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.

City’s refusal to maintain private roads does not violate Wisconsin statute

by Gary Taylor

Pheasant Run Condominium Homes Association, et al. v. City of Brookfield
(Wisconsin Court of Appeals, January 26, 2011)

Pheasant Run Condominium Homes Association and three other condominium associations claimed that the city of Brookfield violated Wis. Stat. § 703.27(2) and their rights to equal protection under the Wisconsin Constitution by treating condominium owners differently from other multifamily property owners, to their detriment, by refusing to plow, maintain or repair the private roads in their condominium developments.  Wis. Stat. § 703.27(2) provides that “[n]o county, city, or other jurisdiction may enact any law, ordinance, or regulation that would impose a greater burden or restriction on a condominium or provide a lower level of services to a condominium than would be imposed or provided if the condominium were under a different form of ownership.”

The Court of Appeals found that the condominium homeowners associations’ claims failed.  The developers of each of these condominium associations had made it public record that the condominiums would be developed utilizing private roads and that maintenance of those roads would be the responsibility of their respective associations.  In each instance, the developers, not the City, chose to utilize the City’s zoning code, which allows for private roads with shorter setbacks from the road to maximize development of the property.  The shorter the setback from the building to the street, the more units a developer can build on the property.  The condominium associations’ homeowners have benefitted from the use of private roads:  if the condominium developments were built with public roads, the developer for each of the developments could not have built as many units on the property as it did, and thus the cost per unit upon purchase almost certainly would have increased.  As a tradeoff, however, the City’s longstanding policy is that it maintains public roads and does not maintain private roads.  The record demonstrated that it does so regardless of what kind of property is located on the roadway.  As such, the Court of Appeals found that the City has not enacted a law, ordinance or regulation in violation § 703.27(2).  The Court of Appeals stated that “while the City’s decision to treat private roads and public roads differently may be appalling to the condominium associations, it does not violate [the statute]”

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