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Wyoming’s Tyranny of the Minority

  • Should 20% of Your Neighbors Be Able to Dictate What You Can Do With Your Property?

In Wyoming a mere 20% of neighbors can effectively block new private investment by a landowner by forcing a three-fourths (¾) majority vote by a municipal governing body to approve a land-use zoning change.  Wyoming Statute § 15-1-603 empowers a minority of people in collusion with government actors who do not own land to dictate to property owners what they can do with their own land. This empowerment extends far beyond the authority people normally expect under a republican form of government, placing disproportionate power in the hands of individuals who did not buy the land to be developed. This one Wyoming zoning statute threatens both private property rights and housing availability in growing communities.

This type of neighborhood veto has become a recurring issue in Cheyenne over the past year and a half,  as landowners tried to satisfy the market’s demand for additional housing have been rejected by the City Council. Two proposed apartment development projects (Snyder Plaza in south Cheyenne and a Crest Ridge rezoning in northeastern Cheyenne) were effectively killed by the Not In My Back Yard syndrome in 2013—despite the well-documented rental housing shortage in Cheyenne. Now, even a proposed traditional single-family neighborhood development called Thomas Heights located between Ridge Road and North College Drive in northeastern Cheyenne is under attack.

These examples have proven the mathematical absurdity W.S. § 15-1-603 allows. A private landowner, a majority of adjacent landowners, and a majority of a city council can all agree that the landowner should be allowed to develop a new project on private property. However, a mere one-fifth of neighbors can still stop the project in its tracks by simply signing a petition pursuant to W.S. § 15-1-603. The Thomas Heights rezoning example goes one step further. It demonstrates how an extreme minority can hold both private landowners and the whole local economy hostage. Six landowners have jointly applied to the City for the Thomas Heights project — but because there are only twenty other private parcels within 140-feet of the proposed Thomas Heights project, a mere four neighboring landowners could trigger the supermajority vote rule in the statute. To successfully block this project, these four landowners would only need the support of three members of Cheyenne’s governing body—or even less than that if a council member is not present when the vote is cast. As these numbers show, this statute does not merely protect adjacent property interests; it turns upside down the whole premise of a local government that reflects the aggregate will and interest of the people.

The landowners and developers whose projects get blocked are not the only people harmed by protests under the statute.  The Cheyenne area’s well-documented housing supply problem has triggered even more government spending to study the problem. All of the local governments in Laramie County are preparing to jointly solicit a massive housing needs study. Local and national taxpayers will pay for this study. Additionally, this project will involve all of the associated regulatory requirements and strings attached to Federal money coming from the U.S. Department of Housing and Urban Development (HUD). Some of these requirements, such as the proposed ‘Affirmatively Furthering Fair Housing’ Policy, are so politically controversial that there has been considerable push back by conservatives against them. This controversy is rooted in the possibly that the  proposed regulations threaten basic individual liberties such as a family’s decision about which neighborhood to live in or who may purchase an individual dwelling that has been placed on the market.

Each landowner does have the right to quiet enjoyment of his or her own land and can rightfully demand that neighbors must adhere to “the maxim [use your property in such a way that you do not damage others] which lies at the foundation of so much of the common law of nuisances” reiterated in 1926 by the U.S. Supreme Court in Village of Euclid v. Ambler Realty Company. However, like so many other governmental ‘cures’, both Wyoming’s statutory tool to enforce this right (W.S. § 15-1-603), and the likely HUD-mandated consequences of the resulting housing needs study are more toxic to private property rights than the original perceived problem faced by existing homeowners.

Because this grant of disproportionate power over private property to a minority of neighbors is enshrined in state statute, any change to the protest petition rule must come from the Wyoming Legislature. Until the Legislature repeals or amends W.S. § 15-1-603, landowners have good reason to fear the tyranny of the minority.

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Sunday, 22 October 2017
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