Board of County Com'rs, Albany County v. Federer Development Co., 83-233

• Decision Date: 15 June 1984
• Docket Number: No. 83-233,83-233
• Parties: The BOARD OF COUNTY COMMISSIONERS, ALBANY COUNTY, Wyoming, Appellant (Defendant), v. FEDERER DEVELOPMENT COMPANY, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1062

682 P.2d 1062

The BOARD OF COUNTY COMMISSIONERS, ALBANY COUNTY, Wyoming, Appellant (Defendant), v. FEDERER DEVELOPMENT COMPANY, Appellee (Plaintiff).

No. 83-233.

Supreme Court of Wyoming.

June 15, 1984.

Karen Maurer, Albany County and Prosecuting Atty., Laramie, signed the brief on behalf of appellant; appellant's case was submitted on the brief.

Carole Shotwell, of Urbigkit, Whitehead, Zunker & Davidson, P.C., Cheyenne, signed the brief and appeared in oral argument on behalf of appellee.

Before ROONEY, C.J., and THOMAS, ROSE, BROWN and CARDINE, JJ.

ROONEY, Chief Justice.

Appellant refused to approve appellee's preliminary plat for a proposed subdivision to be located about fifteen miles east of Laramie for the reason that appellee failed to show two "adequate" legally enforceable ingress-egress roads to the subdivision as required under the Albany County Land Use Management System Regulations. On appeal, the district court ordered appellant to approve the plat, finding that the existence of the two roads had been demonstrated by substantial evidence. Appellant now appeals from the decision of the district court.

We affirm.

There is no contention that the subdivision is other than a "mountain subdivision" and that Section 13 of Chapter VIII of the Albany County Land Use Management System Regulations relative to Mountain Subdivisions is the regulation under which appellant refused approval of appellee's plat. It reads "Access. All subdivisions shall be platted so as to provide two (2) or more access roads for separate, multiple ingress-egress. Loop drives, with one entrance point, do not satisfy this need."

The single question, then, is whether or not substantial evidence exists in the record to reflect that ingress-egress access to the proposed subdivision will be provided by two separate roads. Stated another way, it is whether or not there is substantial evidence to support appellant's finding that such access was not provided.

" * * * 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:

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"(ii) Hold unlawful and set aside agency action, findings and conclusions found to be:

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"(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute." (Emphasis added.) Section 16-3-114(c), W.S.1977 (October 1982 Replacement).

See Board of Trustees of School District No. 4, Big Horn County v. Colwell, Wyo., 611 P.2d 427 (1980).

The evidence in this case consisted of testimony from three of appellee's witnesses and several documentary exhibits of appellee. Appellant did not present evidence other than that resulting from cross-examination of appellee's witnesses.

The proposed 680-acre subdivision is generally in the shape of a right triangle, with the hypotenuse being the southwest side and bordering on U.S. Highway Interstate 80. The north and east sides border on Medicine Bow National Forest Service land. As said by Judge Hanscum in his opinion-decision:

" * * * At issue in the present case are basically two roads that have been proposed by the Appellant to provide adequate access to the property; namely, the Blair Separation Interchange (hereinafter referred to as the 'Blair Road') and the Vedauwoo Interchange (hereinafter referred to as the 'Vedauwoo Access'). There is present access to the property by way of Blair Road; however, the Forest Service has indicated they would require an application for a special use permit to be filed with the Forest Service for increased use of the Blair Road in the event the subdivision was approved. Access to the property by way of the Vedauwoo Access would require a minor degree of construction by the developer if the plat was approved by the County Commissioners." (Transcript reference omitted.)

In his well written and well researched opinion-decision, District Judge Hanscum summarized the evidence with reference to the Blair Road as follows:

"The hearing officer found no legally enforceable means of access to the property even by way of Blair Road; however, taking the testimony given at the hearing as a whole, it appears that this is not the case.

"At the hearing John Anderson, a registered professional engineer and a registered land surveyor, testified that when the highway was constructed over the Etchepare (the previous owner before Federer Development Company) lands, the Blair Road relocation was 'constructed by the Highway Department via a permit which I think was granted using a special road in the lands owned by the U.S. Forest Service.' The Blair Road was originally constructed with the intention of providing permanent use of public access. Mr. Etchepare, the previous owner of the land in question, testified that the Blair Road was originally given by him to the United States Forest Service for easement rhough [sic] his land to Forest Service lands. It seems incongruous then at this point for the County Commissioners to rule that there is no legally enforceable means of access to the property when the Blair Road was originally given by the owners of that same property to the Forest Service to not only gain permanent public access to private lands but to the Forest Service lands as well. Furthermore, Ranger Terry Hoffman testified that there is existing access to the property via Blair Road and that the Forest Service would cooperate on a maintenance agreement for the road should the County Commissioners approve the use of the plat.

"It is further interesting to note that John Anderson, the professional engineer, testified that Blair Road actually provides two means of access to the property since it passes directly through the property and connects to other roads that are designated as all-weather roads within the forest region. The Albany County subdivision regulations do not define what is meant by the term 'access.' Therefore, it might be concluded that the Blair Road actually provides the required two accesses to the subdivision." (Transcript references omitted.)

We agree that Blair Road does supply two accesses to the subdivision. As indicated, infra, the two accesses are also legally enforceable. Appellant argues that the subdivision regulation requires two "access roads" and not merely two accesses. It contends Blair Road is a single road giving access to the subdivision. This argument fails when the meaning of the regulation is determined from the whole regulation and its purpose.

The most obvious purpose of the two-access requirement is to provide an alternate means of ingress and egress in the event one means is blocked for whatever reason. The regulation, in effect, says so. After setting forth the requirement for "two (2) or more access roads," it indicates the purpose, i.e., "for separate, multiple ingress-egress." Appellant may have been troubled by the fact that Blair Road runs only along the north leg of the triangle. The eastern acreage can access it only through other subdivision roads. However, such is not unusual in subdivisions, and it meets the regulation requirement.

The word "separate" in the regulation has pertinency. We mention it so that our holding here will not be unduly broadened in subsequent cases. If the two accesses were within a few feet of each other, it could be said that they were not "separate." Of course, other distances between the two accesses make the issue one of relativity. With the two accesses on Blair Road being about a mile apart, the conclusion that they are "separate" is obvious without more.

But appellant questions the legal enforceability of such accesses and of the access from the Vedauwoo Access. It argues that the Blair accesses

"[are] limited and increased use by commercial or subdivision activities would require an additional, cooperative maintenance agreement between the Forest Service and subdivider. * * * Appellee has a right of access from its land from the Blair Road, but its application to the Forest Service for a use permit specifically addressing its increased subdivision needs has not been acted upon by the Forest Service. * * * "

Appellant also emphasizes the fact that action by the Forest Service on the special use permit application for the Vedauwoo Access has not yet been taken. Accordingly, it argues that the...