Dislike the law? Lobby it to death

March 13, 2019

Rogue. Oppressive. Overzealous.

That is how politicians from Torrington to Gillette tagged Teton County commissioners before taking aim at, and in some cases, shooting down, local decisions.

“Historically, we’ve always had this paradox in Wyoming of, ‘We like local control, except when it doesn’t fit our ideology,’” said Sam Western, a Sheridan writer who studies trends in the northern Rockies.

The Legislature has always exerted its will over county finances, such as tightly controlling how and how much counties can tax, Western said, or setting county officials’ salaries. But what’s happening now is “relatively new, the fact that they’re encroaching now on policy.

“They want to micromanage,” Western said.

Legislative observers agree that the 2019 session zeroed in on Teton County with new intensity. But what’s up for debate is what’s attracting the heightened attention, with theories ranging from money to property rights to nationally driven polarization.

The exact number differs depending on who you ask, but during the 2019 Legislature’s 40-day session up to six bills were aimed at remedying Teton County grievances. Out-of-county lawmakers brought forward bills barring counties from regulating fences, affordable housing, livestock grazing, family subdivisions and private schools.

This session, “I certainly think you saw more of an emphasis on evaluating local control, particularly county control. I think it’s part of a larger trend that’s occurring across the country,” said Jerimiah Rieman, director of the Wyoming County Commissioners Association, which represents the interests of all the state’s county commissions. “Each of the issues that came up this year all have some genesis in Teton County.”

Fending off attacks on Teton County decisions often fell to Rep. Andy Schwartz, a Democrat now in his second term representing the county in the state House of Representatives.

“Nobody else out there has had to deal with this,” Schwartz told colleagues on the floor, noting that other counties didn’t face the same scrutiny.

Even so, bills that revoke local control in Teton County ultimately override decision-making authority for all counties in Wyoming.

Federal overreach opposed

Wyoming is historically loath to accept federal government overreach into state affairs. In this same session lawmakers approved a bill to protest a federal ruling prohibiting a grizzly bear hunt by encouraging the Wyoming Game and Fish Department to go ahead with a hunt anyway — a symbolic gesture that lawmakers acknowledged wouldn’t really be legal.

“In Wyoming we believe in local control, not state pre-emption or federal overreach,” Rieman said.

Wyoming isn’t alone. Nationally that’s a belief espoused since the birth of the United States, according to Lori Riverstone-Newell, a political scientist who focuses on conflicts between state and local governments.

“Since the nation was founded, we have supported these notions of localism,” Riverstone-Newell said. “The government closest to you is the government that’s best and the one that’s most interested in your personal needs. There’s something inherently democratic about that.”

Which is why it can seem hypocritical when state lawmakers interfere in town or county matters, according to Rep. Jim Roscoe, an Independent who represents parts of Teton, Sublette and Lincoln counties.

“It’s almost a plank of the Republican platform, that government closest to the people is the best government,” Roscoe said.

Municipalities in Wyoming, like the town of Jackson, have “home rule,” or the ability to independently self-govern and make rules. That’s why the Jackson Town Council can pass an ordinance banning plastic bags in city limits. But counties are technically an arm of the state, which means they can’t create policies unless the state specifically delegates authority to them.

It’s that structure, said Sen. Mike Gierau, D-Teton, that leads to an inevitable, consistent flow of bills tackling conflicts over county versus state control. Gierau doesn’t think Teton County is uniquely targeted by the Legislature, but rather cities and counties statewide bring conflicts before lawmakers all the time. For example, some in the city of Laramie protested that a bill to locate University of Wyoming dormitories invoked a debate over local control, he said.

“There’s a number of issues that come up during the course of the session that have to do with certain communities all over the state, all the time,” Gierau said.

Rep. Tyler Lindholm, R-Crook, Weston, agreed that all counties come with their own special legislative issues.

“I would argue that Crook County is much different from Uinta County, for example, as far as the things we hold near and dear,” Lindholm said.

Still, some say Teton County saw more bills than other areas in 2019.

“There is an imbalance there,” Roscoe said. “There were so many Teton County bills. They don’t treat them the same as they treat issues in other parts of the state. There’s sort of a joke, the expression that Teton County’s not part of Wyoming.”

Teton County is an outlier

Teton County’s small amount of private land, its demographics, culture and politics make it an “outlier,” said County Commissioner Luther Propst, who was elected in 2018.

