                 IN THE SUPREME COURT, STATE OF WYOMING

                                        2014 WY 71

                                                         APRIL TERM, A.D. 2014

                                                                   June 5, 2014

TIMOTHY S. TARVER and CAROLE A.
TARVER,

Appellants
(Petitioners),

v.
                                                     S-13-0171
CITY OF SHERIDAN BOARD OF
ADJUSTMENTS, ROBERT L. BERNARD
and BEVERLY D. BERNARD,

Appellees
(Respondents).

                     Appeal from the District Court of Sheridan County
                       The Honorable William J. Edelman, Judge

Representing Appellants:
       Timothy S. Tarver, Sheridan, Wyoming.

Representing Appellee City of Sheridan Board of Adjustments:
       Kevin K. Kessner, Sheridan, Wyoming. No appearance.

Representing Appellees Robert L. Bernard and Beverly D. Bernard:
       Christopher M. Wages of Goddard, Wages & Vogel, Buffalo, Wyoming.

Before KITE, C.J., and HILL, BURKE, DAVIS, and FOX, JJ.


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 typographical or other formal errors so correction may be made
before final publication in the permanent volume.
KITE, Chief Justice.

[¶1] Timothy S. and Carole A. Tarver appeal from the district court’s order affirming
the City of Sheridan Board of Adjustments’ (Board) 1 approval of Robert L. and Beverly
D. Bernards’ request for a special exemption to operate a bed and breakfast in an area
zoned residential. The Tarvers claim the Bernards’ application was barred by res
judicata, the Board was without authority to impose parking restrictions on the bed and
breakfast, and the bed and breakfast did not meet the requirements for a special
exemption to the zoning ordinances.

[¶2] We conclude the Bernards were not barred from filing a second application for a
special exemption, the Board acted within its authority when it conditioned the special
exemption and its decision allowing the special exemption with parking conditions is
supported by the record. We, therefore, affirm.

                                                  ISSUES

[¶3]      The salient issues presented in this case are:

       1.     Was the Bernards’ second application for a special exemption barred by res
judicata or collateral estoppel?

        2.    Did the Board act in excess of its authority by requiring parking restrictions
for the Bernards’ bed and breakfast?

      3.    Was the Board’s decision that the Bernards were entitled to a special
exemption for their bed and breakfast supported by substantial evidence and in
accordance with the law?2

                                                   FACTS



1
    The City of Sheridan did not appear in this appeal.
2
 The Bernards claim they are entitled to dismissal of the Tarvers’ appeal or a summary affirmance of the
district court’s order because the Tarvers violated W.R.A.P. 7.01 by failing to attach a copy of the district
court’s decision to their opening brief. Rule 7.01(j) requires the appellant to attach to the opening brief an
appendix with copies of the final judgment or order appealed. In an administrative case, the appellant
appeals the district court’s ruling, but we review the agency’s order. See Vogt v. State ex rel. Dept. of
Transp., 2013 WY 123, ¶ 12, 310 P.3d 899, 904 (Wyo. 2013). Thus, it is generally appropriate to attach
both of those documents. W.R.A.P. 1.03 gives this Court discretion to sanction any non-jurisdictional
error in a brief as we deem appropriate. In this case, the Tarvers’ failure to attach a copy of the district
court’s decision does not create an undue burden, and we decline the Bernards’ request to dismiss the
appeal or summarily affirm the district court’s decision.
                                                          1
[¶4] The procedural history of this case is complex. On March 24, 2011, the Bernards
filed their first application for a special exemption to operate a bed and breakfast in an
area of Sheridan, Wyoming which was zoned as an R-1 Residence District. As part of
the application process, they were required to give notice to neighbors within 300 feet of
the boundary of their property. The Tarvers live within the notification area and objected
to the Bernards’ application on several bases, including increased traffic and parking
issues.

[¶5] The Board held a hearing on April 14, 2011,3 and approved the Bernards’
application with several conditions, one being the Bernards had to submit an off-street
parking plan that met the approval of city staff prior to operation of the bed and breakfast.
The Tarvers filed a petition for review with the district court. While the appeal was
pending, the Bernards worked with the city staff to secure approval of their parking plan.
After engaging an attorney and an engineer, the Bernards finally obtained the city staff’s
approval of their parking plan on December 16, 2011.

[¶6] On January 13, 2012, the district court reversed the Board’s approval of the
Bernards’ special exemption application, finding the Board had not followed the proper
procedures in considering and granting the special exemption. The Bernards did not
appeal the district court’s decision.

[¶7] The Bernards filed a second application for a special exemption on January 25,
2012, and included the recently approved parking plan and a certificate of occupancy
confirming the bed and breakfast complied with all code requirements. The Tarvers
again objected, claiming the Bernards’ second application was barred by res judicata and,
even if it was not barred, the application should be denied because of the deleterious
effect of a bed and breakfast on the neighborhood.

