Proposed Solutions for Land Use Plan Issues and Tipi Retreat Allegations

After a very deep dive researching these issues, I have come up with these proposed solutions to address the issues at the root of the Tipi Retreat Land Use Change issue.

Photo by Shurie Scheel

I’m starting here with the conclusion of my article (Sorry Mr. Kay! I will say that you taught me better than that! I do cite my sources though, so maybe that will redeem me a little?) This article turned out as much more of a book in total length, and I hope that the proposed solutions are the thing that people really care about, so I want to get to them first, before you give up reading. The rest you can come back to if needed, for reference later, and digest a little at a time. A copy of this article will be submitted to the Land Use Planning Commission and the Hot Springs County Commissioners to use as they see fit. I hope they do at least take note of the proposed solutions that apply to them. You will read below to hear the reasoning behind these proposed solutions. Each is almost an entire article just on its own. Sorry for that in advance, but I wanted to provide enough information on each issue separately for you to make a decision about it, as a separate and unique issue.

PROPOSED SOLUTIONS (IN MY OPINION)

At the conclusion of much research and time invested (over 45 hours total), I believe that the following changes should be made to the Land Use Plan and the application process in order to address the judge’s, and I hope, the Stevens’ concerns:

1. Use the process outlined in Wyoming Administrative Procedure Act. W.S. 16-3-103 to adopt the definition you are using for the term “all weather” as an official part of the “Definitions” section of the plan, to avoid future confusion over what this means exactly.

2. Change the policy for Access Right-of-Way to read: “b. POLICY A10 – Access Right-of-way. If the developer proposes to utilize adjoining property for roadway access, a minimum access roadway right-of-way or easement of sixty (60) feet to the development shall be provided for all roads.” Striking the words “to the subdivision” and adding “for all roads” at the end would clarify which properties this policy applies to, and bring the policy into compliance to the way you are applying it. Even the judge pointed out though that 60 feet is very wide for a non-subdivision access road. It would be beneficial to see what other County’s have listed in their zoning requirements for commercial access road widths, as perhaps 40-50 feet wide would be sufficient for smaller commercial applicants with less expected traffic than a subdivision. This may require an additional policy to clarify the widths in different scenarios.

3. Add the “Absolute Policies Checklist” and the “Relative Policies Checklist” to the County website, so that people can access it and have it to use as a resource when going through this process.

4. Develop a “Quick Start Guide” to the Land Use Process and make publicly available on the website. It would serve as a starting point and give people advice about where to find the information they need at the beginning of this process, to save confusion for them down the road.

5. If you make a decision not to grant someone’s land use change request, give them the reasoning behind why that decision was made in the letter you mail to them and include copies of the checklists you used, so they can see how they scored. This will tell them what would have to change in order for you to approve it.

6. Add a Policy to the Land Use Plan that addresses adjoining property easements. I propose that the policy would read something like “When requesting a land use change for a property who’s only access is via easement across property owned by a third party/ies, applicant must provide a copy of an easement agreement with all applicable third party landowners that is in compliance with their requested usage of the easement.” This would add clarity. It would also serve to avoid issues with adjoining property owners.

Michael and Michelle Stevens, if you don’t think that these solutions go far enough, please elaborate on what you want the County to change to avoid future issues in other cases.

But, the County are not the only ones I think are at fault here. I do have opinions about solutions to the problem on the other side, but nothing that is based in fact. These are only my opinions, and the Stevens’ can choose to follow my advice or not.

MY OPINION: If the Stevens’ still want to have their business they have two options, as I see it. Either they can move to the other location I believe they have already scoped out and gotten approval to use, or they can continue to pursue this location. If they want to continue at this location, they also have two options. They can continue this case by appealing the judge’s ruling to the Wyoming Supreme Court (as the District Court Judge has made his ruling now and we are now just waiting to hear what his ruling is as to the fines he will impose on the Stevens’). I personally hope they appeal, because Wyoming needs the case law. But, they could also choose to start over with a new application. This application would most likely only be approved if they were able to either get a 60’ access road to the specified standards, or lobby the commissioners to remove or reduce this requirement from the Land Use Plan. If they want to widen the road to make it safer for their guests and the public to use, they could either pursue an easement with the neighbors, or purchase an additional 30’ next to the road from the neighbors to expand the road. Neither of these options is a perfect fit.

