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Church Files Lawsuit Against Cody, Wyoming (Zoning/Planning Bd)


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Posted
20 minutes ago, Stormin' Mormon said:

Got it.  I see the ambiguity now.  The Cody Town Code requires a "concurring vote of the majority of the commission" in order to take action, but does not specify (one way or the other) whether it's a majority of the commission as a whole, or a majority of the commission then present (consisting of a quorum).  

Robert's Rules of Order state that "when a quorum is present, a majority vote, that is a majority of the votes cast, ignoring blanks, is sufficient for the adoption of any motion that is in order."  Although Robert's Rules of Orders are not legal code and might not be binding, most public bodies in the US use those rules to conduct business.  In the town code for the town I work for, this issue is explicitly stated (majority of a quorum) when it comes to Council votes, but does not explicitly state it when it comes to the votes of boards and commissions.   

My personal opinion is that if Robert's Rules of Orders governed other votes of the P&Z, it should so govern here.  If there are past examples of action taken by a quorum majority, to not do so here can be considered "arbitrary and capricious," and could (and did) lead to lawsuits.  

Edited to add: regardless of how the P&Z vote is counted (total membership vs. quorum), a re-hearing is highly unusual and unless there's a specific process spelled out for re-hearing an issue, doing so would be a legal no-no. 

I served on a town council, and in most cases, even when some council members weren’t present a majority vote of those who were present is all that was needed. BUT when the issue was highly contested it was seen as improper to take a vote without the entire council present to avoid any speculation that the reason the vote was done while council members were missing was done because the issue didn’t have a full majority if all council members were there and a loophole was being used to get the measure passed.  
On a contentious issue like this the vote should not have been taken without the entire council present. 

Posted
9 minutes ago, california boy said:

A lawsuit to get your way may legally work to force the issue. But what do you think that community who has valid reasons to not want the temple in their neighborhood going to think about the Church forcing it down their throats by suing every time they look at that monolith? Obviously some in the community will remember that the whole board never approved this,  and only through suing did the Church impose its will. Is it going to be a beacon of faith and spirituality, or a reminder that the Church, through legal force took away their starry nights and quiet neighborhood streets.  It has now become a symbol of division within their community 

The lawsuit is limited to the action taken by the P&Z Commission with regard to the site plan.  Success in this suit will not mean that the site plan is even approved, just that it can go forward to be reviewed by the City Council.  Success in this suit does not mean that the Conditional Use Permit for the steeple or exemption to the light ordinance will be approved; that will be a separate process.

13 minutes ago, california boy said:

Sometimes you can be technically right but still wrong for both the Church and the community. 

 

48c.jpg

Posted
6 minutes ago, california boy said:

I served on a town council, and in most cases, even when some council members weren’t present a majority vote of those who were present is all that was needed. BUT when the issue was highly contested it was seen as improper to take a vote without the entire council present to avoid any speculation that the reason the vote was done while council members were missing was done because the issue didn’t have a full majority if all council members were there and a loophole was being used to get the measure passed.  
On a contentious issue like this the vote should not have been taken without the entire council present. 

That's what I've seen in functional, smoothly operating boards, commissions, and councils.  I agree that the courteous thing to do would have been to continue the issue until the next meeting.  But once the vote is taken, there's no take-backs.  The Town and it's boards and commissions are legally obligated to respect the results of the vote.  

Posted (edited)
40 minutes ago, Stormin' Mormon said:

Success in this suit will not mean that the site plan is even approved, just that it can go forward to be reviewed by the City Council.  Success in this suit does not mean that the Conditional Use Permit for the steeple or exemption to the light ordinance will be approved; that will be a separate process.

As you have noted in the code, only a majority of those in attendance is required.  Therefore, success in this suit will not lead to a review of the site plan (that has already been reviewed), but a review to see if the City Council "errored as a matter of law" when suggesting that the motion failed due to lack of majority.   The Code seems pretty clear to me that they did error, and therefore a win in this case will lead to a review which will show that the council errored and that the site plan was already previously approved by the majority vote required by their own code.  Unless I am missing something here, a win = site plan approved.