3
 Although the Tarvers maintain the hearing on the Bernards’ first application was a contested case, it is
not clear from the record whether that hearing was a public hearing or a contested case hearing. See our
discussion of the differences between the types of administrative hearings in Northern Laramie Range
Foundation v. Converse County Bd. of County Comm’rs, 2012 WY 158, ¶¶ 10-20, 290 P.3d 1063, 1070-
73 (Wyo. 2012). See also Wyo. Stat. Ann. § 15-1-606 (indicating that boards of adjustment take action at
“board meetings”); Gilbert v. Bd. of County Comm’rs of Park County, 2010 WY 68, 232 P.3d 17 (Wyo.
2010); Donaghy v. Bd. of Adjustment of City of Green River, 2002 WY 150, 55 P.3d 707 (Wyo. 2002);
Ebzery v. City of Sheridan, 982 P.2d 1251 (Wyo. 1999); Juroszek v. City of Sheridan Bd. of Adjustment,
948 P.2d 1370 (Wyo. 1997); and Cook v. Zoning Bd. of Adjustment for City of Laramie, 776 P.2d 181
(Wyo. 1989) for examples of different types of hearings on zoning matters.

         The Board held another hearing on the Bernards’ first application on August 11, 2011, after
which it issued more detailed findings of fact and conclusions of law. In its decision on the Tarvers’
petition for review of the Board’s decision on the Bernards’ first application, the district court ruled that
the Board did not have the authority to reconsider the April decision at the August hearing. See also
Rosenberger v. City of Casper Bd. of Adjustment, 765 P.2d 367 (Wyo. 1988) (discussing board’s
authority to rehear decision granting conditional use permit). In any event, the hearing on the Bernards’
second application, which is the subject of this appeal, was clearly a contested case hearing.
                                                     2
[¶8] The Board engaged a hearing officer to conduct a contested case hearing on the
matter. The hearing officer apparently determined that the Bernards’ application was not
barred by res judicata,4 and after a contested case hearing, the Board granted the
Bernards’ application on the condition that they record restrictive covenants
incorporating the approved parking plan. The Tarvers filed another petition for review
with the district court. The district court affirmed the Board’s decision, and the Tarvers
filed a timely notice of appeal with this Court.

                                STANDARD OF REVIEW

[¶9] Our review of the Board’s decision granting the Bernards a special exemption for
operation of their bed and breakfast is governed by Wyo. Stat. Ann. § 16-3-114(c)
(LexisNexis 2013):

              (c) To the extent necessary to make a decision and when
              presented, the reviewing court shall decide all relevant
              questions of law, interpret constitutional and statutory
              provisions, and determine the meaning or applicability of the
              terms of an agency action. In making the following
              determinations, the court shall review the whole record or
              those parts of it cited by a party and due account shall be
              taken of the rule of prejudicial error. The reviewing court
              shall:

                (i) Compel agency action             unlawfully    withheld    or
              unreasonably delayed; and

                (ii) Hold 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;

                   (B) Contrary to constitutional right, power, privilege or
              immunity;

                      (C) In excess of statutory jurisdiction, authority or
              limitations or lacking statutory right;


4
  The record does not contain an order denying the Tarvers’ motion to dismiss on the basis of res
judicata; however, the circumstances indicate their motion was denied.
                                               3
                     (D) Without observance of procedure required by law;
              or

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

Specific aspects of the standard of review will be set out in the discussion of the issues,
below.

                                          DISCUSSION

       A. Res Judicata/Collateral Estoppel

[¶10] The application of preclusion doctrines such as res judicata and/or collateral
estoppel involves questions of law. Goodman v. Voss, 2011 WY 33, ¶ 23, 248 P.3d 1120,
1127 (Wyo. 2011). We review an agency’s conclusions of law de novo and affirm only if
the agency’s conclusions are in accordance with the law. Moss v. State ex rel. Wyo.
Workers’ Safety & Comp. Div., 2010 WY 66, ¶ 11, 232 P.3d 1, 4 (Wyo. 2010); Dale v. S
& S Builders, LLC, 2008 WY 84, ¶ 22, 188 P.3d 554, 561 (Wyo. 2008).

[¶11] In general, preclusion concepts apply to land use and zoning decisions. 101A
C.J.S. Zoning & Land Planning § 279 (2014). See also Hilltop Terrace Homeowner’s
Ass’n v. Island County, 891 P.2d 29, 35 (Wash. 1995) (en banc); Joelson v. City of
Casper, 676 P.2d 570 (Wyo. 1984). Res judicata bars litigation of previously litigated
claims or causes of action; collateral estoppel prohibits re-litigation of formerly litigated
issues. Given the limited authority of governmental agencies, collateral estoppel is often
more appropriate for application in the administrative context. Tenorio v. State ex rel.
Wyo. Workers’ Comp. Div., 931 P.2d 234, 238 (Wyo. 1997).

[¶12] The factors considered in applying collateral estoppel include:

              (1) whether the issue decided in the prior adjudication was
              identical with the issue presented in the present action; (2)
              whether the prior adjudication resulted in a judgment on the
              merits; (3) whether the party against whom collateral estoppel
              is asserted was a party or in privity with a party to the prior
              adjudication; and (4) whether the party against whom
              collateral estoppel is asserted had a full and fair opportunity
              to litigate the issue in the prior proceeding.

