# Preserve Our Cody Neighborhoods, an unincorporated association; Terry and Diana Skinner; Dan and Konnie Haman; Patrick and Lynn Pitet; Sheila and Doug Peterson; Becky Stern; Siri and Tom Blake; Carla Egelhoff; Peggy Rohrbach; Brandi and Ty Nelson; Sarah Mcclure; and Chuck and Celeste Radtke v. The Church of Jesus Christ of Latter-day Saints, a Utah corporation sole and City of Cody Planning, Zoning and Adjustment Board

> Wyoming Supreme Court · June 13, 2025 · 2025 WY 64

URL: https://www.frixlaw.com/law-library/cases/11070985

## Case

- **Court:** Wyoming Supreme Court
- **Decided:** June 13, 2025
- **Citations:** 2025 WY 64
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11070985

## Opinion text

IN THE SUPREME COURT, STATE OF WYOMING

2025 WY 64

APRIL TERM, A.D. 2025

June 13, 2025

PRESERVE OUR CODY
NEIGHBORHOODS, an unincorporated
association; TERRY and DIANA
SKINNER; DAN and KONNIE HAMAN;
PATRICK and LYNN PITET; SHEILA and
DOUG PETERSON; BECKY STERN;
SIRI and TOM BLAKE; CARLA
EGELHOFF; PEGGY ROHRBACH;
BRANDI and TY NELSON; SARAH
McCLURE; and CHUCK and CELESTE
RADTKE,

Appellants
(Petitioners),

v. S-24-0244

THE CHURCH OF JESUS CHRIST OF
LATTER-DAY SAINTS, a Utah
corporation sole,

Appellee
(Petitioner/Cross-Petitioner),

and

CITY OF CODY PLANNING, ZONING,
AND ADJUSTMENT BOARD,

Appellee
(Respondent).
Appeal from the District Court of Park County
The Honorable John R. Perry, Judge

Representing Appellants:
Debra J. Wendtland, Anthony T. Wendtland, and Noah S. Grovenstein, Wendtland
& Wendtland, LLP, Sheridan, Wyoming. Argument by Ms. Wendtland.

Representing The Church of Jesus Christ of Latter-day Saints:
Matthew J. Micheli, Bradley T. Cave, and Macrina M. Sharpe, Holland & Hart LLP,
Cheyenne, Wyoming; Kendal R. Hoopes, Yonkee & Toner, LLP, Sheridan,
Wyoming. Argument by Mr. Cave.

Representing City of Cody Planning, Zoning, and Adjustment Board:
No appearance.

Before BOOMGAARDEN, C.J., and FOX,* GRAY, FENN, and JAROSH, JJ.
* Justice Fox retired from judicial office effective May 27, 2025, and, pursuant to Article 5, § 5 of
the Wyoming Constitution and Wyo. Stat. Ann. § 5-1-106(f) (2023), she was reassigned to act on
this matter on May 28, 2025.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are
requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of
any typographical or other formal errors so that correction may be made before final publication in the
permanent volume.
GRAY, Justice.

[¶1] The Church of Jesus Christ of Latter-day Saints (Church) submitted a site plan and
an application for a conditional use permit (CUP) to the City of Cody Planning, Zoning,
and Adjustment Board (Board) for construction of a temple on land it owns in the city.
After Board approval of the site plan and CUP application, Preserve Our Cody
Neighborhoods (POCN) 1 filed petitions for review in the district court challenging each of
those approvals. The district court determined it lacked jurisdiction over POCN’s petitions
because they were untimely. We affirm.

ISSUE

[¶2] We restate POCN’s issues as one:

Did the district court err when it determined it lacked
jurisdiction to reach the merits of POCN’s petitions for review
because they were untimely? 2

FACTS

[¶3] The Church sought to build a temple on a 4.69-acre parcel of land it owns in the
City of Cody. The land is zoned as Rural Residential (RR). The temple, as proposed,
consisted of a 24’ tall building topped with a 76’11” tall steeple, reaching a total height of
100’11”. In May 2023, the Church made three submittals to the Board. First, it requested
a special exemption from the requirements of Cody Ord. § 10-6-2 3 which states the
“maximum building height” in the RR zone is “30’ above finished grade.” Second, it
submitted a site plan under Cody Ord. § 9-2-3. 4 Third, it applied for a CUP because
“[c]hurches and houses of worship” are “conditional uses” in the RR zone under Cody Ord.
§ 10-7-2.

1
POCN is an unincorporated association of City of Cody landowners opposed to the construction of the
temple. The landowners are Terry and Diana Skinner, Dan and Konnie Haman, Patrick and Lynn Pitet,
Sheila and Doug Peterson, Becky Stern, Siri and Tom Blake, Carla Egelhoff, Peggy Rohrbach, Brandi and
Ty Nelson, Sarah McClure, and Chuck and Celeste Radtke.
2
POCN also challenges the district court’s denial of its requests to supplement the record on appeal.
According to POCN, its supplemental evidence would show that the Board’s approval of the Church’s site
plan and CUP application was tainted by the City Planner’s conflict of interest as a member of the Church.
POCN raised the conflict of interest claim in its petitions for review. Because we conclude the district court
lacked jurisdiction over POCN’s petitions for review, we do not reach this issue.
3
All references to the City of Cody ordinances are to those in effect at the time of the Board’s actions in
this case and are contained in the record in Case No. 23-CV-30764 at pages 1812–66.
4
Cody Ord. § 9-2-3 applies to commercial buildings. Although the temple is not a commercial building,
the City of Cody has historically required churches to comply with this ordinance’s site plan requirements.

