Selway Homeowners Ass'n v. Cummings, 22492.

• Decision Date: 29 January 2003
• Docket Number: No. 22492.,22492.
• Citation: 2003 SD 11,657 N.W.2d 307
• Parties: SELWAY HOMEOWNERS ASSOCIATION, Plaintiff and Appellee, v. Faunille Fierro CUMMINGS, Defendant and Appellant. In re Denial of Petition for Vacation of Right-Of-Way From a Plat.
• Court: South Dakota Supreme Court

657 N.W.2d 307

2003 SD 11

SELWAY HOMEOWNERS ASSOCIATION, Plaintiff and Appellee, v. Faunille Fierro CUMMINGS, Defendant and Appellant.

In re Denial of Petition for Vacation of Right-Of-Way From a Plat.

No. 22492.

Supreme Court of South Dakota.

Argued January 14, 2003.

Decided January 29, 2003.

Lester Nies of Hood, Nies & Dardis, P.C., Spearfish, South Dakota, Attorneys for plaintiff and appellee.

Thomas E. Brady, Brady Pluimer, P.C., Spearfish, South Dakota, Attorney for defendant and appellant.

GILBERTSON, Chief Justice.

[¶ 1.] In 2001, the landowners of all developed lots in the Selway Estate Development in Lawrence County, filed a petition for declaratory judgment and to vacate a part of the subdivision plat depicting a "66' R.O.W. (FUTURE USE)." (See attached copy of plat). It is the legal status of this realty which is the subject of this appeal.

PROCEDURAL HISTORY

[¶ 2.] The Selway subdivision was developed by Pearco Partnership, which is made up of William Pearson, Pamela Cleveland and Faunille Fierro Cummings. The Pearco Partnership also owns the land adjacent to the Selway subdivision to the east, which would be connected to the Selway subdivision by this "future use right-of-way." The Lawrence County Commission denied the petition and the landowners appealed the decision to the circuit court. The circuit court reversed, holding that the realty was a private easement. The court then allowed parol evidence to determine the scope of the private easement. The circuit court held that William Pearson, acting as an agent for the Pearco Partnership, concealed material facts, and misrepresented the partnership's intentions with regards to property designated as a "future use right-of-way." The circuit court further held that the Pearco Partnership was equitably estopped from developing the "future use right-of-way" for anything other than an access road for fire protection purposes. Cummings appeals the circuit court's decision. We affirm.

FACTS

[¶ 3.] In 1986 the "Pearco Partnership" submitted a proposed plat to the Lawrence County Planning and Zoning Commission (Planning Commission). The plat proposed a residential subdivision located in Lawrence County, adjacent to U.S. Highway 14. The property was described as "Lots 1-12 of the Selway Estate Development." The Planning Commission approved the plat and submitted it to the Lawrence County Commission (County Commission) for approval, which the County Commission granted on April 9, 1986.

[¶ 4.] The plat contained a main road, running north/south, and extending from U.S. Highway 14 to the southern portion of the division, ending in a cul-de-sac. The plat described the main road as "Dedicated as 66' Public R.O.W." In addition to the main road, the plat left space for a second right-of-way, running east/west, located between lots 8 and 9, connecting the main road and the land adjacent to the east boundary of the Selway subdivision. The plat describes this additional right-of-way as "66' R.O.W. (FUTURE USE)."

[¶ 5.] The Pearco Partnership also owned the adjacent land to the east of the Selway subdivision, which would benefit substantially if the "future use right-of-way" were developed into a public road. The minutes from the Planning Commission meeting on April 7, 1986, state "[a] 66' R.O.W., reserved for future use, had been platted between Lots 8 and 9. The road would access the Pearco Partnership land to the east." However, the "future use right-of-way" was never used as a road, and instead has been described by the parties as a hay field.

[¶ 6.] Although the disputed property was clearly delineated on the plat, several of the Selway landowners testified that William Pearson (Pearson), one of the Pearco partners, told the landowners that this "future use right-of-way" was included on the plat so that the plat would be in compliance with forest service requirements. The landowners testified that Pearson indicated to them that the partnership had no intention of developing this property into a road, unless it was necessary to access water for fire protection purposes.¹ Robert McNeill, the owner of Lot 6 and former president of the Selway owners association, testified that a water tank was later built on Lot 6, and as a result the Selway landowners believed the stated purpose of a "future use right-of-way" was no longer needed. At least two of the Selway landowners testified that they relied on Pearson's statements when they purchased land in the subdivision, and one drilled a well near the "future use right-of-way" in reliance that the area would not be developed into a road.