Kahrs v. Bd. of Trustees for Platte County School Dist. No. 1, 901 P.2d 404, 406 (Wyo.
1995), quoting Slavens v. Bd. of County Comm’rs for Uinta County, 854 P.2d 683, 686

                                             4
(Wyo. 1993) (emphasis in original). The factors for application of res judicata are
similar:

              Four factors are examined to determine whether the doctrine
              of res judicata applies: (1) identity in parties; (2) identity in
              subject matter; (3) the issues are the same and relate to the
              subject matter; and (4) the capacities of the persons are
              identical in reference to both the subject matter and the issues
              between them.

Wyodak Resources Dev. Corp. v. Wyo. Dept. of Revenue, 2002 WY 181, ¶ 11, 60 P.3d
129, 135 (Wyo. 2002), quoting Eklund v. PRI Environmental, Inc., 2001 WY 55, ¶ 15,
25 P.3d 511, 517 (Wyo. 2001) (citation omitted). The two doctrines differ in that res
judicata bars claims that could have been brought in the first action even if they were not.
Stoneking v. Wheatland Rural Elec. Ass’n, 2003 WY 81, ¶ 11, 72 P.3d 272, 275-76
(Wyo. 2003).

[¶13] Although the decision of a zoning authority will generally be considered final and
identical subsequent applications are barred under principles of res judicata and/or
collateral estoppel, “res judicata will not prevent the approval of a second application
where the second application presents substantial changes from the first application.”
101A C.J.S. Zoning & Land Planning § 279. See also Hilltop Terrace, 891 P.2d at 35; In
re Woodstock Community Trust & Housing Vermont PRD, 60 A.3d 686, 692 (Vt. 2012).
Under those circumstances, the issues or subject matters presented in the two
administrative actions are not identical.

[¶14] In the case at bar, the Board approved the first application, but its decision was
reversed by the district court because the agency failed to comply with its own rules and
procedures. The general issues in the two administrative actions were the same, i.e.,
applications seeking approval of a special exemption for operation of a bed and breakfast
in a residential area. However, the second application differed from the first because it
included an approved parking plan and a certificate of occupancy.

[¶15] In addition, the district court’s reversal of the Board’s decision on the Bernards’
first application clearly was not a final judgment on the merits. The district court
explained its initial decision as follows:

                     22. The City of Sheridan Code governing the Board
              provides that the Board has the authority “[t]o hear and
              decide special exemptions to the terms of this ordinance upon
              which the board is required to pass.” Sheridan Municipal
              Code, Appendix A § 14.2. The city code further provides that


                                             5
        [i]n granting special exemptions, the board shall find
the following:

       (a)    The exemption requested is listed as an allowed
special exemption within the zoning district in which the
property is located.

       (b) The use is consistent with the goals, policies,
and recommended future land use of the adopted master plan.

        (c)   The granting of the exemption is in harmony
with the general purposes and intent of the ordinance and will
not be injurious to the neighborhood or otherwise detrimental
to the public welfare.

       23. The Board failed to make two of the three
findings required by the Sheridan Municipal Code when it
issued its order granting the Bernards’ exemption application.
According to the meeting minutes, Mr. Tarver addressed the
three findings that were required by the city code at the
hearing. Mr. Tarver indicated that he believed the first
finding, that the exemption was an allowed exemption within
its zoning district, had been met; however, Mr. Tarver also
indicated that the second two findings needed to be addressed
by the Board. Despite that, the record only reflects that the
Board made one of the required findings.

        24. The record before the Court is extremely
limited. The parties provided to the Court, and stipulated to
the accuracy of, the minutes from the April 14, 2011 hearing;
however, no verbatim record of the hearing was provided.
Based on the limited record that is before the Court, there is
no evidence that the Board made all three findings mandated
by § 14.2. The Board did find, as required under § 14.2(a),
that the exemption requested was a special exemption
allowed under the code. Thereafter, however, the Board
simply found that “granting the special exemption is not
contrary to the public interest, and is in harmony with the
spirit of the zoning ordinance, as long as the property owner
complies with other aspects of the zoning ordinance.” One
could only assume that finding was intended as a convenient
shorthand for the proposition that “[t]he use is consistent with
the goals, policies, and recommended future land use of the

                               6
             adopted master plan” (the finding required by § 14.2(b)) and
             that “[t]he granting of the exemption is in harmony with the
             general purposes and intent of the ordinance and will not be
             injurious to the neighborhood or otherwise detrimental to the
             public welfare” (the finding required by § 14.2(c)). . . . The
             Board’s finding falls short of the explicit requirements of the
             code. From the record before the Court, it is apparent that the
             Board failed to comply with the procedures required by the
             Sheridan Municipal Code because the Board failed to make
             the findings set forth in § 14.2 (b) and (c). Accordingly, the
             Board’s decision cannot be upheld. [footnote 2]

             [footnote 2 stated]: The Court further notes that given the
             limited record before the Court (including no verbatim record
             of the hearing, brief meeting minutes, and no other findings
             of fact or conclusions of law from the Board in support of its
             decision), there is no substantial evidence to support the three
             findings required by the municipal code. Because the Court
             concluded that the Board failed to comply with the
             procedures required by law, the court does not need to
             undertake a “substantial evidence” analysis, except to note
             that the lack of support in the record for the § 14.2 findings is
             a sufficient and independent ground for reversal.
                     ....