Edited by pogi
Posted
3 minutes ago, pogi said:

As you have noted in the code, only a majority of those in attendance is required.  Therefore, success in this suit will not lead to a review of the site plan (that has already been reviewed), but a review to see if the City Council "errored as a matter of law" when suggesting that the motion failed due to lack of majority.   The Code seems pretty clear to me that they did error, and therefore a win in this case will lead to a review which will show that the council errored and that the site plan was already previously approved by the majority vote required by their own code.  Unless I am missing something here, a win = site plan approved.

The vote in question was a vote by the Planning and Zoning Commission, not the Council.  The P&Z commission isn't usually the final vote, except in minor issues (based on my municipal experience in a different state, so I could be wrong about Cody's process).  Action taken by the P&Z commission almost always proceeds to the Council for final review/approval.  Therefore, if the Church prevails in the lawsuit, then the site plan is approved by the commission and it moves on to the council for their action. 

Posted
8 minutes ago, Stormin' Mormon said:

The vote in question was a vote by the Planning and Zoning Commission, not the Council.  The P&Z commission isn't usually the final vote, except in minor issues (based on my municipal experience in a different state, so I could be wrong about Cody's process).  Action taken by the P&Z commission almost always proceeds to the Council for final review/approval.  Therefore, if the Church prevails in the lawsuit, then the site plan is approved by the commission and it moves on to the council for their action. 

Thanks for explaining it to me. 

Posted (edited)
3 hours ago, california boy said:

I served on a town council, and in most cases, even when some council members weren’t present a majority vote of those who were present is all that was needed. BUT when the issue was highly contested it was seen as improper to take a vote without the entire council present to avoid any speculation that the reason the vote was done while council members were missing was done because the issue didn’t have a full majority if all council members were there and a loophole was being used to get the measure passed.  

I respectfully disagree.  

When an issue is highly contested, there may be an attempt by a governing body's members to forestall a vote through absenteeism.  Conversely, a governing body should usually have a minimum participation number, hence we see "quorum" requirements.

Five of the seven PZA Board Members were present, which created a quorum.  That is what the law explicitly states, so it's not a "loophole" (that is, "an ambiguity or inadequacy in a system, such as a law or security, which can be used to circumvent or otherwise avoid the purpose, implied or explicitly stated, of the system").  Consequently, it would be improper to not take a vote on the basis of the entire board not being present (and to avoid "speculation").

3 hours ago, california boy said:

On a contentious issue like this the vote should not have been taken without the entire council present. 

On a contentious issue like this, the entire board should have attended the meeting.

Such an ad hoc approach is a good example of why Due Process is an important thing.

Thanks,

-Smac

Edited by smac97
Posted
9 minutes ago, pogi said:

Thanks for explaining it to me. 

I'm kind of second guessing myself here.  

The way things work in Cody, WY may be different than the way things work where I'm at.  On the P&Z commission on which I served, it was emphasized that we were an advisory body only; on the few occasions that we voted down something, the issue was still forwarded to the Council for their review, with a note in the file that our commission had voted it down.  It was then up to the Council whether they would agree with our advisory vote or not.  But if the P&Z commission in Cody is similarly limited, then there wouldn't be a need to sue the commission to force them to respect the results of their vote.  

So, until I can dig up something definitive, I'll withdraw my assertion that a successful lawsuit will result in the site plan moving on to the Council for their review and approval.  It's quite possible that the P&Z Commission in Cody has more authority than the one I served on in Arizona.  

Posted
5 hours ago, Tacenda said:

I got carried away in my imagination, I am dying to get out of the city!

When we first moved to Mapleton we could see the Milky Way on a good night. 20 years later, not so much, but it still is tons darker than most places we have lived. 