1
[¶4] The Board scheduled a special meeting for June 15, 2023, to consider the Church’s
special exemption request, site plan, and CUP application. It provided public notice of the
meeting on May 25 and 30, 2023, and these notices included a June 8, 2023 deadline for
the public to proffer any written comments on the Church’s submittals. In response, the
Board received hundreds of comments both in favor of and in opposition to the construction
of the proposed temple. POCN voiced its opposition to the grant of any exceptions to the
zoning ordinances, expressing concern over many things, including the negative impacts
the temple’s lighting and height would have on its members’ views of the night sky and
scenic surroundings.

[¶5] Prior to the meeting, the City Planner prepared a 42-page staff report for the Board
addressing the Church’s special exemption request, site plan, and CUP application. As a
preliminary matter, the City Planner questioned whether the proposed temple exceeded the
RR zone’s “maximum building height” of 30’ and asked the Board to decide this question
before addressing the special exemption request. He pointed out that a special exemption
was unnecessary if the proposed temple complied with the ordinance. The City Planner
provided the Board with the definition of “building height” from the City of Cody’s zoning
code:

BUILDING HEIGHT: Building height refers to the vertical
distance between the average finished grade and either: a) the
highest point of the coping of a flat roof; b) the deck line of a
mansard roof; or c) the height of a point midway between the
eaves of the main roof and the highest ridge line of a gable, hip
or gambrel style roof. . . .

Cody Ord. § 10-2-1. Relying on subsection (a), he contended that the proposed temple did
not exceed the “maximum building height” of 30’ because it has a flat roof and the distance
between the average finished grade to the highest point of the coping of the flat roof was
less than 30’ tall. The City Planner stated the steeple should not be considered in
calculating the temple’s building height because the steeple’s base was to be suspended by
a steel framework above the temple’s flat roof, the steeple would be open so that rain and
snow would fall through it to the temple’s flat roof, and the steeple would not be habitable.
He recommended the Board adopt his interpretation and find a special exemption was
unnecessary. Turning to the Church’s site plan, the City Planner recommended Board
approval of the site plan subject to 15 conditions. Finally, the City Planner recommended
the Board approve the CUP. Cody Ord. § 10-14-1(D) requires the Board to consider seven
factors when determining whether to grant a CUP, and he asserted all seven factors were
satisfied. 5

5
Cody Ord. § 10-14-1(D) gives the Board authority to approve, impose conditions on, or deny CUP
applications. It requires the Board to base its decision upon seven criteria: (1) whether the site is large

2
A. June 15, 2023 Special Meeting and Church’s First Petition for Review

[¶6] The Board’s June 15, 2023 special meeting was well attended. Five members of the
seven-member Board were present at the meeting, one member was out of town, and
another member recused. The City Planner and the City Attorney were also present. After
allowing extensive comments from the public, including comments from POCN members
and its attorney, the Board discussed the City Planner’s interpretation of “building height.”
The Board did not pass a motion to approve or reject the City Planner’s interpretation. The
Board then took up the Church’s request for a special exemption. A motion was made to
approve the special exemption request, but the motion did not receive a second. After
discussion, the Board agreed to table the matter.

[¶7] Next, the Board considered the Church’s site plan. The City Planner noted the
Church had agreed to the 15 conditions outlined in the staff report. After discussion, a
motion was made to approve the site plan. Three of the five Board members present at the
meeting voted in favor of the motion, one abstained, and one opposed the motion. The
Board believed four votes were required to pass a motion on the site plan and concluded
the motion failed. Four Board members then voted in favor of a motion to table the site
plan issue.

[¶8] The Board turned to the CUP application. The City Planner outlined his findings
with respect to each of the seven factors pertinent to issuance of a CUP under Cody Ord.
§ 10-14-1(D). One of the factors is consideration of whether the proposed use is consistent
with the applicable provisions of the Cody Master Plan. Principle 3.1.f. of the Cody Master
Plan pertains to “[l]imit[ing] the height of new and remodeled construction to respect the
existing or desired character of neighborhoods and districts, maintain a consistent scale of
development, and preserve scenic views.” The City Planner discussed his finding related
to this principle, saying:

Finding: The temple building complies -- well this is
what is still up for discussion but the proposed finding is that
the temple building complies with the building height for the

enough to accommodate the proposed use and meet all of the dimensional standards and development
regulations of the applicable zoning district; (2) whether the use is compatible with all other uses in the
immediate area and with permitted uses that may be established in the area; (3) whether the proposed use’s
operational characteristics would be materially detrimental to any persons, property, or the general welfare
due to excess traffic, noise, smoke, fumes, and other similar hazards; (4) whether the proposed use includes
provisions for necessary and desired public utilities and facilities; (5) whether the proposed use will create
excessive additional costs for public utilities and services that would be materially detrimental to the
community’s economic welfare; (6) whether the proposed use will result in the destruction, loss, or damage
of a natural, scenic, or historic feature of significant importance; and (7) whether the proposed use is
consistent with the applicable provisions of the Cody Master Plan. Cody Ord. § 10-14-1(D).