                     27. [T]he Board failed to follow its own procedure
             by failing to make the findings required by the Sheridan
             Municipal Code. Thus, the Board’s decision is reversible
             under W.S. § 16-3-114(c)(ii)(D) for failing to follow the
             procedures prescribed by law. Furthermore, given the scant
             record before the Court, there is no substantial evidence in the
             record to support the Board’s findings that the special
             exemption application should be granted.             If a new
             application for a special exemption were filed, it should be
             clear from the record for future review that required findings
             are made and substantiated.

[¶16] The district court’s decision was clearly based upon the Board’s failure to
follow the proper procedures and analyze the relevant legal questions. As such,
the district court did not reach a final decision on the merits. The Tarvers argue,
nonetheless, that the district court’s mention of a lack of substantial evidence in
the record finally decided the matter. The district court mentioned the inadequacy
of the factual evidence in the record, but its focus was on the lack of record

                                            7
altogether, rather than the lack of evidence within a sufficient record.

[¶17] It is also clear the district court did not consider its decision in that first appeal to
be a final decision on the merits. In Paragraph 27 of its decision, it specifically
mentioned the possibility of another application being filed and directed how the Board
should analyze it if that occurred. Considering the Tarvers’ argument that the Bernards
were barred from bringing a second application by the earlier ruling, the district court
stated:

                      The Court finds that res judicata is not applicable in
              the present case. The Court finds that due to the Board’s
              failure to follow its own rules and procedures during the first
              application process, the matter was not fully and fairly
              litigated in that proceeding. Penalizing an applicant for an
              agency’s failure to adhere to its own rules and procedures
              would be patently unfair, and, the ends of justice require that
              the Bernards be allowed to reapply and have their application
              be administered in the proper manner.

[¶18] We agree with both of the district court’s observations. The requisite issue was
not fully and fairly litigated and there was no final decision on the merits of the first
application. It would also be unfair to apply a preclusion doctrine against the Bernards
under the circumstances of this case because the agency erred in applying its own rules
and procedures. We have stated that one of the goals of res judicata is to “give, rather
than deny, justice.” Eklund v. Farmers Ins. Exchange, 2004 WY 24, ¶ 22, 86 P.3d 259,
265 (Wyo. 2004); Cermak v. Great West Cas. Co., 2 P.3d 1047, 1054 (Wyo. 2000). The
Bernards’ second application for a special exemption was not barred by res judicata or
collateral estoppel.

       B. The Board’s Authority to Condition a Special Exemption

[¶19] The Tarvers maintain that the Board did not have authority to impose any type of
parking restrictions on a property zoned R-1 Residence. This seems like a strange
argument for them to make, considering one of their objections to the bed and breakfast
was parking. However, their argument makes sense when considered in context. The
Tarvers assert the city staff concluded that allowing the bed and breakfast without
parking restrictions would be injurious to the neighborhood and R-1 zoning does not
allow any parking restrictions for existing structures. Thus, they argue, the Board was
without authority to impose parking restrictions and, without the restrictions, the
Bernards could not meet the requirements for a special exemption.

[¶20] As we noted in the standard of review section, above, an agency’s decision will be
held unlawful and set aside if it is “[i]n excess of statutory jurisdiction, authority or

                                              8
limitations or lacking statutory right.” Section 16-3-114(c)(ii)(C). See also Horse Creek
Conservation Dist v. State ex rel. Wyo. Attorney General, 2009 WY 143, ¶ 30, 221 P.3d
306, 316 (Wyo. 2009) (agencies can exercise only those powers authorized by statute).
Interpretation of statutes, administrative regulations and municipal ordinances is a matter
of law, which we review de novo. J & T Properties, LLC v. Gallagher, 2011 WY 112,
256 P.3d 522 (Wyo. 2011) (statutes); Laramie County Sheriff’s Dept. v. Cook, 2012 WY
47, 272 P.3d 966 (Wyo. 2012) (administrative regulations); Snake River Brewing Co. v.
Town of Jackson, 2002 WY 11, 39 P.3d 397 (Wyo. 2002) (municipal ordinances). To
interpret statutory language:

                 [T]he paramount consideration is to determine the
                 legislature’s intent, which must be ascertained initially
                 and primarily from the words used in the statute. We look
                 first to the plain and ordinary meaning of the words to
                 determine if the statute is ambiguous. A statute is clear
                 and unambiguous if its wording is such that reasonable
                 persons are able to agree on its meaning with consistency
                 and predictability. Conversely, a statute is ambiguous if it
                 is found to be vague or uncertain and subject to varying
                 interpretations. If we determine that a statute is clear and
                 unambiguous, we give effect to the plain language of the
                 statute.