Posted
5 hours ago, Calm said:

When we first moved to Mapleton we could see the Milky Way on a good night. 20 years later, not so much, but it still is tons darker than most places we have lived. 

I would love to live in Mapleton, sounds glorious. Yesterday my husband and I met his brother and wife at the Draper park to discuss a family reunion we're in charge of and the traffic was unbelievable as is the town of Draper with it's stores and restaurants, my husband grew up there and while dating there was hardly anything. I doubt I'll ever get the opportunity to live in a small town.

Posted
On 7/19/2023 at 12:17 PM, smac97 said:

2. The Cody Municipal Code, Section 10-4-4, requires a party disagreeing the the PZA Board to act very quickly (within days).  Specifically, a "Notice of Appeal" must be filed "within ten (10) days after the decision has been entered on the commission's records," and then a lawsuit must be filed "{w}ithin ten (10) days" of filing the Notice of Appeal.  The hearing was on June 15, but per the news item above the lawsuit was not filed until July 17, or 32 days later.  The only way the Church's lawsuit is timely is if the PZA Board's decision was not "entered on the commission's records" until July 7 or later.  

3. Regarding the "majority vote of the board present at the meeting" v. "majority vote of the board altogether, regardless of how many are actually in attendance" issue, the Municipal Code is silent:

I don't mean to butt in on the conversation, but I thought I'd offer a note of clarification: the City Ordinances actually do specify whether a vote requires a majority of the members in attendance vs. all members. Title 10 (which covers Zoning Regulations), section 10-4-3 reads, in part:

Quote

E. Vote Required: A concurring vote of a majority of the commission is necessary to reverse any order, requirement, decision or determination of any administrative official, or to decide in favor of the application on any matter upon which it is required to pass under any ordinance or to effect any variation of this title. (Ord. 2007-23, 11-6-2007; amd. Ord. 2022-22, 12-20-2022)

The above section governs nearly all the issues the Board votes on in its meetings, which are usually "matter[s] upon which [the Board] is required to pass...to effect [a] variation" of the ordinances—in other words, the Board primarily hears, as I understand it, applications for things like Conditional Use Permits and Special Exemptions, both of which are required for the currently proposed location in Cody. However, there's one exception in Title 9 (on Building Regulations), Chapter 2:

Quote

9-2-3: MEETING WITH PLANNING, ZONING AND ADJUSTMENT BOARD REQUIRED BEFORE BUILDING PERMIT ISSUED:
Before the issuance of any permit under the International Building Code for commercial buildings situated within the City, the applicant, property owner and occupant shall meet with the Planning, Zoning and Adjustment Board to review the application and plans insofar as they pertain to the exterior of a commercial building and site plan conditions. The issuance of a permit shall be conditioned upon the applicant receiving an affirmative vote of a majority of the Planning, Zoning and Adjustment Board members in attendance at said meeting. (Ord. 2011-22, 12-6-2011)

In terms of commercial site plans specifically, the requirement is affirmative votes by a majority present.

In what may have been an unusual approach, the Cody City Planner advised the engineering firm presenting the application to combine on the same day its Conditional Use Permit and Special Exemption applications along with two or three additional permits and other items, one of which was its Commercial Site Plan. So I believe the question at issue is, did the board in fact pass the Site Plan even though only three members voted affirmatively, and despite the Board Chairman declaring, after seeing only three affirmative votes, that the motion to pass the Site Plan failed. And although I don't think the suit raises this question, there might also be the issue of whether the Board understood that the given meeting was also the sort of meeting (if there's more than one "sort") at which they would normally discuss and pass a site plan in preparation for issuing a building permit, given they were likely also assuming the question of the building permit wasn't at issue, since almost none of the other required applications had been passed, and several of them hadn't even been considered at that point. The Board's understanding of what they were doing might be a complicating consideration, especially since some members of the board, and even the attorney advising them during the proceedings, don't always demonstrate a complete grasp on what it is they're actually voting on, at least from my observations of their meetings.

