative capacity
criteria within the discretion of the chief. The 1988 UFC limits the size of the
tank within the appropriately designated area to a maximum capacity of the 2,000
gallons without exception.
CARDINE, Justice,
dissenting.
[¶32.] I dissent.
[¶33.] We put form over substance in this
reversal and remand which will require the parties to go through the same
procedure (order, notice, contested case hearing, and appeal) just completed. If
the Board, after hearing the experts and all evidence, had found the fire chief
acted arbitrarily and capriciously, it would have vacated the order of removal,
the effect being to allow the tank to remain. The effect would be a variance.
The Board, after hearing the evidence, affirmed the fire chief's action, and so
should we.
[¶34.] There is substantial support for the
Board's finding that the fire chief had not acted in an arbitrary and capricious
manner. The majority acknowledges that the fire chief applied a rule of "common
sense." The rule of "common sense" has heretofore been urged upon this Court
with considerable vigor. Brown v. State, 816 P.2d 818 (Wyo. 1991) (Urbigkit,
C.J., dissenting). Having had the foresight to apply this rule, the fire chief's
determination of removal requirement is surely entitled to considerable
weight.
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