              Dorr v. Smith, Keller & Associates, 2010 WY 120, ¶ 11, 238 P.3d
             549, 552 (Wyo.2010) (citation omitted).

Office of State Lands & Investments v. Mule Shoe Ranch, Inc., 2011 WY 68, ¶ 13, 252
P.3d 951, 954-55 (Wyo. 2011). All statutory provisions pertaining to the same subject
are considered in pari materia. Sorensen v. State Farm Auto. Ins. Co., 2010 WY 101, ¶
13, 234 P.3d 1233, 1237 (Wyo. 2010).

[¶21] Wyoming statutes give the governing body of any city or town the right to regulate
land use. Wyo. Stat. Ann. § 15-1-601 (LexisNexis 2013) states:

             (a) The governing body of any city or town, by ordinance,
             may:
                    (i) Regulate and restrict the:
                    (A) Height, number of stories and size of buildings and
             other structures;
                    (B) Percentage of lot that may be occupied;
                    (C) Size of yards, courts and other open spaces;
                    (D) Density of population; and
                    (E) Location and use of buildings, structures and land

                                            9
             for trade, industry, residence or other purposes.
                     (ii) Establish setback building lines.

             (b) The governing body may divide the city or town into
             districts of such number, shape and area as it deems
             necessary, and within those districts it may regulate and
             restrict the erection, construction, reconstruction, alteration,
             repair or use of buildings, structures or land.

             (c) Regulations may differ from one (1) district to another but
             shall be uniform for each class or kind of buildings within a
             district.

             (d) All regulations shall be made:
                     (i) In accordance with a comprehensive plan and
             designed to:
                       (A) Lessen congestion in the streets;
                       (B) Secure safety from fire, panic and other dangers;
                       (C) Promote health and general welfare;
                       (D) Provide adequate light and air;
                       (E) Prevent the overcrowding of land;
                       (F) Avoid undue concentration of population; and
                       (G) Facilitate adequate provisions for transportation,
             water, sewerage, schools, parks and other public
             requirements.
                     (ii) With reasonable consideration, among other things,
             of the character of the district and its peculiar suitability for
             particular uses;
                     (iii) With a view to conserving the value of buildings
             and encouraging the most appropriate use of land throughout
             the city or town; and
                     (iv) With consideration given to the historic integrity
             of certain neighborhoods or districts and a view to preserving,
             rehabilitating and maintaining historic properties and
             encouraging compatible uses within the neighborhoods or
             districts, but no regulation made to carry out the purposes of
             this paragraph is valid to the extent it constitutes an
             unconstitutional taking without compensation.

[¶22] Wyo. Stat. Ann. § 15-1-605 (LexisNexis 2013) directs the mayor, with the consent
of the governing body, to appoint a board of adjustment to govern land use decisions.
For our purposes, the board of adjustment has the statutory power to “[h]ear and decide
special exemptions to the terms of the ordinance upon which the board is required to pass

                                            10
under the ordinance[.]” Wyo. Stat. Ann. § 15-1-608(b)(i) (LexisNexis 2013). See
generally State of Wyo. ex rel. Epp v. Mayor of Dubois, 894 P.2d 590, 596 (Wyo. 1995)
(emphasizing the discretionary power of the board of adjustment in considering special
exemption requests).

[¶23] Consistent with its statutory authority, the Sheridan City Council adopted zoning
ordinances, appointed the Board, and adopted procedures for special exemptions.
Sheridan Zoning Ord. § 4.1 pertains to the R-1 Residence District, within which the
Bernard and Tarver properties are located:

                    4.1    R-1 Residence District.

                    A.      Use Regulations. The following uses shall be
             permitted:
                    1.      One-family dwelling.
                    2.      Public park, playground and fair grounds.
                    3.      Public library, museum and community
             building.
                    4.      Public and private school, elementary and high,
             college.
                    5.      Church or other place of worship. Parish house.
                    6.      Municipal, county, state or federal building,
             except for such uses as warehouse, garage or other uses
             customarily carried on as a business.
                    7.      Water supply reservoir, well, tower or filter bed.
                    8.      Telephone exchange where no public business
             office and no repair or storage facilities are maintained.
                    9.      Railway right of way not including railway
             yards. Passenger station.
                    10. Agriculture, gardening, and nursing for the
             propagation of plants.
                    11. Home occupations as defined herein.
                    12. Accessory buildings and uses customarily
             incidental to any of the above uses.

[¶24] Subsections B. and C. of § 4.1 set out height and area regulations for the R-1
Residence District. Subsection D. delineates the permissible special exemptions:

             D. Special Exemptions allowed within an R-1 Residence
                District:

                    1.     Bed and breakfast.
                    2.     Funeral home or mortuary.

                                            11
                    3.    Hospital, sanitarium, or clinic, not including
                 animal hospitals.
                    4.    Home for the children or aged.
                    5.    Offices offering professional services.