Posted
15 hours ago, Stormin' Mormon said:

The lawsuit is limited to the action taken by the P&Z Commission with regard to the site plan.  Success in this suit will not mean that the site plan is even approved, just that it can go forward to be reviewed by the City Council.  Success in this suit does not mean that the Conditional Use Permit for the steeple or exemption to the light ordinance will be approved; that will be a separate process.

Actually—and shockingly—in this municipality, the P&Z Board is the final arbiter of this issue. No P&Z decisions go to City Council (in matters of rezoning P&Z can make recommendations, but while P&Z may "vote" as to its recommendation, the rezoning decision itself is voted on only by City Council). Appeals of P&Z decisions go directly to State District Court, the only level above which is the Wyoming Supreme Court. So the appellant basically has one chance to be heard once they lose at the level of P&Z and even that comes with the hefty price tag of a district court appellate case.

So in this case, success in the review suit will likely mean the site plan is approved. The CUP and Special Exemption remain separate applications, however, unaffected by the site plan decision.

Posted
14 hours ago, Stormin' Mormon said:

I'm kind of second guessing myself here.  

The way things work in Cody, WY may be different than the way things work where I'm at.  On the P&Z commission on which I served, it was emphasized that we were an advisory body only; on the few occasions that we voted down something, the issue was still forwarded to the Council for their review, with a note in the file that our commission had voted it down.  It was then up to the Council whether they would agree with our advisory vote or not.  But if the P&Z commission in Cody is similarly limited, then there wouldn't be a need to sue the commission to force them to respect the results of their vote.  

So, until I can dig up something definitive, I'll withdraw my assertion that a successful lawsuit will result in the site plan moving on to the Council for their review and approval.  It's quite possible that the P&Z Commission in Cody has more authority than the one I served on in Arizona.  

My apologies, it seems I should have taken the time to read further before commenting, but your second-guess was correct. This P&Z Board seems to have more authority than the vast majority of such boards in existence.

Posted
On 7/19/2023 at 1:26 PM, bluebell said:

And it's at the bottom of the bluff that temple will be built on and won't be impacted at all by the construction or traffic.

This fact is buried in all the application materials, but the storm water management plan proposes piping all groundwater runoff from the parking lot and the temple grounds into Sulphur Creek. So all the runoff from the asphalt or concrete in the parking lot, and the oils from the asphalt or whatever material they'll use for the access road to the temple, plus whatever runs off from construction equipment and parked cars will actually flow right into Sulphur Creek, and the creek drains into the Shoshone river fairly soon (within a few miles at most, I think) after it passes by the proposed temple site.

And although Cody does have a fair amount of "wild"life roaming around in general, the site is actually along a major deer migration corridor—major enough that it's not uncommon for deer to die by getting a leg caught in the fence that currently surrounds the field, if there's not a small section of it left slightly open to allow them through. The current fence is welded wire and maybe four feet; the temple has a fence height waiver to put in a six-foot wrought-iron fence. They won't be along quite the same line, so not the exact same blockage, and it's unclear how much of the migration path would be impeded by the taller fence. My guess is it's more than zero, though, and no chance of propping open some part of the wrought-iron fence to allow them through.

 

Posted (edited)
2 hours ago, colin said:

The Board's understanding of what they were doing might be a complicating consideration, especially since some members of the board, and even the attorney advising them during the proceedings, don't always demonstrate a complete grasp on what it is they're actually voting on, at least from my observations of their meetings.

Very interesting….all your posts.  Thanks for joining the conversation.

Edited by Calm
Posted
19 hours ago, bluebell said:

But Cody does have 9,000 people so it’s not very dark at night. 

