IN THE MATTER OF THE APPLICATION FOR ESTABLISHMENT OF PRIVATE ROAD BY PRICE FAMILY TRUST of May 22, 1995, by and through its TRUSTEE, TED N. PRICE, SR., Appellant (Petitioner)
JUDY HUTCHINSON and WAYNE GARMAN and ROSS GARMAN, Appellees (Respondents)
Appeal from the District Court of Crook County. The Honorable Michael N. Deegan, Judge.
Representing Appellant: James R. Salisbury and Anthony M. Reyes of Riske & Salisbury, P.C., Cheyenne, WY. Argument by Mr. Salisbury.
Representing Appellees: James L. Edwards and Paul S. Phillips of Stevens, Edwards, Hallock, Carpenter & Phillips, P.C., Gillette, WY. Argument by Mr. Edwards.
Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.
[¶1] Appellant, the Price Family Trust, through its Trustee Ted N. Price Sr. (Price), filed an application for the establishment of a private road in 2011 after filing its first application in 2003. The district court affirmed the Crook County Board of Commissioners' decision to deny the application on the ground that Price has access to his property from at least two existing public roads. This appeal followed.
[¶2] Price presents four issues on appeal:
1. The failure of the Board to take and preserve a complete record of the proceedings, as required by Wyoming Statute § 16-3-107(o) and (p), rendered the proceedings to be without observance of procedures required by law as proscribed by Wyoming Statute § 16-3-114(c)(ii)(D).
2. The Hearing Officer violated Wyoming Statute § 16-3-107(k) and/or exceeded the powers of a hearing officer set forth in Wyoming Statute § 16-3-112(a) and (b).
3. The Orders entered by the Board are arbitrary, capricious, an abuse of discretion or otherwise not in accordance with applicable law as required by Wyoming Statute § 16-3-114(c)(ii)(A).
- The Board's failure to follow and adhere to the requirements of the Wyoming Administrative Procedures Act, Wyoming Statute § 16-3-101, et. seq. is per se arbitrary and capricious.
- The Board's Final Order, Conclusion of Law No. 1, is not in accordance with applicable law in holding that the doctrine of collateral estoppel barred [Price's] application for establishment of a private road.
- The Board's Final Order, Conclusion of Law No. 10, is not in accordance with applicable law in holding that County Road 58 is a " public road" for the purposes of Wyoming Statute § 24-9-101.
- The Board's Final Order, Conclusion of Law No. 9, is not in accordance with applicable law in holding that [Price] does not qualify under Wyoming Statute § 24-9-101 due to the State Easement.
4. The Orders entered by the Board are not supported by substantial evidence as required by Wyoming Statute § 16-3-114(c)(ii)(E).
- The Board's Findings, Section B, No. 3, that County Road 58 is a " public road" for the purposes of Wyoming Statute
§ 24-9-101 is not supported by substantial evidence.
- The Board's Findings, Section B, No. 4(d), that the State Easement is an " accessible road" from State Highway 14 to [Price's] property throughout the year is not supported by substantial evidence in the record.
The issues are restated by the Appellees as follows:
I. Whether the Crook County Board of County Commissioners (Board) committed reversible error by not having a court reporter transcribe the Board's first round of deliberations on Price's private road application and by losing part of the first round of deliberations due to a malfunction in the tape recording device.
II. Whether the Board erred in allowing its County Attorney to serve as hearing officer and provide legal advice to the Board on the application.
III. Whether the Board erred in ruling that the question of Price's access to a public road had been resolved by an earlier application and litigation of the question was therefore barred by the doctrine of collateral estoppel.
IV. Whether the Board's decision denying Price's private road application is supported by substantial evidence.
[¶3] On February 22, 2011, Ted N. Price, Sr. (Price) as Trustee of the Price Family Trust (the Trust) filed an application for the establishment of a private road pursuant to Wyo. Stat. Ann. § 24-9-101, et seq. Price asserted that his property had no outlet to or connection with a public road. More precisely, he contended in his application that County Road 58 in Crook County, Wyoming does not touch or enter his land and that the road is a mere cow trail that does not provide reasonable and convenient access because it is not used or maintained as a public road. Price also argued that State Highway 14 did not provide reasonable or convenient access. Instead of using those routes, his preferred route involved crossing Appellee Wayne Garman's land.
[¶4] Previously, Price had applied for the establishment of a private road in 2003. There, Price " admitted his land touches County Road easement number 58; (2) County Road 58 is a county road; and (3) County Road 58 enters Ted N. Price, Sr.'s property."
[¶5] Regarding the 2011 application, the Appellees herein objected. The Appellees argued that Price already had access to his property and thus did not qualify for a private road. Specifically, the Appellees argued that Price had at least three public access points from which to reach his land: (1) To the north, Price's land could be reached via County Road 58; (2) To the east, Price's land could be reached via Highway 196 -- Lytle Creek Road; and (3) To the southwest, Price had purchased an easement across the State of Wyoming's land that would permit Price to access State Highway 14. That easement starts at Highway 14 and continues to where it terminates at Price's property line. Members of the public use this easement to access the Price property, as invitees.
[¶6] After receiving the paperwork from both parties, the Crook County Board of County Commissioners appointed its county attorney, Joe M. Baron, as Hearing Officer. An immediate hearing was held to determine whether Price's application comported with the private road statutes and an evidentiary hearing was scheduled on the issue of access.
[¶7] On July 5, 2011, that evidentiary hearing was held. Mid-way through the hearing, after opening statements and after several witnesses gave testimony, the court
reporter's equipment malfunctioned and the hearing was continued to August 3, 2011. On that date the hearing concluded and the Board took the matter under advisement. The Board also directed the parties to submit proposed findings and conclusions, and the Board notified the parties that it would consider those proposals on September 6, 2011. The parties were also notified that they could appear by phone during the September 6 deliberative session.
[¶8] The September 6 deliberative session took place but without a court reporter. However, the county clerk used an audio recorder to record the proceedings. At the conclusion of the session the Board indicated it was inclined to deny the application and would have its order of denial reviewed by the Hearing Officer. The next day, on September 7, 2011, the Board learned that the recording device had malfunctioned part way through the deliberations. Over Price's objection, the Board scheduled a new round 4 of deliberations of October 4, 2011, which was continued without objection to December 6, 2011. The new round of deliberations was both digitally recorded and reported by a court reporter.
[¶9] On May 1, 2012, the Board issued its Findings of Fact, Conclusions of Law and Order Denying Application. The Board reasoned that Price already had access to his property from at least two existing public roads: County Road 58 and State Highway 14. The district court affirmed the Board's order, and this appeal followed. More facts will be elicited below as necessary.
STANDARD OF REVIEW
[¶10] The following standards generally govern our review of an administrative action:
The board's decision on an application for a private road under § 24-9-101 is subject to review under the Wyoming Administrative Procedures Act. In reviewing the board's decision, we stand in the same position as the district court, and our review is governed by the considerations specified in Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2005). Mayland v. Flitner, 2001 WY 69, ¶ 10, 28 P.3d 838, 843 (Wyo. 2001). Section 16-3-114(c) provides, in pertinent part:
(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:
. . . .
(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;
. . . .
(E) Unsupported by substantial evidence in a case reviewed on the record of an agency ...