[¶25] The Board considers applications for special exemptions to the zoning ordinances
under Sheridan Zoning Ord. ¶ 14.2, which states in relevant part:

             2 . . . In granting special exemptions, the board shall find the
             following:

             (a) The exemption requested is listed as an allowed special
                 exemption within the zoning district in which the property
                 is located.
             (b) The use is consistent with the goals, policies, and
                 recommended future land use of the adopted master plan.
             (c) The granting of the exemption is in harmony with the
                 general purposes and intent of the ordinance and will not
                 be injurious to the neighborhood or otherwise detrimental
                 to the public welfare.

[¶26] The parties agree that there are no parking regulations specifically applicable to
existing structures in the R-1 Residence District or to special exemptions in the R-1
district. The question, therefore, is whether the board has the power to regulate parking
in order to ameliorate any injurious ramifications of a special exemption. The definition
of “special exemption” in the Sheridan City Ordinances, which we read in pari materia
with the list of special exemptions, provides an answer to this question.

                    Special Exemption. A special exemption is a certain
             use as listed in Sec. 4.1 [the R-1 Residence District] . . . of
             this code which may be harmonious under special conditions
             and in specific locations within a zone, but may not be
             allowed under the general conditions of the zone as stated in
             this code. A special exemption must be authorized by the
             Board of Adjustment after appropriate findings.

Sheridan Zoning Ord. § 2 (revised by Sheridan Ord. No. 1812) (emphasis added). In
Northern Laramie, ¶ 76, 290 P.3d at 1088, we stated that the agency had the power to
impose special conditions on an industrial siting permit because the relevant statutes
referenced such power. The same rationale applies here. Given that the ordinance
defining special exemption refers to special conditions, the Board is entitled to impose
appropriate conditions.


                                           12
[¶27] Parking is undoubtedly something which is within the power of the City Council
and Board of Adjustments to regulate. In fact, there are other provisions of the
ordinances which specifically address parking requirements. See, e.g., Sheridan Zoning
Ord. §§ 10.16; Sheridan Ord. No. 826. It is true that the R-1 Residence District rules do
not impose any parking requirements on existing structures. However, the very nature of
a special exemption is to allow a use that technically is not permitted by the general
zoning laws, provided the underlying goals of the zoning ordinances can be met with
specific terms of use. In Laramie River Cons. Council v. Industrial Siting Council, 588
P.2d 1241, 1255 (Wyo. 1978), we approved the Industrial Siting Council’s use of
conditions in a permit as “an appropriate way to resolve certain areas in which absent
such a commitment the [ISC] might be concerned as to the potential for injury to the
inhabitants . . .”. Given the ordinances allow special exemptions to be conditioned and
parking is within the purview of zoning authorities, we conclude the Board had the power
to impose parking restrictions on the Bernards’ bed and breakfast as a condition of
granting the special exemption.

          C. Compliance with Requirements for Granting a Special Exemption

[¶28] The Tarvers claim the Board erred when it concluded the Bernards’ application
complied with the requirements for granting a special exemption. The substantial
evidence standard of review applies to the agency’s evidentiary determinations after a
contested case hearing.

             When the burdened party prevailed before the agency, we
             will determine if substantial evidence exists to support the
             finding for that party by considering whether there is relevant
             evidence in the entire record which a reasonable mind might
             accept in support of the agency’s conclusions. . . . If, in the
             course of its decision making process, the agency disregards
             certain evidence and explains its reasons for doing so based
             upon determinations of credibility or other factors contained
             in the record, its decision will be sustainable under the
             substantial evidence test. Importantly, our review of any
             particular decision turns not on whether we agree with the
             outcome, but on whether the agency could reasonably
             conclude as it did, based on all the evidence before it.

 Dale, ¶ 22, 188 P.3d at 561. The agency’s conclusions of law are, of course, subject to
de novo review. Id., ¶ 26, 188 P.3d at 561-62.

[¶29] As we stated in Paragraph 25, above, the Board must make three findings in order
to grant a special exemption. The first requirement is that the exemption is allowed
within the zoning district. Sheridan Zoning Ord. § 14.2(a). There is no question this

                                           13
requirement was satisfied because a bed and breakfast is listed as an allowed special
exemption in the R-1 Residence District. Sheridan Zoning Ord. § 4.1(D).

[¶30] The second requisite finding is “[t]he use is consistent with the goals, policies, and
recommended future land use of the adopted master plan.” Sheridan Zoning Ord. §
14.2(b). Wyo. Stat. Ann. § 15-1-501 et seq. (LexisNexis 2013) directs the planning
commissions of municipalities to adopt master plans for the physical development of the
municipalities. The master plans must include, among other things, zoning plans for
regulation of the use of private and public structures. Wyo. Stat. Ann. § 15-1-503(a)(v)
(LexisNexis 2013).

[¶31] The City of Sheridan adopted a master plan in 2001 entitled “Vision 2020
Sheridan County Growth Management Plan.” The master plan includes three themes,
each of which includes goals and implementation strategies. The three themes are:

               Theme 1. Maintain a community character that preserves
                the quality of life, values and traditions of the area.