I call on the Stevens’ to remove the signs from around town that they still have up. This is my personal view: it would go a long way toward extending an olive branch in a show of good faith, to begin the healing process. I know it is a hard thing to do and won’t be easy for you. Yes, you have a right to your Freedom of Speech and I am not saying you don’t have the right to have the signs up- you absolutely do. But, just because you have the right doesn’t make it the best thing to do. I am asking this as a favor, to me personally. I am asking you to be the bigger people and prove to us that you have the community in your heart by taking down your signs. At the very least, a timeline of when we should expect you will be taking them down would be helpful.

I also call on the Stevens’ to remove or modify the claims listed on their Facebook posts, pages and websites that have been discredited if you are not able to provide further evidence to corroborate them. If they can not be proven, then it is “he said she said”. There is nothing good coming from having this inaccurate content written on the internet, if it can be reasonably construed to be misleading to the public. If you do not have hard evidence to back up a claim, I call on you to do the right thing and remove the claim or modify it as to make it based in fact. Alternatively, you should clearly state when something is an opinion, and not a fact. Another option available to me is to begin the process with Meta to have your Facebook page tagged or removed for having false and misleading statements portrayed there, and the same with the website hosting company. I don’t know if that will be a successful attempt, as only Meta and the host company can make that decision based on their internal company guidelines, but it is an action I can pursue.

If these actions go unheeded, or you don’t agree that they are reasonable, the final suggestion I have for this is to start a signature petition, using the same logic as the Stevens’ once used. The community members who are opposed to the way that this has been handled on your part so far should be able to negotiate with you to take the actions that I have requested here. If you could give me a number that would be very helpful. How many people would need to sign a petition in order for you to be enticed to remove your signs from around town? How many people would need to sign a petition in order for you to be enticed to remove the statements below that have been discredited, or are not verifiable, from your website and Facebook pages? I personally feel that the community deserves to have their voices heard too. I would like to have a way for us to come to a resolution on these issues, and these are the only ways I can think of. I am open to suggestions though, if someone else has better ideas for how we can move past this, and begin to heal as a community.

Opening: The Reasoning (OPINION)

Thanks to all who responded on Facebook to my many requests to be more specific, with less personal attacks and more facts to go back to. We did ultimately make some progress with facts being weighed, and I personally learned a lot from the sharing of that, thank you for sharing and leaning in to these uncomfortable situations. This has been an exercise of learning in public, which is difficult for all involved. In order to solve the underlying problems, we need to make changes. In order to make changes, we need to debate policy. In order to debate policy, we need to find out the facts about what went wrong from both perspectives, learn from it, and come up with solutions. I leaned in and got really curious about the Tipi Retreat lawsuit against the County. I spent a few hours in the Court House researching, and also researched online. I interviewed people to see if they could shed some light from their perspective. I have put in a lot of time researching and writing this- really more than I had to give. I hope that it provides perspective, and context. I understand that sometimes answering one question leads to another question. More questions about this case will most likely come out, and I can look into those as well, in time. I don’t intend this article to entirely be an opinion piece. I have tried to specify when it is an opinion and when it is a fact. But, I will also acknowledge that I am not an unbiased bystander. I encourage you to call out what I fail to be unbiased about, on either side, and I will try to do better. We need to grow from this and come back together as a community.

THE FACTS, AS BEST I CAN TELL

Where I Started

The Independent Record has been pretty impartial in their covering of the case. I encourage you to read or reread the most recent article, titled “Judge rules in favor of defendant in Tipi Retreat vs. county commissioners” published on May 9th, 2024, because there were things in there that I had forgotten in the time that has passed since it was first published, and it was a great refresher to get started.