3
zone in which it is located. Again, I guess that would be up to
interpretation.

After much discussion, the Board moved “to approve the Conditional Use Permit as stated
in the staff report with findings and recommendations therein . . . .” The motion passed
with four Board members voting in the affirmative and one member opposing the motion.
The minutes from the Board’s June 15, 2023 meeting recite that the Board voted on and
approved the CUP “as stated in the staff report with findings and recommendation therein
. . . after [the City Attorney] advised the board that the building height interpretation and
special exemption request would remain separate applications for discussion at a later
date.” Attached to the minutes were findings of fact for the CUP from the staff reports,
which included the finding that the temple complies with the building height for the zone
in which it is located. Nearly six hours after it first convened, the Board adjourned the
meeting.

[¶9] On July 17, 2023, the Church filed a petition for review of the Board’s actions on
the site plan in the district court (Case No. 23-CV-30734). It argued the Board erred as a
matter of law when it determined that the motion to approve the site plan at the June 15,
2023 meeting failed for a lack of a majority. It maintained that the affirmative vote of three
of the five Board members present at that meeting was sufficient to approve the Church’s
site plan under Cody Ord. § 9-2-3. POCN moved to intervene but did not file a cross-
petition for review or a separate petition for review challenging any of the actions the Board
took at the June 15, 2023 meeting.

B. June 27, 2023 Meeting and Church’s Second Petition for Review

[¶10] The Board held its regularly scheduled meeting on June 27, 2023. This time, six
members of the Board were present. The Board voted to approve the minutes from the
June 15, 2023 meeting with minor changes. The Board discussed the Church’s request for
a special exemption. A motion was made to find that the proposed temple complied with
the RR zone’s “maximum building height” of 30’ and therefore a special exemption related
to the temple’s height was unnecessary. The motion failed when four Board members
opposed it. The Board next discussed its prior approval of the CUP. The Board Chair
explained: “as we were reviewing [the June 15, 2023] minutes, we had a little bit of a
hiccup in the procedural side of things[.]” He noted that the Board’s intent at the June 15,
2023 meeting when approving the CUP “was to not accept the building height
interpretation of the City [P]lanner,” yet by adopting the findings and recommendations in
the staff report, the Board inadvertently found the proposed temple complies with the RR
zone’s building height restriction. A motion was made and approved to reconsider the
previously approved CUP and to condition the CUP on the approval of a special exemption
relating to the temple’s height. The Board then considered the Church’s request for a
special exemption, but no agreement was reached. Finally, it discussed and re-tabled the
site plan.

4
[¶11] On July 27, 2023, the Church filed its second petition for review with the district
court (Case No. 23-CV-30738), claiming the Board did not have the power or authority at
the June 27, 2023 meeting to reconsider and modify its findings concerning the CUP that
had been approved at the June 15, 2023 meeting. It also alleged the Board had no power
or authority to reconsider and table the site plan that had been previously approved at the
June 15, 2023 meeting. POCN again moved to intervene but did not file a cross-petition
for review or a petition for review.

C. July 25, 2023 Special Meeting and POCN’s First Petition for Review

[¶12] On July 21, 2023, the Church withdrew its request for a special exemption. Four
days later, on July 25, 2023, the Board held a special meeting with six members present.
The Board discussed the site plan and again voted to table it. The Board then proceeded
to make amended findings related to the approved CUP. Among other findings, the Board
found that “[t]he highest point of the ‘High Roof’ on the Temple building . . . adhere[s] to
the 30 ft. building height limit set for the Rural Residential Zone where the structure[] [is]
located.” 6 The CUP with the amended findings was recorded in the Park County Clerk’s
Office on August 29, 2023.

[¶13] On August 21, 2023, POCN filed a petition for review with the district court (Case
No. 23-CV-30754) contending the Board’s approval of the CUP at the July 25, 2023
meeting was arbitrary and capricious, contrary to the law, and unsupported by substantial
evidence. The Church filed a cross-petition for review, arguing the Board did not have the
power or authority at the July 25, 2023 meeting to amend the findings related to the already
approved CUP.

D. August 8, 2023 Meeting and POCN’s Second Petition for Review

[¶14] On August 8, 2023, the Board held its regularly scheduled meeting where it
approved the Church’s site plan subject to the 15 conditions recommended by the City
Planner (with minor adjustments to two of those conditions) and two additional conditions
related to the lighting of the temple and its surrounding site. On August 24, 2023, POCN
filed its second petition for review with the district court (Case No. 23-CV-30764)
challenging the Board’s approval of the site plan at the August 8, 2023 meeting as arbitrary,
capricious, not in accordance with the law, and unsupported by substantial evidence. The
Church filed a cross-petition for review, arguing the Board approved the site plan at the
June 15, 2023 meeting and it did not have the power or authority to revisit that decision at
the August 8, 2023 meeting.

6
“High Roof” refers to a label on the Church’s architectural drawings of the proposed temple. It appears
to refer to the roof of the habitable portion of the temple, which is 20’5” above the ground.

