By Angus M. Thuermer Jr., WyoFile.com
A Legislative committee voted 6-3 Tuesday to recommend House passage of a bill that will strip counties of zoning authority over private schools.
The House Corporations, Elections & Political Subdivisions Committee recommended the full House pass SF49 – County zoning authority-private schools. The bill would enable the Foster Friess family to construct a new Jackson Hole Classical Academy campus in a rural zone in Teton County where county rules prohibit two large buildings the school wants to erect.
The Senate has already passed the bill. The measure now goes to the House floor for debate.
Debate in the committee centered on whether the proposed legislation amounts to Cheyenne overriding local control — or instead gives private schools the same leeway as public institutions, which largely escape county zoning and siting rules.
Reps. Andi Clifford (D-Riverton), Danny Eyre (R-Lyman), and Dan Furphy (R-Laramie) voted against the bill while the other six members of the committee, all Republicans, advanced it.
The bill “provides equality, and all we’re seeking is that a private school be treated similarly in land use … as a public school,” Steve Friess told the committee. He and his wife, Polly, operate the academy.
Friess also bemoaned “the hurdles that were placed in front of us,” which he called “alarming and completely unequal with the burdens placed on district schools.
“It was the process that killed us,” he said, stating that development approval in Teton County takes months and months. That left the Classical Academy, which is a Christian school and accepts students of all faiths, “no choice but to come here to Cheyenne.”
Freiss is the son of unsuccessful gubernatorial candidate Foster Friess, who said through a spokeswoman last year that he would use his platform and influence to promote legislation that would allow private schools “to enjoy the less restrictive zoning of government schools.”
Several others advanced the “level playing field” argument, including former U.S. Rep. Cynthia Lummis. She asserted that the Wyoming Constitution made public and private schools equal.
“The Constitution should be the governing document to which you turn to make your decision,” the former congresswoman told the committee. “The statutes [which authorize county zoning] are trumped by the Constitution.”
Rep. Andy Schwartz, (D-Jackson) told the committee that courts are meant to sort out what is constitutional and legal, not the Legislature. “We can have our opinions about constitutionality and that’s all they are,” Schwartz said.
State statutes authorize land-use regulations and that’s what Teton County has written, the former county commissioner said. The Teton County Commission refused a request by the Jackson Hole Classical Academy operators to amend county restrictions on building sizes in the rural zone, keeping the cap at 10,000 square feet. They authorized one county-wide change to zoning rules, as requested by academy operators, to allow educational institutions in the rural zone to begin operations at 7 a.m. instead of 9 a.m.
“They’re duly elected,” Schwartz said of commissioners, “and have done in essence what their constituents have asked them to do. They are accountable on a political level.”
A Wyoming attorney general’s opinion from the 1980s said that public schools can escape county siting overview, in part, because they are political subdivisions under the direct supervision of the Legislature.
“There’s a fundamental difference,” Schwartz said of private and public schools. “I think this is probably not good legislation for the state to impose.”
Along with Lummis, several state senators also testified in favor of both the school and the bill. Sen. Hank Coe, (R-Cody) told the House committee he felt the conflict was a fairness issue. “In this case, I don’t think the classical academy got treated fairly,” he said.
Sen. Eli Bebout (R-Riverton), the principal sponsor of the bill, echoed that sentiment and suggested classical academy students might be classless without legislative action. “We have this school with 150 kids that may not have a place to go to school,” Bebout told the House committee.
Teton County Schools Superintendent Gillian Chapman wrote lawmakers in January to tell them that was not the case. “If they closed, we would have space for their elementary students and there are so few middle and high school students, we would be able to accommodate them,” her Jan. 14 letter reads.
A Teton County school district trustee, the Wyoming Association of Municipalities and the Wyoming County Commissioners Association all also failed to sway a majority of committee members to reject the bill.
“The bill in its present form is not fair and it’s not level,” Trustee Janine Bay Teske told the committee. “It allows for a private school to locate itself in a community without any public process.”
Committee member Rep. Scott Clem (R-Gillette) asked Teske how much “they stand to gain” in state funds if the Teton County School District No. 1 enrolled the students from the academy. Teske said there would be no gain because the students come with the costs to educate them.
The vote to advance the bill came despite opposition also from the Wyoming County Commissioners Association. More than 70 percent of commissioners voting at the WCCA legislative convention in Cheyenne in late January opposed the bill, leading to the organization’s “strongly oppose” position on the measure.
“Throughout history Wyoming’s county commissioners have proved effective at regulating growth within their communities,” WCCA Executive Director Jerimiah Rieman told committee members.
“Wyoming’s county commissioners are not asking you to vote against the Jackson Hole Classical Academy, private schools or parents’ choice,” he said. “This bill is about who has the authority to plan land use in a county.”
Clem returned to the constitutional argument that schools must be treated equally. “It’s not necessarily state preemption,” he said of the bill. “it’s constitutional preemption, and I think that’s bigger than all of us.”
Clem, a cosponsor of the bill, has made clear in other debates this session that he thinks Teton County’s local officials are out of step with Wyoming.
“Sometimes we have people that are out of touch and out of line with the values of Wyoming,” he said during a debate of a bill aimed at restricting county authority to regulate subdivisions.
Lisa Johnson, a neighbor to the potential new campus and member of Friends of South Park, a group of Teton County residents who oppose the bill, said counties should retain zoning authority because they are responsible for providing essential public services.
“I do believe that local governments are responsible for the cost of infrastructure and that’s why they should be involved in the planning process,” she said.
Committee member Rep. Shelly Duncan (R-Lingle) characterized some Teton County zoning rules as “overreach” and suggested others may violate state statutes. Before casting her vote, she told the committee her “yes” vote was to ensure the bill gets a debate on the House floor.
The bill sets some limits on schools that would qualify for zoning exemption, including that they be owned and operated by a nonprofit, have 50 students or more and that buildings be certified by an engineer or architect as substantially meeting state School Facility Commission guidelines.