               Theme 2. Enable planned growth throughout Sheridan
                County.

               Theme 3. Initiate guidelines and standards to achieve
                predictable and consistent land use and development.

[¶32] The Tarvers seem to concede that the Board’s decision properly found that the
Bernards’ application met Theme 1, and they state in their brief that Theme 3 is not
relevant to this dispute. They claim, however, there is no evidence the Bernards’ bed and
breakfast complies with Theme 2 of the master plan. They direct us to Goal B of Theme
2, which states:

                    Goal B.        Plan     for    Orderly     Commercia[l]
              Development

                     BACKGROUND

                     It is recognized that as the population of Sheridan
              grows, additional commercial and industrial locations will be
              required. Commercial centers that are compatible with the
              character of the area are the desired configuration of new
              commercial development. . . .

The relevant implementation strategies state:

                                            14
             2.B.1 Access to commercial development should be
             carefully planned and controlled to make the most efficient
             use of public street and road improvements and reduce
             conflicts.

             2.B.4 The encroachment of commercial establishments into
             residential areas and the growth of shallow strip commercial
             development should be discouraged, while recognizing that
             certain types of commercial uses must be located with good
             accessibility to major highways.

The Tarvers argue that because the “recommended future land use” in the master plan
discourages the encroachment of commercial establishments in residential areas, the
Bernards’ bed and breakfast cannot be allowed in the area zoned as an R-1 Residence
District.

[¶33] The Board responded to the Tarvers’ argument in its order:

             5.     In arguing that a bed and breakfast is inconsistent with
             the master plan, the Tarvers[] argue that the master plan
             provides in relevant part that “The encroachment of
             commercial establishments into residential areas . . . should
             be discouraged” and that the Bernards’ bed and breakfast is
             by definition “commercial development” because it is a
             building where services are delivered. The Board believes
             differently.

                     The master plan only provides that encroachment of
             commercial establishments should be “discouraged,” not
             restricted or completely limited. By virtue of the fact that the
             ordinances allow limited exemptions to R-1 Residential
             District neighborhoods, the Board can only conclude that
             while commercial development in an R-1 area is discouraged,
             it is not [altogether] restricted and should be allowed in
             certain limited exceptions. It is also notable that, of the
             allowed exemptions in an R-1 Residential District (i.e. funeral
             home or mortuary, hospitals, sanitarium, or clinic, not
             including animal hospital, home for the children or aged,
             offices . . . offering professional services), a bed and breakfast
             is arguably the least commercial.




                                            15
[¶34] Bed and breakfast is defined in the Sheridan ordinances as “[a] service of
providing lodging with breakfast in exchange for payment in a residential dwelling.” A
bed and breakfast is unquestionably “commercial development” as that term is broadly
defined in the master plan as “all land and buildings where products, goods, or services
are delivered or rendered.”

[¶35] As the Tarvers point out, the master plan states that commercial development in R-
1 areas is discouraged. It does not, however, state that it is prohibited. Considering the
ordinances as a whole and in harmony with one another as required by our statutory
interpretation jurisprudence, it is clear the governing body did not intend to completely
ban bed and breakfasts in residential areas. The ordinances would not have listed bed and
breakfast as an allowed special exemption in the R-1 Residence District if it was
prohibited. Moreover, the very definition of a bed and breakfast as “lodging” within a
“residential dwelling” implies that it will be a type of commercial establishment located
within a residential zoning district. The Tarvers’ interpretation of the master plan’s
discouragement of commercial development in residential areas would convert the word
“discourage” into “prohibit.” That clearly was not the intent of the governing body when
it provided a specific process for approval of bed and breakfasts in the R-1 Residence
District.

[¶36] Robert Briggs, the planning director for the City of Sheridan, testified at the
contested case hearing about how restricted commercial development may be allowed
within an R-1 district while remaining consistent with the master plan:

                   Q.    And is it correct to say that Vision 2020 is not a
             zoning document?

                     A.     It is not a zoning document. It is a policy plan
             which makes recommendations regarding land use and
             development. It’s a zoning document in the sense that, as all
             land use and master plans have a connection to the City’s
             adopted zoning ordinance, that it should – that they should be
             consistent with each other and inform each other. The master
             plan is intended to create the philosophical basis or the
             community’s – a reflection of the community and what they’d
             like to see expressed in the zoning ordinance.

                    Q.     So I misspoke. Probably the more pointed
             question would be, it has no enforceable regulation in Vision
             2020. Is that correct?

                  A.    To my – no. It’s a policy document of
             recommendations. And there are elements of the code which

                                           16
require consistency with the plan. But in and of itself, it is
not a regulatory document.

       Q.      Have you been to the Bernards’ home, the
subject of this application?

       A.     I have.

       ....