5
E. District Court’s Decisions on Parties’ Petitions For Review

[¶15] The district court consolidated the parties’ petitions for review. It determined the
Board approved the site plan at the June 15, 2023 meeting under Cody Ord. § 9-2-3 when
three of the five Board members present at the meeting voted to approve it; the Board
approved the Church’s CUP application at the June 15, 2023 meeting; and the Board had
no authority to subsequently modify the previously approved site plan or CUP. Because
the Board’s approvals of the site plan and CUP at the June 15, 2023 meeting constituted
final agency action, the court found it was without jurisdiction to consider the merits of
POCN’s petitions for review because they were filed more than 30 days after those
approvals. POCN timely appealed. POCN and the Church filed briefs, but the Board
declined to participate in this appeal.

STANDARD OF REVIEW

[¶16] We review de novo the district court’s decision that it lacked jurisdiction to reach
the merits of POCN’s petitions for review because they were untimely. SEG v. GDK, 2007
WY 203, ¶ 4, 173 P.3d 395, 395 (Wyo. 2007). In deciding that it lacked jurisdiction, the
district court interpreted various city ordinances and determined the Board did not act in
accordance with the law. “Interpretation of statutes, administrative regulations and
municipal ordinances is a matter of law, which we review de novo.” Tarver v. City of
Sheridan Bd. of Adjustments, 2014 WY 71, ¶ 20, 327 P.3d 76, 83 (Wyo. 2014) (citations
omitted). Our review of the Board’s decisions is governed by Wyo. Stat. Ann. § 16-3-
114(c)(ii), which requires us to

[h]old unlawful and set aside agency action, findings and
conclusions found to be:

(A) Arbitrary, capricious, an abuse of discretion or
otherwise not in accordance with law;

. . .

(E) Unsupported by substantial evidence in a case
reviewed on the record of an agency hearing provided
by statute.

Wyo. Stat. Ann. § 16-3-114(c)(ii)(A), (E) (LexisNexis 2023); Contango Res., LLC v.
Fremont Cnty., 2025 WY 29, ¶ 23, 565 P.3d 167, 173 (Wyo. 2025). We review the Board’s
decisions as if they came directly to us, and “we give no deference to the district court’s
decision.” HB Fam. Ltd. P’ship v. Teton Cnty. Bd. of Cnty. Comm’rs, 2020 WY 98, ¶ 32,
468 P.3d 1081, 1091 (Wyo. 2020) (citing Hardy v. State ex rel. Dep’t of Workforce Servs.,
Workers’ Comp. Div., 2017 WY 42, ¶ 10, 394 P.3d 454, 457 (Wyo. 2017)).

6
DISCUSSION

Did the district court err when it determined it lacked jurisdiction to reach the merits of
POCN’s petitions for review because they were untimely?

[¶17] W.R.A.P. 12.04(a) requires a petition for judicial review of an administrative action
to be filed in the district court “within 30 days after service upon all parties of the final
decision of the agency[.]” “[A] final administrative order is one ending the proceedings,
leaving nothing further to be accomplished. If the agency retains the matter for further
action, the order is not final.” Air Methods/Rocky Mountain Holdings, LLC v. State ex rel.
Dep’t of Workforce Servs., Workers’ Comp. Div., 2018 WY 128, ¶ 54, 432 P.3d 476, 489
(Wyo. 2018) (quoting Douglass v. Wyo. Dep’t of Transp., 2008 WY 77, ¶ 17, 187 P.3d
850, 854 (Wyo. 2008) (quoting MGTC, Inc. v. Pub. Serv. Comm’n of Wyo., 735 P.2d 103,
106 (Wyo. 1987))). The “timely filing of a petition for review of administrative action is
mandatory and jurisdictional.” Chevron U.S.A., Inc. v. Dep’t of Revenue, 2007 WY 62,
¶ 7, 155 P.3d 1041, 1043 (Wyo. 2007).

[¶18] The district court decided POCN’s August 2023 petitions for review challenging the
Board’s approval of the Church’s site plan and CUP application were untimely because
they were filed more than 30 days after the Board approved the site plan and CUP at the
June 15, 2023 meeting, and the Board was without authority to subsequently reconsider
and modify those approvals. POCN claims the district court erred in concluding its
petitions for review were untimely. It contends the Board did not approve the site plan and
CUP at the June 15, 2023 meeting and no final agency action occurred at that meeting
which could be appealed. POCN maintains final agency action with respect to the site plan
and CUP did not occur until the August 8, 2023 and July 25, 2023 meetings, respectively,
rendering its petitions for review timely.