[¶ 7.] The Selway landowners held meetings in February and March of 1987, at which time they discussed the "future use right-of-way." The Selway landowners voiced concerns that landowners to the east of the Selway subdivision could open it as a public right-of-way. The Selway landowners were informed at the March meeting that the disputed property could be vacated with a two-thirds vote by the Selway landowners. Pearson attended the March meeting and testified that he was "shocked" that the landowners believed they could vacate the "future use right of way" with a two-thirds vote. However, Pearson did not voice any objections, nor did he indicate that Pearco may try to open the "future use right-of-way" to access the Pearco land to the east of the Selway subdivision. Moreover, Pearson and the other members of the Pearco Partnership, including Faunille Fierro Cummings (Cummings), received the minutes to each of these meetings and the partners did not object, nor did they attempt to correct any misinformation contained in the minutes.

[¶ 8.] In 1991 and 1992, the Planning Commission and the County Commission approved plats designated as Tract 1 and Tract 2 submitted by the Pearco Partnership for land adjacent to the eastern border of the Selway subdivision. Tract 1 borders U.S. Highway 14 to the north and Tract 2 to the south. Tract 2 is located directly east of the Selway "future use right-of-way."² In 1992, the Planning Commission required that a 66 foot easement in Tract 1 be dedicated to the public as a public road. The easement gave Tract 1 access to U.S. Highway 14. With that correction, the re-plat was approved.

[¶ 9.] Cummings testified that she owns Tract 2 and has a residence there. She further stated that for future development of her tract, the best access to Highway 14 would be through the Selway subdivision, but she also acknowledged that she has access to the highway through Tract 1, which is owned by Pamela Cleveland, her sister and fellow Pearco Partner. Furthermore, Eric Birk, the Lawrence County Planning and Zoning Administrator since 1991, testified that there is no requirement that Selway have two access points.

[¶ 10.] In October 2001, the Selway landowners filed a petition with the County Commission, asking the commission to vacate the "future use right-of-way" pursuant to SDCL ch 11-3. The petition was signed by the owners of all developed lots (eleven) within the Selway subdivision. After a hearing, the County Commission denied the petition. Although the County Commission did not state a reason for the denial, it appears from the minutes and a tape recording of the hearing that the petition was denied in order to refer the issue to the circuit court.

[¶ 11.] In December 2001, the Selway landowners simultaneously filed an appeal of the County Commission's ruling, as well as a summons and complaint commencing a declaratory judgment action to ascertain the legal status of the future use right-of-way. These actions were consolidated and tried before the circuit court. After a hearing, the circuit court held that the disputed realty had not been dedicated to the public, and was therefore a private easement. The circuitcourt further held that the plat was ambiguous as to the intentions of the Pearco Partnership with regards to the "future use right-of-way." To clear up the ambiguity, the circuit court allowed the parties to present parol evidence so that the court could determine the extent of the private easement. Based on the parol evidence, the circuit court found that the Pearco Partnership had made material misrepresentations to the Selway landowners, and the Partnership was therefore estopped from developing the "future use right-of-way" for anything other than a road for fire protection purposes. The circuit court further held that the actions by the County Commission were arbitrary and capricious and the denial of the Selway landowner's petition was reversed and remanded. Finally, the court held that Cummings was not a "proprietor" for purposes of SDCL 11-3-23.1, and therefore the "future use right-of-way" could be vacated without concern of prejudice to her or the Pearco Partnership.

[¶ 12.] Cummings appeals, raising four issues:

1. Whether the depiction of a "66' R.O.W. (FUTURE USE)" on a plat constitutes an express dedication of a public right-of-way.

2. Whether parol evidence was properly received to interpret the intention of the developer with regards to the "66' R.O.W. (FUTURE USE)."

3. Whether either the County Commission or the circuit court has jurisdiction to vacate a dedicated right-of-way unless such vacation is accomplished by vacation of a plat and replacement of the vacated plat with a re-plat which is submitted to, and approved by the County pursuant to statute.

4. Whether the circuit court erred in determining that the County Commission acted arbitrarily and capriciously in denying the petition to vacate when the vacation authorized the closing of a public highway laid out according to law in violation of SDCL 11-3-23.1.

[¶ 13.] We affirm based on the first three Issues and as a result, need not address Issue 4.

STANDARD OF REVIEW

[¶ 14.] In the present case, Cummings failed to propose findings of fact and conclusions of law, and failed to object to the findings and conclusions proposed by Selway. Therefore, our review...