Sorry for all the comments, this is almost definitely my last one, but I just can't help but add this:

Cody does have a population of 9-10k and many areas are far from dark at night. The proposed location, however, is actually on the edge of town and (as you'll know since you're from Cody) on the way to Red Lake, a BLM/recreation area, on a road that's basically a dead end (unless you're prepared for some fairly serious 4x4 action). (And yes, if anyone is wondering, the proposed temple site in Cody is on a (two-lane) dead-end road; there's only one way in and out, all of which is on small residential streets until the nearest arterial road, which is at least a mile away. The nearest intersection with a through street of any size is almost a mile away. This is, from what I can tell, fairly unusual for temple sites, even of this comparatively small size.) There's a small subdivision just past the temple site that's being developed, but beyond that is all BLM land, so the subdivision doesn't and won't expand very far. Which is all to say that the area of town is actually one of the last places within the city limits that's easily accessible and dark. A person can drive out just past the subdivision turnoff, and within about a mile reach the end of the paved road, at which point they're in an area where very few man-made structures are visible even during the day, and where at night pretty much the only lights (currently) visible are a few towers atop nearby Cedar Mountain.

But wait—there's more! The specific area where the temple site is proposed (which is just before you pass the subdivision turnoff that's just before the end of the road) is even darker than you'd imagine. In fact, (for some unknown reason) there aren't even streetlights for a couple hundred yards along that section of road. It's so dark that, if you happen to live right there (and I can attest to this from personal experience) and you step outside the house at night, it takes a good 5 minutes before you can see a thing without aid of a flashlight (app). The closest street light in the direction of town is probably 30-40 yards away, not so close the light reaches you. In the other direction, toward where the temple entrance would be, it's profoundly dark. Astonishingly so considering you're still within city limits. The next street light on the other side of the temple site is around 200 yards away; if you're driving by, that's the last street light you'll pass under before the end of the road.

It's probably the last oasis of darkness within Cody's boundaries, at least the last one easily reachable by car and thus easily accessible for most folks. That's the place someone decided was perfect for the temple.

Posted
2 hours ago, colin said:

That's the place someone decided was perfect for the temple.

Has there been any info on why they chose that spot?  Was the land donated by chance or already owned by the Church?

Posted

My wife's parents are currently visiting. I asked her dad if he had heard about the Cody Wyoming temple controversy. He hadn't. I read to him this article. He simply stated, "They should move it."

Posted
6 hours ago, Thinking said:

My wife's parents are currently visiting. I asked her dad if he had heard about the Cody Wyoming temple controversy. He hadn't. I read to him this article. He simply stated, "They should move it."

Perhaps.  Certainly, the Church of Jesus Christ of Latter-day Saints should be a good neighbor.  There are times, I'm sure, when whatever might be gained by the powers-that-be in the Church of Jesus Christ "digging in their heels" on a particular issue would not be worth the goodwill that would be lost in pursuing such a course.  On the other hand, if the Church gave in to a "detractors' veto" on every issue, if its most ardent detractors had their way, never would the Church be able to do anything ... which I think [call me cynical] would suit its most ardent detractors just fine

I haven't studied the issues surrounding each in enough depth to know, and, in any case, I'm not sure I'm smart enough to reach any definitive conclusions, but I have to wonder how similar the respective situations and the surrounding issues are in the cases of Utah's Deseret Peak Temple and the Temple in Cody, respectively.  In the first case, it does seem that as soon as opposition arose, the Church's powers-that-be said, "Fine.  If a majority of members of the community don't want it there, we'll move it."  And they did.  In the case of the Temple in Cody, the Church of Jesus Christ is pursuing a different course, and it's difficult for me to conclude that a major reason for that is simply, "That was then, this is now," or "We flipped a coin."