“We’re more like Colorado,” Propst said. “Many people move to counties around Wyoming to get away from the kind of community we have here in Jackson and to get away from the kind of people we attract.”

County Commissioner Greg Epstein also sees Teton County as unlike other Wyoming counties.

“The way we raise revenue is the opposite end of the spectrum from the rest of the state. We are growing, a lot of the rest of the state is trying to retain citizens,” he said. “I don’t think the state legislators from other parts of the state truly understand the nuances and the dynamics of what it takes to be a citizen of Jackson Hole and Teton County and be a public servant trying to make this all work. We’re dealing with real urbanization issues in a fragile ecosystem.”

The commissioners say it’s this uniqueness that leads to more complex, and usually restrictive, land use regulations in Teton County. Legislators from other parts of the state — many of which have no zoning at all — see these regulations as overreach at best, and rogue or oppressive at worst.

Rep. Lindholm agreed that those regulations can seem “foreign” to some lawmakers, and the bills this session that emanated from Teton County are about “property and rights being treated equally across the board, across the state of Wyoming.”

Sen. Ogden Driskill, R-Crook, Campbell and Weston, said it “purely and truly” comes down to overreach. Maybe the Legislature isn’t overstepping its authority, but that the state is intervening because Teton County is overstepping its own authority as granted by the state.

“I’m a private landowner-rights person,” Driskill said. “And a lot of what’s happening in Teton County may be very popular to the public, but it’s an absolute affront to private property rights. Our constitution and our government was built on rights of individuals and rights of property owners.”

He said a county taking away property rights from ranching families, who have owned the land for decades, without compensation to the landowners, amounts to “basically communism.”

Although he said the Legislature generally isn’t the place to solve single-item issues, Driskill said Teton County has a pattern of pushing the limits with a blatant disregard for state laws. And the more Teton County “disingenuously” pushes the boundaries of the intent of state law, he said, the more bills there are likely to be reining in the county.

Rieman said the bills may arise out of a belief that Teton County’s regulations don’t conform to state values, and a fear that those regulations could spread to other areas of the state. Rep. Scott Clem, R-Campbell, implied as much in a hearing.

“Sometimes, we have people who are out of touch and out of line with the values of Wyoming,” Clem said during a hearing related to Teton County’s regulations for family subdivisions.

Rep. Shelly Duncan, R-Goshen, graduated from Jackson Hole High School. She introduced two of the bills perceived by some as attacks on “local control” in Teton County: one to allow family subdivisions, and the other to restrict affordable housing programs. Generally, Duncan said, local government is best and state intrusion should be a last resort to protect property owners. But in the cases of her bills, Duncan said she was concerned that local government overreach could spread across the state.

On the flip side, Riverstone-Newell said what could end up spreading are innovative solutions.

“If one local government passes a policy, and that policy seems to be working as a remedy for some kind of local problem, other localities will learn from that and they’ll adopt those policies as well,” she said.

Epstein acknowledged that some Teton County policies may be easily perceived as “overreach,” such as housing mitigation requirements, which he voted against last year.

“We need to maybe look a little more closely at some of the policies we’re creating and understand how do those affect private property rights a little bit more,” Epstein said.

Since the success of the private school zoning bill, County Commissioner Mark Barron commended the county board’s efforts to explore adding flexibility to its land use tools, like expanding the availability of “variances” granting special exceptions for development.

“Teton County has very strict land development regulations, and when people feel they’re not getting the ear or cooperation of their local government, they have access to the Legislature,” Barron said.

Proponents of the legislation often said the bills associated with Teton County weren’t about local control: They said the private school zoning bill, for example, was about ensuring school choice and a level playing field for private schools throughout the state.

Gierau said there were several bills related to Teton County land use this session because of the high stakes, and high values, associated with Teton County regulations these days. While parties used to be able to sit down together locally and work on compromises, now “everything in Teton County is a multimillion-dollar deal.” The sheer magnitude and value of private lands, and their neighbors’ lands, means high-stakes land use problems are increasingly being elevated to Cheyenne, Gierau said.

Schwartz agreed: “Part of what goes on here is just the value of property is so high that spending money to get legislation, it can be considered a good investment.”

Is it just us?