The next thing I did was to research how we handle these cases now to see if I could get to the bottom of where things went off track. I started with a visit to the County Planner’s office. Les Culliton is the new County Planner, following Bo Bowman’s retirement. He was very helpful in explaining to me the process that a requested land use change must go through in order to be approved or denied. He also provided me with a copy of the rubric that the Commissioners use when making these decisions. Below is a blank copy of that document. He explained that each of the letter/numbers under the heading “Section” align with the part of the land use plan that spells out what the rules are in Chapter 6-Policies of the plan. The link below is the rubric they are currently using and a link to the Land Use Plan on the County’s website, so you can see the current rules for yourself. Please note that the document that is relevant to this case is the Absolute Policies Checklist, but I have also included the second rubric “Relative Policies Checklist” for your reference. (The scoring system for the “Relative Policies Checklist” is outlined in the plan.)

After that, I started researching specific allegations that have been in the public realm. I don’t want to rehash facts and history unless they are up for debate, so I won’t be retelling the whole story, only pulling out pieces. I dove into the weeds on some of these issues, to see if I could find out both sides’ arguments. I could not write about everything, and had to choose what to cover. I focused on the claims on the website SaveTheTipis.com, for the most part. Let me know if you want me to cover other issues that have been brought up in other locations, such as Facebook. Okay- here’s some of what I found.

Allegation: Phillip Scheel Committed Perjury

This allegation was made in a video that was posted in several locations on Facebook (link is below). The text that is shown in the video reads as follows. I did not request a copy of the court transcript for myself, but what is in the video appears to be accurate:

“Attorney: I mean yesterday, you said, though, that it impacted your family and all of the personal impacts and that’s why you’re seeking an injunction, didn’t you?

Phil: The damage it’s done to the community has affected every resident of Hot Springs County.

Attorney: It’s so personal for you, in fact, that you’ve actually gone into businesses and demanded that they take down Save the Tipi signs, haven’t you?

Phil: No, sir.

Attorney: You didn’t go into the Pit and ask Stevie Jellis to take down a sign because if she didn’t, it would have serious impacts to her business and yours?

Phil: No, sir.

Attorney: You went to Julia Schleusner next door at her equipment rental business and told her that she needed to take her sign down too, didn’t you?

Phil: No, I did not.

Attorney: You went to Cameron Burrows at his hardware store, told him he needed to take down his Save the Tipi sign because it was next to your business, didn’t you?

Phil: No.”

The video contradicts these answers with his answer to a question posed from an audience member but asked by Jean Skelton, during the Republican Party candidate debate before the primary election. They asked “Did you ever communicate with anyone about taking Save the Tipis down on personal property?” Phil’s one word answer to the question was “Yes.”

When discussing this with Phillip Scheel, my husband, he brought up that he answered the way he did in court (under oath) not because he didn’t talk to the mentioned individuals, but because he did not “demand” that they comply as stated in the first question. He maintains that he did ask Stevie Jellis to take down her sign, but he did not threat her that it would have “serious impacts to her business” if she didn’t. He maintains that he did talk to Cameron Burrows at the Hardware Store owned by Karen and Dennis Sinclair, but he did not say that he “needed” to take the sign down. He did talk to each of these individuals and request that they take the signs down. He claims that he was respectful in these conversations and tried to have an open dialogue with them about the topic. He claims that he did visit with each of them and request that they take the signs down, and has never claimed otherwise. No one asked for these specifics in court, as there were not follow-up questions, so he was not obligated to specify that in his answer to the court. He maintains that he is not guilty of perjury. I believe that the Stevens’ also believe this, because they were always very careful to put the word “allegedly” in front of this accusation, and I am assuming this is in order to avoid a libel lawsuit. I have heard from others through “word of mouth” that they also believe these conversations went the way Phillip Scheel is claiming. Some witnessed these conversations, while others heard different versions of these stories in the days following, but no one who I have been given permission to quote, so it is a moot point. For me this becomes a “he said, she said” issue. Phil maintains these conversations went one way, and these individuals maintain that it went another way, but neither side can prove which way it actually happened, as best I can tell.

Phillip Scheel also issued a public apology in the newspaper for this misunderstanding. It was published in the Independent Record newspaper on August 15th, as an advertisement. It reads “I can see now that, from their perspective, my directness could have been perceived as taking advantage of my position of power. That was not my intent. I apologize to those who felt wronged in this way.”

