Voss v. Albany County Com'rs

• Decision Date: 14 August 2003
• Docket Number: No. 02-68, No. 02-101.
• Citation: 74 P.3d 714,2003 WY 94
• Parties: Mark and Laura VOSS, David and Virginia Macey, Appellants (Petitioners), v. ALBANY COUNTY COMMISSIONERS; Kim and Peter Stevens; Richard and Beverly Goodman, Appellees (Respondents). In The Matter of A Petition for A Private Road by Mark & Laura Voss: Kim and Peter Stevens, Appellants (Respondents/Cross-Petitioners), v. Mark and Laura Voss, Appellees (Petitioners), and The Albany County Board of County Commissioners, Appellees (Respondents).
• Court: Wyoming Supreme Court

74 P.3d 714

2003 WY 94

Mark and Laura VOSS, David and Virginia Macey, Appellants (Petitioners), v. ALBANY COUNTY COMMISSIONERS; Kim and Peter Stevens; Richard and Beverly Goodman, Appellees (Respondents).

In The Matter of A Petition for A Private Road by Mark & Laura Voss: Kim and Peter Stevens, Appellants (Respondents/Cross-Petitioners), v. Mark and Laura Voss, Appellees (Petitioners), and The Albany County Board of County Commissioners, Appellees (Respondents).

Nos. 02-68, 02-101.

Supreme Court of Wyoming.

August 14, 2003.

Mark and Laura Voss, Cheyenne, Wyoming; Don W. Riske of Riske & Arnold, P.C., Cheyenne, Wyoming, Representing Mark and Laura Voss and David and Virginia Macey.

Daniel B. Frank of Frank Law Office, P.C., Cheyenne, Wyoming, Representing Kim and Peter Stevens and Richard and Beverly Goodman.

No brief filed, Representing the Albany County Board of County Commissioners.

Before HILL, C.J., and GOLDEN, LEHMAN, and VOIGT, JJ., and PERRY, D.J.

GOLDEN, Justice.

[¶ 1] Mark and Laura Voss, with co-owners David and Virginia Macey, petitioned the Albany County Board of Commissioners (Board) to establish a private road across their neighbors' property, as authorized by Wyo. Stat. Ann. § 24-9-101 (Lexis 1999). The Board, following the administrative procedure outlined in the statute, established the road in a location other than that requested by the petitioners. The district court, finding that the Board erred in establishing a road that traversed federal property, reversed and remanded to the Board for the consideration of an alternate location for the road. The petitioners for the road and the respondents through whose land the road was established filed cross-appeals. We conclude that the district court's decision should be affirmed in part, reversed in part, and remanded to the Board.

ISSUES

[¶ 2] The petitioners for the private road assert the following issues:

1. Did the district court err in remanding this matter for a good faith determination, after affirming that the Board had jurisdiction to proceed pursuant to W.S. 24-9-101?

2. May the Board establish a private road beyond the general location of the road proposed by the applicant?

3. May the Board confirm actions of viewers that are in violation of W.S. 24-9-101 & 103?

4. May the Board delegate its duty to determine the ultimate fact of the reasonableness of the proposed road to the viewers?

5. May the Board establish an unreasonable and inconvenient road and fail to properly consider the reasonable road proposed?

6. May the Board modify the viewers' selection of a road?

7. May the Board establish a road that had not been marked pursuant to W.S. 24-9-101?

8. Did the Board err when it concluded that a determinable easement in gross constituted adequate legally enforceable access?

9. May the Board allow its counsel to participate as an advocate and de facto hearing officer in proceedings before the Board?

10. May the Board fail to enter its own findings and conclusions and fail to perform its duties as an agency?

In their cross-appeal, Respondents Kim and Peter Stevens present the issues as follows:

1. Does BLM land containing no restrictions on use by motor vehicle constitute a public road such that it is not a factor in determining whether a landowner's property is landlocked under W.S. § 24-9-101?

2. If crossing BLM land is a factor, does a Right of Way Grant issued by the BLM pursuant to the Federal Land Policy and Management Act, 43 U.S.C. § 1761 and the regulations at 43 C.F.R. Part 2800, which is for a term of 30 years and renewable, constitute "an outlet to, or connection with a public road" under W.S. § 24-9-101?