A. Site Plan

[¶19] The crux of the dispute between the parties as it relates to the site plan is whether
its approval required the affirmative vote of the majority of the Board members present at
the June 15, 2023 meeting (three members) or a majority of the entire Board as comprised
(four members). Relying on Cody Ord. § 9-2-3, 7 the district court agreed with the Church

7
Cody Ord. § 9-2-3 states:
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

7
and determined approval of the site plan required a favorable vote from a majority of the
board members in attendance at the meeting. As a result, the Board approved the site plan
when three of the five Board members present at the June 15, 2023 meeting voted in favor
of it. POCN does not dispute that Cody Ord. § 9-2-3 requires only a majority of the Board
members in attendance at the meeting to approve the site plan. It claims, however, that
Cody Ord. § 9-2-3 conflicts with the Board’s enabling statute, Wyo. Stat. Ann. § 15-1-
608(c), which requires a majority of all Board members, whether present at the meeting or
not, to approve a site plan. Applying that standard, POCN maintains the Board did not
approve the site plan at the June 15, 2023 meeting because only three members of the
seven-member Board voted to approve the site plan, and because it lacked a majority vote
for approval, the Board tabled the site plan discussion for further review. POCN argues
there was no final agency decision with respect to the site plan at the June 15, 2023 meeting,
and it was not required to file a separate petition for review or file a cross-petition for
review in Case No. 23-CV-30734, and we should dismiss the Church’s petition for review
in that case for lack of a final agency decision.

[¶20] “When interpreting a statute, we seek the legislature’s intent ‘as reflected in the
plain and ordinary meaning of the words used in the statute.’” In Int. of JB, 2017 WY 26,
¶ 12, 390 P.3d 357, 360 (Wyo. 2017) (quoting Butler v. State, 2015 WY 119, ¶ 7, 358 P.3d
1259, 1262 (Wyo. 2015)). “We therefore construe each statutory provision in pari materia,
giving effect to every word, clause, and sentence according to their arrangement and
connection.” Nicodemus v. Lampert, 2014 WY 135, ¶ 13, 336 P.3d 671, 674 (Wyo. 2014).
“When a statute is clear and unambiguous, the statute’s plain language is given effect.”
Sinclair Wyo. Ref. Co. v. Infrassure, Ltd, 2021 WY 65, ¶ 12, 486 P.3d 990, 994 (Wyo.
2021) (citing Ultra Res., Inc. v. Hartman, 2010 WY 36, ¶ 69, 226 P.3d 889, 916 (Wyo.
2010)). The same rules apply when we interpret a city ordinance. See Sorensen v. Halling,
2025 WY 8, ¶ 23, 561 P.3d 1241, 1247 (Wyo. 2025) (“In interpreting a municipal
ordinance, we rely on our usual rules of statutory interpretation.” (quoting Sikora v. City of
Rawlins, 2017 WY 55, ¶ 23, 394 P.3d 472, 479 (Wyo. 2017))).

[¶21] Wyo. Stat. Ann. § 15-1-608 outlines the powers and duties of a city’s board of
adjustment. It states in pertinent part:

(a) The board shall:

(i) Hear and decide:

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.
(Emphasis added.)

8
(A) Appeals from and review any order,
requirement, decision or determination made by
an administrative official charged with the
enforcement of any ordinance adopted pursuant
to this article;

(B) All matters referred to it or upon which it
is required to pass under any such ordinance.

. . .

(b) The board has the power to:

(i) Hear and decide special exemptions to the terms
of the ordinance upon which the board is required to
pass under the ordinance;

. . .

(ii) Vary or adjust the strict application of any of the
requirements of any ordinance adopted pursuant to this
article in the case of any physical condition applying to
a lot or building if the strict application would deprive
the owner of the reasonable use of the land or building
involved.

. . .

(iii) Grant exceptions and variances upon request
after a showing that an illegal construction or a
nonconforming building or use existed for a period of at
least five (5) years in violation of local ordinance and
the city or town has not taken steps toward enforcement;

(iv) Reverse or affirm wholly or partly the order,
requirement, decision or determination as necessary,
but no power exercised under this paragraph shall
exceed the power or authority vested in the
administrative officer from whom the appeal is taken.

(c) The concurring vote of a majority of the board is
necessary to reverse any order, requirement, decision or
determination of any administrative official, or to decide in

9
favor of the application on any matter upon which it is required
to pass under any ordinance or to effect any variation in the
ordinance.

Wyo. Stat. Ann. § 15-1-608 (LexisNexis 2023) (emphasis added).

[¶22] Section 15-1-608 is unambiguous. Reading the statute as a whole, it clearly applies
when a city’s board of adjustment 8 is acting on ordinances “adopted pursuant to this
article.” “[T]his article” refers to Article 6 of Title 15 of the Wyoming Code which
authorizes municipalities to enact ordinances and regulations governing zoning. Ahearn v.
Town of Wheatland, 2002 WY 12, ¶ 10, 39 P.3d 409, 414 (Wyo. 2002) (citing Wyo. Stat.
Ann. §§ 15-1-601 through -611). As a result, under § 15-1-608(c), a concurring vote of a
majority of a city’s board of adjustment is necessary: (1) to reverse any order, requirement,
decision or determination of any administrative official charged with the enforcement of
any zoning ordinance; (2) to decide in favor of an application on any matter upon which
the board is required to pass under any zoning ordinance; or (3) to effect any variation in
a zoning ordinance.