I believe it is also noteworthy that my understanding of the perjury statutes are very different now than they were when I began researching for this article. I thought that perjury just meant that someone lied under oath on the witness stand. It does not. If you also have this misconception, read Wyoming State Statute 6-5-301 and those surrounding it for further clarification of this law. Apparently, its only illegal to lie on the stand if what you are lying about is relevant to the case you are testifying about. In this case it is hard to tell if it is relevant to the case or not. A judge would have to rule on this point, I believe.

Allegation: Making New Rules

In his post titled “Further Harassment” on the Save The Tipi website, Michael Stevens writes “Around this time the county changed the land use plan to include wording that stated only 1 vacation rental was allowed by any landowner in the county without a land use change. (Making new rules while our case is pending legal closure).” I am not an attorney but I did do a little digging into this. I cannot find a Wyoming State Statute that makes it illegal to make changes to the Land Use Plan while it is under litigation. If one exists, please provide it. From my interviews, I concluded that the Land Use Plan was amended during this time to provide further clarity around the vacation rental policy, and was made because we had an increase in the number of vacation rentals in town, and the Land Use Planning Commission (LUPC) felt that the policy needed clarification around this issue. I can most likely dig further to find evidence of this from meeting minutes if needed, but because I don’t believe there is a rule against changing the policy during litigation, I will save time and not dig into it until needed.

Allegation: Commissioners are helping their friends, paying for neighbor’s legal council

I’m not entirely sure that is the point he is making when Michael Stevens also in the post titled “Further Harassment” on the Save the Tipi website when he writes “One of those neighbors, Marty Oravec hired his legal counsel from Cheynne to look into his options. Marty is very close friends with the County Commissioner Chairman, Tom Ryan. Magically, after months of crickets, following an APPROVAL from the Land Use and Planning Commission for our little tipi ranch Agri-tourism operation, this legal document was secretly brought before the commissioners, acted on with a cease-and-desist order, and ultimately the county commissioners hiring our neighbor's attorney to represent Hot Springs County, and the Commissioners against us! Our tax dollars are paying for our neighbor's legal counsel!” There’s a lot to unpack there. I will take it one statement at a time.

Oravac “looking into his options”

First, Marty has the right to hire an attorney for anything he wants to. I believe from reading the attached letter, linked below, that the motivation for this action on Marty’s part was to get an attorney’s opinion as to the legality of your business accessing the road running through his private property. His attorney in this letter is telling him that the attorney doesn’t believe that it is legal, and he gives his reasoning for that statement. In his opening, the attorney also recommends that Marty allow him to share the letter with the county planner and the commissioners. Which Marty apparently allowed, taking the advice of his attorney. This is not illegal or morally corrupt. Please provide further evidence of wrong doing, if you have it.

Commissioner is helping out his friend

Next let’s deal with Michael’s allegation that “Marty is very close friends with the County Commissioner Chairman, Tom Ryan.” Michael- please provide evidence to back up this statement, as it not verifiable information. The only thing I have to go on here is that Phil and I have also been “accused” of being very close friends with Tom and Liz Ryan, but I know that I have only been in their home once, ever, and that was for the People for People Christmas Tour of Homes (I have friends and family who will corroborate this testimony, on my behalf, if needed. My stepfather also owned a rival trucking company for many years, which is verifiable.) In conclusion, even if it is true that Marty and Tom are friends- which we have no evidence of here- it also stands to reason that many people are friends. This does not automatically mean wrongdoing. Michael- If you have further evidence to back up a claim of wrongdoing, please provide it.