FACTS

[¶ 3] In 1996, Mark and Laura Voss purchased 151 acres of land near the Buford exit of Interstate Highway 80 in Albany County. Vosses and their predecessors in title usually accessed the property from the highway exit, first crossing land owned by Richard and Beverly Goodman, then proceeding upon the southern edge of the Stevens property, and finally across federal land managed by the Bureau of Land Management ("BLM"). This access route was referred to below as "the Highway-BLM Road." An alternative means of access is from the Crystal Lake Road, which is east of the Voss property and runs generally north and south from the Buford exit. This means of access required Vosses to travel westward from Crystal Lake Road across the Stevens property before reaching their own land. This "Creek Road" parallels South Crow Creek which effectively bisects the Stevens property but avoids the Goodman and BLM properties. The record shows both methods of access were used at times by Vosses and their predecessors in title, but no access easements were of record when Vosses purchased their land in 1996.

[¶ 4] For two years after purchasing the property Vosses attempted to secure easements from their neighbors in order to formally secure their property access. In June 1997, the Stevenses tendered to Vosses a restricted easement for their portion of the Highway-BLM Road, the restriction being that the easement would lapse if Vosses ever conveyed less than their entire 151-acre parcel. In December 1997, the BLM issued a "Right-of-Way Grant" to Vosses for the portion of the route that crossed BLM property. The grant is for a term of thirty years and is renewable if Vosses have not violated its terms at the time of renewal. In February 1998, the Goodmans delivered to Vosses an unrestricted easement over their portion of the Highway-BLM Road. This easement was recorded February 12, 1998.

[¶ 5] In March 1998, Vosses offered to purchase an unrestricted easement from the Stevenses for the Highway-BLM Road, as well as a separate easement for the Creek Road. Negotiations apparently broke down at that point. Although the timing of events is disputed by the parties, the precise chronology is not relevant to the issues. Vosses filed with the Board of County Commissioners a notice of intent to petition for a private road, while the Stevenses cut off Vosses' access to the Creek Road and recorded a copy of the restricted easement for Vosses' use of the Highway-BLM Road. Vosses then filed their petition for establishment of a private road in January 1999, claiming that their property was landlocked and seeking to establish the Creek Road as a private road across the Stevens property. Although the only property affected by the Creek Road is the Stevens property, Vosses also notified the Goodmans of the private road petition because Goodmans hold a mortgage on the Stevens property.

[¶ 6] The first hearing in the matter was held on March 2, 1999, following which the Board made no express factual findings but appointed viewers "to examine the various possibilities for access and determine the location of a private road according to the requirements set out by the Wyoming Statutes."¹ In an April 23, 1999, ruling on a motion by Vosses, the Board further instructed the viewers to "proceed to meet as required by statute to view and locate a private road and assess damages to be sustained thereby, and make a report thereof as required by law."

[¶ 7] The viewers met at the parties' property on May 11, 1999, visited separately with the Vosses and Stevenses, and submitted their report to the Board on June 29, 1999. They examined both the proposed Creek Road and the Highway-BLM Road. The viewers rejected the Creek Road and recommended that the private road be established substantially as the Highway-BLM Road existed, with one modification. The modification would be to move the right-of-way where it crossed the Goodman property, to keep it entirely on the Goodman property and avoid encroachment on the property of another landowner who had not been made a party to the proceeding. The Board conducted a hearing on August 2, 1999, at which the parties questioned the viewers and presented arguments to the Board. Following the filing and dismissal as unripe of several district court petitions for review, the Board issued an "Order Confirming Viewers Report" on March 7, 2000, directing the petitioners to prepare and file a formal plat of the modified Highway-BLM Road. The Board accepted the plat and issued its final order in the matter on April 17, 2001. The road established by the Board's order was the Highway-BLM Road, with a slight detour to avoid where the road encroached on property of an owner who had not been made a party to the proceeding.

[¶ 8] Petitioners and Respondents both petitioned for review of the Board's decision. The district court concluded that the matter should be remanded to the Board, ruling that the Highway-BLM Road did not provide the Vosses adequate legal access to their land because the BLM Right-of-Way Grant does not provide legally enforceable permanent access. The district court also instructed the Board on remand to make an express determination of Petitioners' good faith in bringing the petition in the first instance. Vosses appealed; Respondents Stevens and Goodman filed a cross-appeal.

STANDARD OF REVIEW

[¶ 9] Appellate review of administrative decisions is pursuant to Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2003):

(c) To the extent necessary to make a decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. 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:

(i) Compel agency action unlawfully withheld or unreasonably delayed; and

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

(A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;

(B) Contrary to constitutional right, power, privilege or immunity;

(C) In excess of statutory

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