      Q.     Aside from the site visit, you reviewed the
Vision 2020 plan in conjunction with this application. Is that
true?

       A.     That’s correct.

      Q.     What other materials did you review? Did you
review the application . . . ?

       A.     I did.

      Q.      What other materials did you review in forming
your analysis of the special exemption application?

       A.     I reviewed municipal code, in particular, the
sections relating to R-1 zoning, the Board of Adjustments’
approval of special exemptions and the definitions portion of
the zoning ordinance.      I also referenced professional
documents . . .
       ....

       Q.    And as to Requirement Number 2, which we’ve
discussed, the use is consistent with goals, policies and
recommended future land use as adopted in Vision 2020,
what was your analysis of this application for exemption in
conjunction with your review of Vision 2020?

       A.     Reviewing a special exemption in consideration
with this particular clause of City code is interesting in that
special exemptions are actually conditional uses. So you will
never find in an adopted plan – or, I would say it would be
extremely rare to find in an adopted plan something that
actually calls out an area, in particular for a specific special

                                17
             exemption. And so my purpose in reviewing this section was
             to review the goals and objectives of that plan which are
             pertinent and also to look at -- Vision 2020 does not contain
             a future land use map, per se. What it does is it contains an
             inventory of existing land uses, and then those policy goals
             and recommendations revolve around development within
             those existing land use categories.

                    So I first conducted a review of the various goals and
             objectives and settled on the most relevant, at least in my
             mind, goal of that plan, which was to ensure the compatibility
             of new development and redevelopment with community
             values and existing development. And in looking at that,
             what I first did – what I did is recognizing that, by virtue of
             being listed as an allowed use in an R-1 zoning district, that
             meant that, at least in the mind of the crafters of our zoning
             ordinance, that a bed and breakfast, if operated properly, it’s
             possible for that to be a use which is in harmony with the
             existing uses of an R-1 neighborhood.

                   And so that was kind of, I think, the general thrust of
             what I homed in on in terms of comparing it to the Vision
             2020 plan.

                  Q.     And so, essentially, it’s allowed as an
             exemption in the zoning, and thus, you believe it was
             compatible with the zoning to have a bed and breakfast,
             compatible with the Vision 2020?

                    A.     That’s correct.

[¶37] Mr. Briggs noted the master plan did not include a future use map, but his
testimony demonstrated that the city officials weighed the policies for community growth
set forth in the master plan with the requested special exemption, keeping in mind that the
use as a bed and breakfast would be outside the typical uses within the R-1 zoning
district. He explained how the special exemption criteria worked together to ensure that
any non-conforming use would not be detrimental to the neighborhood. Although he did
not use the precise language of Theme 2 of the master plan, there is no question that he
took into account the general discouragement of commercial development in residential
areas.

[¶38] Recognizing that commercial development is out of the ordinary in residential
areas, Mr. Briggs addressed the parking issues for the Bernards’ bed and breakfast to

                                             18
bring it into compliance with the third special exemption criterion, i.e. that it not be
injurious to the neighborhood. The Bernards were agreeable to entering into restrictive
covenants governing parking for their property, and the Board conditioned the special
exemption upon the recording of appropriate restrictions.

[¶39] The Tarvers also expressed concern that allowing the Bernards a special
exemption for a bed and breakfast would lead to “creeping commercialism” because the
Board would not be able to deny future requests for bed and breakfast establishments or
similar special exemptions. The Board addressed this argument as follows:

                    14. The Tarvers have argued that granting the
             Bernards’ application for a special exemption will create a
             precedent for other commercial establishments to move into
             the R-1 Residential District where the Bernards’ residence is
             located. This testimony is speculative and unsupported by
             any evidence contained in the record before this Board. The
             Board has discretion to grant or deny applications for special
             exemptions and will do so on a case-by-case basis given the
             merits of each application as they relate to the requirements
             for granting special exemptions. By granting the Bernards’
             application, the Board is in no way bound to grant future
             applications for a special exemption.

[¶40] Each application must meet all of the requirements set out in the ordinances for
granting a special exemption. As we stated earlier, the Board has discretion in granting
special exemptions. See Epp, 894 P.2d at 596. In conducting its discretionary analysis,
the Board may find that the fact a special exemption has already been granted in a
neighborhood weighs in favor of or against future applications for special exemptions.
The Tarvers have not demonstrated how allowing one special exemption would change
the nature of their neighborhood, leading to an influx of other nonconforming uses. In
addition, Mr. Bernard testified about the efforts they had made to keep the commercial
nature of their enterprise discrete, including inconspicuous signage, landscaping typical
of the rest of the neighborhood, etc.

[¶41] We conclude the record contains relevant evidence which a reasonable mind might
accept in support of the Board’s determination that the Bernards’ use of their property as
a bed and breakfast met the standards set out in the relevant statutes and city ordinances.
The Board’s finding that the Bernards’ bed and breakfast, with the parking restrictions,
was consistent with the City’s master plan is in accordance with law and supported by
substantial evidence. The Board properly applied its discretion in concluding the
Bernards were entitled to a special exemption, and we will not interfere with that
decision.


                                            19
[¶42] Affirmed.




                  20