Hiring Neighbor’s Attorney

I believe Michael’s next statement there- this part “ …ultimately the county commissioners hiring our neighbor's attorney to represent Hot Springs County, and the Commissioners against us! Our tax dollars are paying for our neighbor's legal counsel!” It is clear that the same attorneys that represented Mr. Oravac also represented the County. When asked why the commissioners and County Attorney chose the Budd-Falen Law Office, Phillip Scheel, my husband, responded that they chose the Budd-Falen Law Offices because those attorneys have a reputation for being the best attorneys in land use cases. He felt that it was a very specific specialization, and that Budd-Falen has a reputation for being the best among attorneys with this specialty. I then asked if they got the referral to use this attorney’s office from Marty Oravac, or from some other individual. Phil maintains that they were referred to those attorneys by other County Commissioners who they knew from other counties who had hired this law firm to defend their zoning or land use regulations. I also think it is noteworthy that by the time that the County made the motion to retain Budd-Falen Law Firm, the Stevens’ attorneys- Hathaway & Kunz, LLP had already been in contact with the County, so they felt the need to get their own outside council. It stands to reason that Hathaway & Kunz, LLP, who also have a very good reputation in this field, would have been perceived by the Commissioners as more of a threat than a local lawyer. It is possible, although not provable, that some of the Commissioner’s motivation in hiring those attorneys was to be ensure that the County was represented as well as possible to protect the County. I felt it was important to provide the other side here, for the readers information, but I don’t see that this claim is based in fact, so I don’t think we can consider it when making a decision either way. This accusation is speaking to motivation, and we can’t prove motivation.

County Paying For Neighbor’s Attorney

Ok- we are moving right along here! Next accusation- same section and references. Michael writes “ Our tax dollars are paying for our neighbor's legal counsel!” I am inferring here that what Michael actually means is that the ruling in favor of the county will stop the Tipi Retreat from being built in that location, which will get the neighbors what they want, and the county will have to pay for the attorneys to do that (which we just established were the same attorneys as the neighbor hired for himself.) Michael- if that is not a fair assessment of what you are alleging here, please let me know. To this modified allegation, I submit that yes, the county will have to pay the attorneys fees, if they do not get enough fine money from the Judge’s ruling to cover their costs. That is the next ruling we should expect to see from the Judge.

There are two other points I believe are relevant here. First, the County is always listed, on the court documents I saw, as the Defendant. I see no evidence that the County escalated this issue, if I am wrong, please provide evidence. It stands to reason that the County’s motivation for hiring an attorney was in response to the Stevens’ filing of a lawsuit. Second, it is common practice for a county or other government entity to hire outside council to represent them on a case by case basis. In fact, Wyoming State Statute 18-3-302-c guarantees the County’s right to do so. Jill Logan does not specialize in land use cases, so it stands to reason that the commissioners would hire attorneys that do. If you have evidence that contradicts this statement, please provide it. My conclusion is that because the county did not outright pay Marty Oravac’s legal fees, as the claim is suggesting, Michael’s statement here is false.

Allegation: Denial of Public Records Requests

In their article, on the Stevens’ Save the Tipi website dated “February 2nd, 2023”, the Stevens’ write “Today our attorney let us know that the elected County Attorney, Jill Logan, requested we personally be denied any further rights to ask for public government records. (It’s called Wyoming Public Records Act & Freedom of Information Act) We have been exercising this right to gather evidence necessary to support our case to Save The Tipis.”

This article posted on the Save the Tipis website does have a number of attachments, which were interesting, and the reader is directed there for the proof of this allegation, but the attachments did not corroborate the above claim. The first attachment is the cover letter to their signature petition, dated 1/15/23, which makes no reference to the public records issue. The last line states “The Tipi Retreat LLC hereby formally and legally requests to be added to the agenda on the February 21, 2023 County Commission Meeting Agenda to discuss the public’s concern as to the actions the Hot Springs County has taken against The Tipi Retreat LLC.”, which I believe is the part of the signature petition that the next letter attached is in response to.

The next attachment is titled “Jill Logan’s Legal Letter”. When I opened it up, it is a letter from Brandon Jensen, an attorney at Budd-Falen Law Offices dated 1/31/2023. He writes “Please advise your clients that the matter is currently in litigation and will not be addressed or discussed during the February 21st meeting.”

Brandon Jensen also writes in this letter “In addition, it has also come to our attention that Michael Stevens has made repeated requests for information from the county clerk’s office and the planning office, including appearing in person and filming the staff’s reaction. Mr. Stevens’ behavior is unnecessary and creates an uncomfortable situation for the county’s employees. Consequently, we respectfully request that any further requests for information from Mr. Stevens shall be submitted through our office and will be handled as appropriate.” I don’t think this is the statement that they are referring to above either, as Mr. Jensen never says they can’t make the requests from the county offices, but uses the term “respectfully request” to ask them not to.

