Record did not support the level of inconvenience required to establish private road by necessity

by Hannah Dankbar and Gary Taylor

Price v Judy Hutchinson, Wayne Garman and Ross Garman
Wyoming Supreme Court, December 16, 2014

In February 2011 Price applied to establish a private road across Wayne Garman’s land under Wyo, Stat. Ann. §24-9-101 because his property had no outlet to a public road.  Price preferred the route crossing Garman’s land, but the Garmans argued that Price had three viable access points to public roads and therefore did not qualify for a private road. Price contended that County Road 58 in Crook County, Wyoming does not touch or enter his land, and that in any case the road is a cow trail that does not provide reasonable and convenient access because it is not used or maintained as a public road.  Furthermore, State Highway 14 also did not provide reasonable or convenient access. In summer and fall of 2011 the Crook County Board of Commissioners gathered evidence and tried to make their decision, but malfunctioning audio equipment led the Board to start the process over. On May 1, 2012 the Board denied Price’s application. The District Court upheld this order and an appeal followed.

Price argued that the Board failed to take an preserve a complete record of the proceedings, as required by state statute, when it failed to record the proceedings, and that therefore the orders resulting from those meetings should be reversed.  The court determined that the failure to record the meetings is a procedural failure according to this statute, but because the meetings immediately stopped when the technology failure was discovered, and the meetings were later reconvened with functioning equipment, there was no error or prejudice to Price.

Price questioned whether the Hearing Officer in this case provided legal opinions and advice to the Board violating Wyoming statutes. (Wyoming law allows for the appointment of a Hearing Officer to preside over a hearing to regulate the course of proceedings, receive evidence and address procedural questions). Wyo. Stat. Ann. §16-3-107(k) provides that a person serving as the hearing officer cannot be the representative of an agency  at a hearing of which the agency is a party, but the Board was never a party in this case, so this argument failed. Price argued that the County Attorney should not have been the Hearing Officer and that as such, he should not have offered legal opinion to the Board. Price’s arguments failed. Wyo. Stat. Ann. § 16-3-112(a) and (b) allow for the Hearing Officer to provide recommendations and advice.  It was clear from the record that the Board alone made the decision, and no bias or prejudice resulted from the County Attorney’s responses to the Board’s questions or his clarification of the issues.

Price claims that the Board’s findings were not supported by substantial evidence as required by Wyo. Stat. Ann. § 16-3-14(c)(ii)(E). The court disagreed. The Board gave multiple reasons why County Road 58 is a public road. At the hearing multiple people testified that they use County Road 58 to travel to and from Price’s residence. Just because another road would be more convenient for Price as an individual does not mean that the Board has to approve it.  “Necessity” as the showing required for condemnation of private property to provide access means that existing alternatives must be “obviously impractical and unreasonable.”  Price failed to carry this burden of proof.

To prove covenants were abandoned, landowner must show change to the neighborhood “of a radical and permanent nature” resulted from ignoring covenants

by Hannah Dankbar and Gary Taylor

Moore v Wolitich
Wyoming Supreme Court, January 15, 2015

The residents of Milatzo Subdivision in Cheyenne, Wyoming filed a complaint against Jennifer Moore who ran Silly Bear Daycare for operating a daycare out of her home in the subdivision. The district court found that the daycare violated the protective covenants of the subdivision. Moore appealed.

The covenants in question were adopted on June 27, 1979 and state: “[n]o lot shall be used except for residential purposes,” and that “[n]o residential lot shall be used as a business.” In September 2012 Jennifer Moore began operating Silly Bear Daycare out of her home that was purchased earlier in the year. In October 2012 multiple residents in the subdivision filed a complaint. The Moore’s did not contest the finding that they were running a business; rather, the Moores advanced two arguments on appeal: (1) that the covenants had been abandoned and were therefore unenforceable, and (2) that the activities of the other landowners left them with “unclean hands” and therefore unable to enforce the covenants.

Abandoned covenants.  Under Wyoming caselaw, to find that a covenant has been abandoned the violations of that covenant that have been acquiesced to by the subdivision’s landowners “must be so substantial as to support a finding that the usefulness of the covenant has been destroyed, or that the covenant has become valueless and onerous to the property owner.”  The abandoned covenants must also result in a change to the neighborhood “of a radical and permanent nature.”  To prove their point the Moores cited other covenant violations that take place in the subdivision, including numerous trailers, sheds, boats, unregistered vehicles and other items on various properties throughout the subdivision in violation of the covenants.  The Moores also pointed to a babysitting business and an identity theft victim assistance business being run from homes in the subdivision, as well as parking numerous business-associated vehicles and trailers at other homes.  The covenants also create a Building and Covenants Committee to resolve issues and violations, but the committee does not exist.

The Wyoming Supreme Court disagreed that these activities amounted to abandonment of the covenants.  The evidence presented at district court was that the other business activities were occasional or incidental, and not the type of substantial, routine, and permanent business activities that would change the nature of the neighborhood.  Moreover, the Moores failed to produce evidence concerning how long the trailers, sheds, and other items of concern had been present, or how they impacted the neighborhood in a way that was “so great, or so fundamental or radical as to neutralize the benefits of the restrictions to the point of defeating the purpose of the covenants.”

Doctrine of “unclean hands.”   The court found that the Moore’s were aware of the covenants when they bought the home and signed the covenants.  They did not consult an attorney or their neighbors in the subdivision to determine whether the covenants had been abandoned.  They were aware of the covenants and flagrantly ignored them by opening the daycare.  The Supreme Court affirmed the district court’s finding that the equities of the case weighed against the Moores for this reason.

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