[¶23] Section 15-1-608(c) does not apply to Cody Ord. § 9-2-3 because Cody Ord. § 9-2-
3 is not a zoning ordinance. The City of Cody’s zoning ordinances are contained in Title
10 of its Municipal Code. Cody Ord. § 9-2-3 is in Title 9 of Cody’s Municipal Code, which
contains “Building Regulations.” Wyo. Stat. Ann. § 15-1-608(c) does not address building
regulations and does not require a majority vote of the entire Board to approve actions not
governed by zoning ordinances. There is no conflict between the statute and Cody Ord.
§ 9-2-3, which mandates only an affirmative vote from a majority of the members present
at the meeting to approve a site plan. No other Wyoming statute specifies the number of

8
The Church claims Cody Ord. § 9-2-3 does not conflict with Wyo. Stat. Ann. § 15-1-608 because the
statute only applies to decisions delegated to boards of adjustment. While the Board in this case acts as the
City of Cody’s planning commission, zoning commission, and board of adjustment, the Church maintains
the Board is not acting in its capacity as a board of adjustment when it reviews site plans. Wyoming statutes
allow a city’s planning commission to serve as the city’s zoning commission and board of adjustment.
Wyo. Stat. Ann. §§ 15-1-502 (allowing city to have a planning commission); 15-1-604 (allowing for an
already existing city planning commission to be appointed as the zoning commission); 15-1-605 (allowing
the mayor, with the consent of the governing body, to appoint the city planning commission as the board
of adjustment). The City of Cody has elected this procedure. See Cody Ord. § 10-2-1 (“The Planning and
Zoning Board serves as the Planning Commission as authorized by Wyoming Statutes section 15-1-502,
the Zoning Commission as authorized by Wyoming Statutes section 15-1-604, and the Board of Adjustment
as authorized by Wyoming Statutes section 15-1-605; and has the powers and duties as prescribed by State
law and City ordinances.”). Cody Ord. § 9-2-3 requires the “Planning, Zoning and Adjustment Board” to
approve site plans whereas Cody Ord. § 10-14-1(C) requires the “Planning and Zoning Board” to decide
whether to issue a CUP and Cody Ord. § 10-14-2 requires the “Planning and Zoning Board, in [its] capacity
as the Board of Adjustment,” to decide whether to grant a special exemption from the terms of a zoning
ordinance. Given that Cody Ord. § 9-2-3 does not limit the Board’s role in reviewing site plans, we decline
to decide the matter on the basis argued by the Church.

10
votes required for site plan approval and Cody Ord. § 9-2-3 controls. See Ahearn, ¶ 15, 39
P.3d at 416 (because ordinance did not conflict with statute and no other state statute
addressed the issue, the town council was required to comply with the ordinance). The
Board approved the Church’s site plan at the June 15, 2023 meeting when three of the five
members in attendance at the meeting voted to approve it.

[¶24] Once the Board approved the site plan at the June 15, 2023 meeting, nothing in
Wyoming law or in the City of Cody ordinances allowed the Board to reconsider its
approval at the subsequent meetings. See Rosenberger v. City of Casper Bd. of Adjustment,
765 P.2d 367, 369 (Wyo. 1988) (agreeing with the district court that the board of
adjustment could not rehear its decision granting a CUP because the board’s enabling
statutes did not give it the express power to rehear its final decisions and the board’s own
rules and regulations did not allow for rehearing). POCN does not contend otherwise. 9

[¶25] The Board’s approval of the site plan at the June 15, 2023 meeting constituted a
final administrative decision, as it concluded the proceedings regarding the Church’s site
plan. See, e.g., Goodman v. Voss, 2011 WY 33, ¶ 22, 248 P.3d 1120, 1125–26 (Wyo. 2011)
(determining December 15 Board of County Commissioner’s order establishing the private
road constituted final agency action because it “finally determined the necessity of a private
road, it located the road, and it assessed damages. In short, it determined the merits of the
controversy”), superseded on other grounds by statute as recognized in Whaley v. Flitner
Ltd. P’ship, 2017 WY 59, ¶¶ 16–17, 395 P.3d 653, 659 (Wyo. 2017); Ebzery v. City of
Sheridan, 982 P.2d 1251, 1254 (Wyo. 1999) (holding that minutes from the July 30 City
of Sheridan Board of Adjustment meeting constituted the final agency decision because
the minutes indicated “the Board unequivocally granted the variance [and] adopted
findings which had been dictated into the record. . . . Thus, there was nothing further to
accomplish after the July 30 meeting.”). POCN had 30 days from June 15, 2023, to file its
petition for review. W.R.A.P. 12.04(a). It did not file it until August 24, 2023. The district
court correctly determined it lacked jurisdiction over POCN’s petition for review
challenging the site plan because it was untimely. Chevron, ¶ 7, 155 P.3d at 1043.

B. CUP

[¶26] The district court found the Board approved the Church’s application for a CUP at
the June 15, 2023 meeting, and the Board was without authority to subsequently modify
the CUP except under the conditions outlined in Cody Ord. § 10-14-1(K), none of which
applied. POCN contends the Board did not approve the CUP at the June 15, 2023 meeting
because: (1) it never reached a decision at that meeting regarding the temple’s height and
9
Although neither party addresses it, the fact the Board tabled the site plan issue at the June 15, 2023
meeting did not affect its previous vote approving the site plan. Under Robert’s Rules of Order, the purpose
of a motion “to lay on the table” is to “lay aside [a] pending question” not to undo a vote. See Robert’s
Rules of Order (Revised) Art. V, § 28, http://www.rulesonline.com/ (last visited May 16, 2025) (“[a motion
to lay on the table] cannot be applied to anything except a question actually pending” (emphasis added)).