Posted (edited)
8 hours ago, Kenngo1969 said:

Perhaps.  Certainly, the Church of Jesus Christ of Latter-day Saints should be a good neighbor.  There are times, I'm sure, when whatever might be gained by the powers-that-be in the Church of Jesus Christ "digging in their heels" on a particular issue would not be worth the goodwill that would be lost in pursuing such a course.  On the other hand, if the Church gave in to a "detractors' veto" on every issue, if its most ardent detractors had their way, never would the Church be able to do anything ... which I think [call me cynical] would suit its most ardent detractors just fine

I haven't studied the issues surrounding each in enough depth to know, and, in any case, I'm not sure I'm smart enough to reach any definitive conclusions, but I have to wonder how similar the respective situations and the surrounding issues are in the cases of Utah's Deseret Peak Temple and the Temple in Cody, respectively.  In the first case, it does seem that as soon as opposition arose, the Church's powers-that-be said, "Fine.  If a majority of members of the community don't want it there, we'll move it."  And they did.  In the case of the Temple in Cody, the Church of Jesus Christ is pursuing a different course, and it's difficult for me to conclude that a major reason for that is simply, "That was then, this is now," or "We flipped a coin."

The Deseret Peak community were primarily members while the Cody community are primarily not. That might be the reason (pure speculation).  I can see the Church leaders thinking if members are willing to fight it, they must really not want it, where the assumption by leaders for Cody is it is the same old, same old and likely a good chunk of bigotry inflating the importance of the problems and the neighborhood will learn once the temple is in it’s not the issue they think it will be, especially if the leaders are getting feedback from the bishop who is there (who had his own ideas on why they were protesting it).

If what Colin says is accurate (and I have no reason to doubt him), it sounds like there are significant reasons that would not be solved by proving a temple can be a good neighbor (wildlife migration and the problem with the water runoff harming the creek), so I hope they find a better suited place that meets everyone’s needs if possible.

Edited by Calm
Posted
1 hour ago, Calm said:

The Deseret Peak community were primarily members while the Cody community are primarily not. That might be the reason (pure speculation).  I can see the Church leaders thinking if members are willing to fight it, they must really not want it, where the assumption by leaders for Cody is it is the same old, same old and likely a good chunk of bigotry inflating the importance of the problems and the neighborhood will learn once the temple is in it’s not the issue they think it will be, especially if the leaders are getting feedback from the bishop who is there. 

If what Colin says is accurate (and I have no reason to doubt him), it sounds like there are significant reasons that would not be solved by proving a temple can be a good neighbor (wildlife migration and the problem with the water runoff harming the creek), so I hope they find a better suited place that meets everyone’s needs if possible.

This is going to sound negative, as usual, but the temple building explosion has me wondering if this is going to happen in many other places as well.

Posted (edited)
4 hours ago, Tacenda said:

This is going to sound negative, as usual, but the temple building explosion has me wondering if this is going to happen in many other places as well.

Are there places where typically it doesn’t happen outside of Utah?  I don’t pay much attention to such unless someone brings it up here, but I would assume that it’s pretty common just because they usually try and build temples in quiet neighborhoods and temples tend to be quite large and pretty much are always unusual for the neighborhood (I suppose people might view temples like mega churches, as it services a large number of Saints, not understanding members don’t attend all at once), at least something more than a typical chapel, though my guess is in many places churches of any type aren’t wanted either.  A temple would not be expected like a typical church might be (the amount of land usually going with them and the fencing off of all the land is unusual, I believe) or likely seen as fitting in, so I would be quite surprised if in most cases there wasn’t resistance for some reason (most often the steeple I am guessing, but also traffic).

Edited by Calm
Posted

This is not cool<_<  Provided it is Latter-day Saints who are engaging in this unseemly behavior (as opposed, perhaps, to their opponents who, possibly are doing it to try to make people think, in turn, that Latter-day Saints are doing it, in order whip up anti-Latter-day-Saint sentiment) it doesn't become Latter-day Saints to behave this way.

Posted
On 7/21/2023 at 5:53 AM, Calm said:

Has there been any info on why they chose that spot?  Was the land donated by chance or already owned by the Church?

The land was donated by church members. 

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