Many blame laws that exempt “ranchettes” (parcels larger than 35 or 40 acres) from subdivision rules. Figures on the total land in Wyoming caught up in these large-tract developments are not available, but according to Albany County planner Doug Bryant, they cover more than 54 square miles of Albany County alone. Regulated subdivisions have consumed over 150 square miles in the state since 1998. (UW Ruckelshaus IENR, 2007).

 

   The 2008 Wyoming Legislature enacted legislation ostensibly designed to address this problem. The law, known as SF11, empowers counties to require a permit for subdivisions that create parcels of 35 to 140 acres.

What will this law do, exactly? 

   Nothing, unless counties exercise the limited authority it provides. Furthermore, the law exempts all properties recorded on July 1, 2008. Each property may be divided into not more than 10 parcels of 35 to 140 acres. These subdivisions can be created at any time in the future and will be subject to minimal requirements.

   SF11 is largely “buyer beware” legislation. It allows counties to require subdividers to disclose information about infrastructure (utilities, water, fire protection) and to inform prospective buyers of facilities that will not be provided. By enabling counties to require assurance that developers have adequate financial resources to complete proposed facilities, the law also affords counties some protection.

 

   Counties may not require developers to provide water, power, sewage systems, or other utilities. In fact, the law forbids counties from denying a subdivision permit for failure to provide utility connections. The new law hints that approval might be withheld, but it does not specify the causes.

   Existing law already requires that ingress and egress and utility easements be provided to parcels larger than 35 acres. SF11 allows counties to require proof that access will be “adequate” and up to county standards. But counties are not committed to maintain such roads, and the law explicitly absolves them of any duty to maintain private roads.

 

The law gives scant attention to the environment. In counties with permit systems, developers must consult the local conservation district regarding erosion and flooding. The county might have to send copies of the application to the state Dept. of Environmental Quality (as is now required for smaller-tract subdivisions) for recommendations as to water supply and sewage. But nothing in the law requires the board of county commissioners, which makes all decisions, to weigh environmental effects.

Take note: State laws applicable to small-tract subdivisions are minimum requirements, expressly authorizing counties to impose more restrictive rules, yet the new law just as clearly forbids counties from setting stricter requirements.

 

   This should shed light on why ranchers and realtors, who first fought SF11, say they can “live with” the law as passed.
Most Wyomingites are dismayed that ranchland is being diced up into small bits. But SF11 won’t stop that. Indeed, the law might cause a “land rush” by owners seeking to avoid new regulations.

   Upon signing the bill Governor Freudenthal called the measure a “good first step toward controlling sprawl.” In fact, the law does little or nothing to control sprawl.

   Regulating sprawl involves deciding how, when and where development should occur. SF11 gives the counties a very modest voice in how large-tract subdivisions will be developed. It gives them no say about when or where development will occur. Developers remain in the driver’s seat.

   The Wyoming Supreme Court has made clear that counties may regulate land use only by developing a comprehensive plan and then adopting zoning ordinances to implement it (Ford v. Converse County, 1996). Thereafter, “a landowner cannot develop or use any land within that area without obtaining a zoning certificate.” Wyoming authorized zoning nearly 50 years ago, but few counties exploit their powers. By 2005 only 12 counties were fully zoned, 2 were partially zoned and 11 had no zoning at all. Former Albany County planner Andy Kasehagen lamented that counties resist planning until after growth hits—and then it’s too late.

   Ironically, those most opposed to zoning complain loudest about new development. As the governor put it, their attitude is “don’t regulate me—regulate the other guy who’s doing something I don’t like.”

   Opposition to zoning is often impelled by property rights rhetoric, but rights in private property are not, and never have been, “absolute.” In a landmark 1926 case (Village of Euclid v. Ambler Realty Co.) the U.S. Supreme Court upheld a zoning ordinance as constitutional, even though it significantly reduced the market value of some lands.

Wyoming recognizes the public’s interest in how private land is used. Article 2 of the planning and zoning statutes begins: “To promote the public health, safety, morals and general welfare of the county, each board of county commissioners may regulate and restrict the location and use of buildings and structures and the use, condition of use or occupancy of lands for residence, recreation, agriculture, industry, commerce, public use and other purposes in the unincorporated area of the county.”

   The Wyoming Supreme Court construes this as a “broad grant of authority” to regulate land use. In cases spanning 1980 to 2004, the court found county authority to:

   Local governments’ only hope of matching growth to community standards lies in comprehensive land use plans, implemented by both zoning and subdivision regulations. Happily, in the words of Sheridan County planner Mark Reid, there’s “a lot of unutilized potential” in zoning.

   Carbon County is a case in point. In 2003 it established an “open range” zone with a minimum lot size of 640 acres—one residence per square mile. The ordinance was attacked as an unconstitutional “land grab.” But it is consistent with the county’s rural nature and its 1972 plan, which calls for preserving open space. “Some might argue that it’s still rural sprawl," concedes Luther Propst of the Sonoran Institute. But Propst, who addressed the January 2008 conference “Building the Wyoming We Want,” believes 640 acres is “a lot better environmentally than the 40-acre or less densities most Western counties allow.”

   The Carbon County ordinance suggests that attitudes toward “the Z word” are changing. Indeed, in a survey of Sheridan, Sublette, and Uinta counties in 2003, a “majority of respondents in all counties supported some form of zoning.”

   “How zoning is proposed,” the researchers suggested, “may be more important than the issue of zoning per se.” (McLeod et al. 2003).

   Conserving the Wyoming virtues that keep so many of us here will depend on visionary leadership and bold action.

 

   Weak half-measures like SF11 will not suffice.

   Wyoming can learn from models tested by others; we needn’t reinvent the wheel. But we must choose wheels that fit, mount them, and get rolling.

   Wagons, ho!