11
tabled the Church’s request for a special exemption; (2) the City Attorney advised the
Board prior to approving the CUP that it could and did preserve its authority to render a
decision on the temple’s height in the future and the meeting minutes reflect this; and (3)
the Board continued to meet and discuss the temple height issues after the June 15, 2023
meeting, including at the June 27, 2023 meeting, where the Board expressly made the
Church’s CUP application conditional on the Church receiving a special exemption with
respect to the temple’s height, and at the July 25, 2023 meeting, where the Board,
confronted with the fact that the Church had withdrawn its request for a special exemption,
approved the CUP with the specific finding that the temple’s “high roof” complied with
the 30’ maximum building height restriction. In other words, POCN argues the Board’s
failure to reach a final decision on the temple’s height at the June 15, 2023 meeting means
it did not reach a final decision on the CUP at that meeting. POCN also relies on the fact
the Board did not issue/record the CUP until August 29, 2023, and the findings included
with the recorded CUP were those made at the July 25, 2023 meeting.

[¶27] The Board approved the CUP at the June 15, 2023 meeting and that approval
included a final decision on the temple’s height. At that meeting, the Board failed to reach
agreement on two items of business. These were the separate consideration of the City
Planner’s interpretation of “building height” and the Church’s request for a special
exemption. After these items of business, the Board took up the question of the CUP and
it passed a motion “to approve the conditional use permit as stated in the staff report with
the findings and recommendations therein.” 10 The findings and recommendations in the
written staff report included the following: (1) the proposed temple “complies with the
Cody zoning regulations for . . . maximum building height, as it . . . [d]oes not exceed 30
feet in ‘building height’ as defined by [Cody Ord. § 10-2-1]”; (2) because “the height
requirements are met, the [Church’s request for a special exemption] is unnecessary”[;] (3)
the Church’s CUP application satisfies the seven factors the Board must consider under
Cody Ord. § 10-14-1(D); and (4) the CUP should be approved. The staff report verbally
presented by the City Planner to the Board at the June 15, 2023 meeting included findings
that the Church’s CUP application satisfied all seven factors necessary for issuance of a
CUP and “that the temple building complies with the building height for the zone in which
it is located.” By voting to approve the CUP as stated in the staff report with its findings
and recommendations, the Board approved the CUP and made a final decision that the
proposed temple’s height complied with the RR zone’s “maximum building height”
restriction, thereby rendering the Church’s request for a special exemption moot.

[¶28] Once the Board approved the CUP with findings at the June 15, 2023 meeting, it
was without authority to modify the CUP or those findings at the June 27 and July 25, 2023
meetings. In Rosenberger, the City of Casper’s Zoning Board of Adjustment granted a
CUP to a nonprofit homeless shelter on August 6. Rosenberger, 765 P.2d at 368.

10
Unlike approval of a site plan under Cody Ord. § 9-2-3, a majority of the entire Board as comprised is
required to approve a CUP. See Wyo. Stat. Ann. § 15-1-608(c); Cody Ord. §§ 10-4-3(E), 10-14-1(C).

12
Appellants filed a motion for rehearing with the Board on November 13, which the Board
denied on December 3. Id. The next month, Appellants appealed the denial of their motion
for rehearing to the district court. Id. The district court decided the Board did not have
authority to rehear its original decision granting the CUP, and therefore, its decision
denying rehearing was not an appealable order. Id. It dismissed Appellants’ appeal
because it was not timely filed as to the Board’s original decision. Id. We agreed that the
Board did not have the authority to rehear its original decision, explaining:

The statutes allowing the City of Casper to appoint the Board
do not give the Board the express power to rehear its final
decisions. See W.S. 15-1-605 through 15-1-609 (July 1980
Repl.). Further, the Board’s own rules and regulations, which
appear to have been adopted pursuant to the [Wyoming
Administrative Procedure Act], do not set forth a specific
procedure for rehearing final Board decisions concerning
Conditional Use Permits. No statutory or regulatory authority,
under any rationale, exists for the Board to rehear its final
decision on a Conditional Use Permit.

Id. at 369.

[¶29] In this case, the Board’s enabling statutes do not allow it to modify an approved
CUP. Wyo. Stat. Ann. §§ 15-1-502, 15-1-507 (planning commission), 15-1-604 (zoning
commission), 15-1-605 through -609 (board of adjustments). Cody Ord. § 10-14-1(K)(1)
allows a CUP to be

revoked, suspended, or modified by the board for cause upon
notice to the permit holder and public hearing, for either a
breach or violation of any condition of approval or limitation
of the permit; or, if the conditional use is operated in a manner
so as to create a public nuisance as defined and regulated by
this Code.

None of these conditions are present here. The Church did not breach any condition of
approval or limitation of the CUP and, in fact, the Board’s approval of the CUP at the June
15, 2023 meeting did not impose any conditions or limitations. The Church did not operate
the CUP in a manner that created a public nuisance. POCN does not argue otherwise but
claims Cody Ord. § 10-14-1(K) applies only to approved CUPs and the CUP was not
approved at the June 15, 2023 meeting. The Board approved the CUP at the June 15, 2023
meeting.

