Rosenberger v. City of Casper Board of Adjustment , 1988 Wyo. LEXIS 176 ( 1988 )

GOLDEN, Justice.

Appellants John Rosenberger, Julia Ro-senberger, Irvin Timberman, Patricia Tim-berman, and Lucille Read (Rosenbergers) challenge the district court’s dismissal of their appeal from appellee City of Casper Zoning Board of Adjustment’s (Board) denial of their petition for rehearing.

We affirm.

In their petition for rehearing, Rosenber-gers challenged the Board’s August 6, 1987, final decision granting a Conditional Use Permit to a nonprofit shelter for homeless persons. The Board is said to have mailed written notice of its decision to grant the permit on October 8, 1987. On August 13, 1987, Lucille Read and Duane Timberman filed a notice of appeal in the district court from the Board’s decision to grant the permit. That notice of appeal was dismissed on November 9, 1987, for failure to comply with the Wyoming Rules of Appellate Procedure.

Rosenbergers filed their petition for rehearing with the Board on November 13, 1987. The Board held a rehearing on December 3, 1987, during which it denied the petition for rehearing. Rosenbergers appealed from the denial of their petition for rehearing in a notice of appeal filed on January 11, 1988. The district court dismissed that notice of appeal on April 25, 1988, after determining that it lacked jurisdiction to review the Board’s denial of the petition for rehearing because the Board lacked authority to rehear its original decision to grant the Conditional Use Permit. From this determination the district court reasoned that Rosenbergers’ notice of appeal was not taken from an appealable final order and the notice of appeal was not timely filed as to the original Board decision granting the permit. Rosenbergers challenge those conclusions, arguing that: (1) the Board’s order denying rehearing was an appealable final order over which the district court had jurisdiction; and (2) their appeal was timely as to the original Board decision granting the permit, because under W.R.A.P. 12.04,¹ the petition for rehearing tolled the time during which the notice of appeal from the Board’s decision to grant the permit had to be filed.

The district court dismissed Rosenber-gers’ notice of appeal from the Board’s decision denying rehearing, basing its dismissal on this court’s opinion in Hupp v. Employment Security Commission of Wyoming, 715 P.2d 223 (Wyo.1986). In Hupp, this court unanimously reversed a Wyoming Employment Security Commission (WESC) decision on rehearing that overturned a final WESC ruling. Although the members of the court at that time unanimously agreed on that result, i.e., WESC had not adopted a rule to rehear its own final decisions, they held divergent views about the source of power from which such a rehearing rule might be created.

In what is labeled as the majority opinion, Justice Cardine, joined by Justice Rooney, held that WESC did not have a rule allowing it to rehear its own final decision because the power to adopt such a rule was not expressly granted to the agency by the legislature. Id. at 225 (citing Tri-County Electric Association, Inc. v. City of Gillette, 525 P.2d 3, 8-9 (Wyo.1974)). A specially concurring opinion, authored by Justice Urbigkit, joined by Chief Justice Thomas, and adopted by Justice Brown in his own specially concurring opinion, advocated a different approach. It argued that an agency, with the general powers to adopt rules of procedure when granted by the legislature, may reconsider a decision if the agency has adopted rehearing rules pursuant to the Wyoming Administrative Procedure Act (WAPA). Hupp, 715 P.2d at 228-232. The special concurrence cited W.S. 16-3-102(a)(i) (October 1982 Repl.) as authority for this position. 715 P.2d at 228. (Urbigkit, J., specially concurring, joined by Thomas, C.J. See also Id. at 227 (Brown, J., specially concurring).

This case is not one in which an agency has adopted a rehearing rule without express legislative authority to do so, thereby requiring us to choose one of the two positions advocated in Hupp to render a binding opinion. In fact, embracing either of those positions in this case would risk issuing an advisory opinion. 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 WAPA, 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.

The Board’s order denying Rosen-bergers’ petition for rehearing is not an appealable final order since the Board lacked authority to rehear its original decision granting the permit. Rosenbergers’ filing of their petition for rehearing did not toll the running of the time period for filing a notice of appeal of final agency action under W.R.A.P. 12.04.

AFFIRMED.

1 . W.R.A.P. 12.04 provides in pertinent part:

In a contested case, or in a noncontested case where a statute places a time limit on appeal, the petition for review shall be filed within thirty (30) days after written, certified notice to all parties of the final decision of the agency or denial of the-petition for a rehearing, or if a rehearing is held, within thirty (30) days after written, certified notice to all parties of the decision thereon * * *. (Emphasis added.)