Jackson Hole may be an outlier in Wyoming, but it has something in common with other progressive communities in deep-red states in other parts of the country, according to political scientist Riverstone-Newell, who studies local governments at Illinois State University. State pre-emption of local government is on the rise everywhere, she said.

“Overall, there is a trend of states imposing a greater number of limitations on local decision-making and increasing the number and cost of unfunded mandates on county governments,” said Brian Namey, spokesman for the National Association of Counties.

Nashville, Tennessee, voters recently approved — by 59 percent of the vote — a measure to create a civilian-led oversight board to investigate officer misconduct in police shootings. Republican lawmakers introduced a bill this session to curb that board’s power. The Republican-dominated Texas Senate is reviewing a bill that would gut city of San Antonio nondiscrimination ordinances designed to protect the rights of LGBT citizens.

Riverstone-Newell said recent years have seen an uptick in tension between state and local governments, and in nearly every case it’s when a liberal or progressive community clashes with a Republican-dominated state. From her perspective, bills introduced targeting Teton County issues fit that mold.

“What could be more local than land use policy?” she asked.

“To have some kind of overarching state policy that removes choice means that it’s going to work for some localities but it won’t work for others,” Riverstone-Newell said. “That kind of flexibility reflects us as a people. It reflects our population differences.”

Nationally, Riverstone-Newell attributes the rise in state preemption to industry groups seeking state-level change (like the tobacco industry) and growing conservative control over state legislatures: 61 percent of state legislatures have both chambers controlled by Republicans, and 45 percent also have Republican governors. In these states, partisan polarization augments divisions between lawmakers who are “geographically and ideologically distant” from city interests.

Out-of-county legislators say they have nothing against Teton County. But Riverstone-Newell said conservative legislators could win points for supporting a crackdown on progressive Teton County policies, or for “being tough on a little liberal stronghold.” If you’re not being tough, in the context of an increasingly polarized, no-compromise national political climate, well, “you look like a weenie,” she said.

“These leaders have figured out a way to take liberal policy, progressive policy, and fit it within a larger dialogue that resonates within their own constituency, the dialogue or narrative of

freedom,” Riverstone-Newell said. That’s why we see talk of overreach and oppression.

Others say, however, that the Teton County bills in 2019 may not exactly fit that pattern, as the bills are often pushed by people in Teton County who are disgruntled with local decision-making and the outcomes of local elections. For example, the Jackson Hole Classical Academy appealed to legislators for a “fix” on private school zoning, and land use attorneys and ranchers appealed to Cheyenne legislators for help with the family subdivisions.

“The momentum’s coming out of Teton County,” Schwartz said, “It’s not like people around the state are looking to take us on.”

What happens now?

Rieman said counties’ local control fared OK when the Legislature adjourned.

While this year the focus may have been on Teton County, Schwartz expects that the success of bills like Senate File 49 will open the door to anyone — anywhere in the state — to approach the Legislature when they’re unhappy with a local decision.

“We’re actually putting up a sign almost, that says, ‘Open for business, come on down,’” Schwartz said.

Epstein agreed: “It may set a precedent that the next developer that comes into town that doesn’t get their preference, then goes to the state to get their preference,” he said.

And if bills superseding county control become a trend, it raises important questions about county authority. Why should someone join a local board, or run for office, or vote, if those decisions will be overridden? Grievances are better worked out locally or in the courts, Rieman said.

“The greatest fear for the commissioners is, at what point does a local issue erode their ability to manage and at what point do they become irrelevant in trying to deal with these issues, and at what point does the state take control and take it away from the closest people that helped develop these plans and zoning regulations that ultimately govern things,” Rieman said.

Propst said that in Teton County that’s already happened.

“Our comprehensive plan is now a relic of the past,” Propst said. “The state is defining growth in this community, to a significant degree. I think the commission and the council are going to have to look hard at ‘do we need to do a new comprehensive plan in response to new conditions on the ground?’ I lean toward, we do.”

At a joint retreat March 4, town and county elected officials agreed Jackson Hole needs to do a better job advocating for itself before the Legislature, and explaining its policies. For Propst it’s important to actively reach out to the rest of the state to explain “why we’re different.”

“It’s really incumbent upon us to explain to legislators why we have a housing mitigation program,” Propst said, “why we need fences that are different from other parts of the state, why it is challenging for somebody to build a private school at a site that busts open our comprehensive plan.”

This story has been updated to correct Brian Namey’s name. —Eds.