[¶30] POCN makes much of the fact that the Board believed, based on the advice of the
City Attorney at the June 15, 2023 meeting, that it could approve the CUP and still revisit

13
the City Planner’s “building height” interpretation and the Church’s request for a special
exemption because they were separate applications. The City Attorney correctly told the
Board that the “building height” interpretation and the special exemption request were
separate from the CUP application and that the Board could approve the CUP conditioned
on the Church receiving approval on its special exemption. See Cody Ord. § 10-14-1(D)
(allowing the Board to impose conditions on a CUP), (E) (authorizing Board to impose
conditions on the proposed use, including limiting the height of the project or any
component thereof). While he also told the Board that the “building height” interpretation
and the special exemption request would remain pending if the Board approved the CUP,
it is not clear from the meeting transcript that the City Attorney knew when he offered this
advice that the Board would be adopting the staff findings in toto. Moreover, when the
City Attorney informed the Board that any motion to approve the CUP required findings
related to the seven factors outlined in Cody Ord. § 10-14-1(D), the Chair referred the other
Board members to the CUP findings in the written staff report and the City Planner stated:
“My long diatribe up here, I was reading the findings so I guess if you agreed with that,
that is what you would adopt is the findings as presented by staff.” When asked if the
motion could be to approve the CUP with all the findings and recommendations as written
in the staff report, the City Planner said yes “[u]nless of course you disagree with [any] of
the recommendations or the findings . . . .” Accordingly, the Board knew that if it adopted
the findings and recommendations of staff, those findings would include those the City
Planner read into the record, including that the proposed temple complies with the building
height for the zone in which it is located. 11 Even if some Board members may have
intended to reserve the height issue for future action and mistakenly believed that they had
done so, these assumptions do not override the clear language of the motion and are not
grounds for the Board to modify a previously approved CUP. See, e.g., Cook v. Zoning
Bd. of Adjustment for the City of Laramie, 776 P.2d 181, 184 (Wyo. 1989) (“Suffice it to
observe that the action of the Board speaks from its written record[.]”); In re J.H. Carter
Builder, Co., Inc., 381 S.E.2d 889, 891 (N.C. Ct. App. 1989) (a board of adjustment’s rules
requiring a rehearing to be denied unless there is a substantial change in the facts or
evidence prohibited the board from rehearing a variance application because of one
member’s mistaken belief that the board had no authority to change the area requirements
of a zoning ordinance or because one member wanted to change his vote); Haba v. Cuff,
201 N.E.2d 343, 345 (Ohio Ct. App. 1963) (while an administrative agency cannot correct
its orders it can correct clerical error; “[t]he power to correct a record because of clerical
errors should not be used, however, to change a previous order because hindsight makes it

11
The fact that the City Planner informed the Board of the effect of any vote to adopt the findings of staff
belies POCN’s claim in its reply brief that the City Planner’s actions constituted a “‘gotcha’ tactic.” POCN
also argues that the City Planner expressed equivocation on June 16, 2023, as to whether the Board’s
adoption of the staff’s findings when approving the CUP meant it accepted his interpretation of “building
height” and mooted the Church’s special exemption request. This argument is unavailing. It is clear any
equivocation was due to the City Planner proceeding from memory, as the videotape of the June 15, 2023
meeting was not yet available. Nevertheless, the City Planner’s interpretation of the Board’s actions is not
controlling.

14
possible to see errors in judgment not apparent at the time of entering the original order,
or in changing the order to conform to that which a board now wishes it had done”
(emphasis added)); 4 Patricia E. Salkin, American Law of Zoning § 40:49 (5th ed. 2024)
(“Absent a provision in a statute or ordinance which authorizes a board of appeals to rehear
a case which it has decided, some courts hold that a board is without authority to review
its own decisions solely for the purpose of reconsidering the evidence adduced at the first
hearing, or applying a law unknown or misunderstood by the board when the decision was
made.” (emphasis added)).

[¶31] Finally, the fact that the CUP was not recorded with the Park County Clerk’s Office
until August 29, 2023, and included the findings from the July 25, 2023 meeting is of no
moment. The Board had no authority at the July 25, 2023 meeting to modify the findings
the Board made when it approved the CUP at the June 15, 2023 meeting. Additionally, the
recorded CUP states the Board approved the CUP on June 15, 2023.

[¶32] The Board’s approval of the CUP at the June 15, 2023 meeting constituted a final
agency decision as it left nothing more for the Board to do with respect to the CUP. See,
e.g., Goodman, ¶ 37, 248 P.3d at 1130; Ebzery, 982 P.2d at 1254. Therefore, POCN had
30 days from June 15, 2023, to file its petition for review challenging that approval.
W.R.A.P. 12.04(a). It did not file until August 21, 2023. The district court correctly
decided it did not have jurisdiction over POCN’s petition for review challenging the CUP
as it was untimely. Chevron, ¶ 7, 155 P.3d at 1043.

CONCLUSION

[¶33] The district court correctly decided it lacked jurisdiction over POCN’s untimely
petitions for review. Affirmed.

15

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11070985. Public record. Not legal advice.