The third attachment is titled “Formal Request Denial Form”. This link opens up a copy of a Public Records Request Form that was filled out by Michael Stevens on January 26th, 2023. It is hard to make out as it is a handwritten, but I believe it is Mr. Stevens requesting a copy of the recording of the Commissioners meeting on December 21st, 2021. There is a handwritten note on the bottom of the page, in the section titled “County Use Only” that I believe reads “Litigation Reference: Tipi Retreat versus Hot Springs County Commissioners in District Court of Hot Springs County per letter. Docket #2022-03.” The form is signed by Michael Stevens and was marked received January 26th, 2023 in the County Clerk’s office, with a note that reads “Thumb Drive returned unused to Michael Stevens 2/3/23.” And another note that reads “N/A- to be requested through Attny due to litigation.” This is not the proof referred to, because it never says that the request was denied. The County Clerk appears to have referred the request to the County Attorney’s office, as is standard practice for all matters under litigation. It appears that the County provided all documents and videos to Mr. Stevens as he was requesting, either to him personally, or to his attorneys to relay. I could not find a Wyoming State Statute prohibiting the County from relaying the information through an attorney. There is nothing on the form provided as proof to say that the County denied this request.

There are other allegations in this article on their website, but none that I found merited a deep dive here. If upon reading it, you are curious, let me know and I can research it.

Allegation: This is “personal” for commissioners

I am not sure why this one is being debated, as I don’t see this as an issue. It is okay for you to be offended or upset about something or take someone’s actions or comments personally. We can’t dictate the feelings of others, even if they are elected to an office. I believe the allegation here is not really that it is “personal”, but that those personal feelings are dictating the commissioner’s actions in a way that is biased. I have not seen proof of this, so I can’t weigh in here either way. Please provide evidence to corroborate these statements. This allegation was brought to my attention in a recent Facebook comment from Michelle Stevens (in response to a comment that I had made) that reads: “Are you actually willing to accept the witnesses and the documentation that shows that Tom Ryan has stated that it’s personal for him? Are you willing to talk to the people that overheard him at a reception say that the tipis would never see the light of day, that he was going to table us indefinitely? That was until we got a lawyer.” In answer to your question, yes, Michelle, I am willing to accept witnesses and documentation that shows this. Please be specific about which “witnesses” I need to interview. I would also request that you either provide a copy of the “documentation” so that everyone can read it, or point me in the direction of finding such documentation.

Allegation: Arbitrary and Capricious

I saved this allegation for last, as I felt it was a good conclusion to what I learned, as it is what the judge ruled. One of the issues that the judge was asked to rule on was whether or not the commissioners were acting fairly to the Stevens family during the application process, or if they were abusing their power. You can look up the definitions to these words for yourself, but that is my definition. Most of Michael’s post on the Save the Tipis website dated 5/2/24 (see below for link) was in response to the newspaper choosing not to cover this piece of the puzzle. I can’t speak to the way a reporter chooses to cover a story (nor did I ask them because I didn’t think that was the root problem here). I will say that it is common practice in journalism to limit the number of words in an article. There was a lot to cover in one article, with a lot of nuance.

Instead, I will try to uncover some of the underlying issues, as the judge did rule on whether or not he thought the commissioners were “arbitrary and capricious”. I trust the judge’s opinion as objective, and the Stevens family has this document in full on their website as well (link below). It is 21 pages of legal-eze, and takes a while to chew through, but it is written by the judge himself, and provides his reasons for taking the actions he did, so it is worth a read, if you can spare the time. Here are those links:

A few of the things I took note of as I read:

-This order is the most recent ruling, and is the second ruling the judge made on this. I didn’t get into the first ruling, as this ruling overrides anything done before, but I will get into this if someone requests I do so.

-The judge does find for the County overall, and upholds their decision to not grant the land use change, but he also points out some flaws in the county’s execution. I believe this is the fact that the Commissioners have been relying on when they claim that the Judge did not find them arbitrary and capricious overall.

- When the commissioners are applying the checklist, this is not a group homework assignment. Each person gets their own checklist and they don’t compare lists until everyone is finished.

-Commissioner Ryan failed their application on these policies: A10, A14, and A15.

-Commissioner Baird failed their application on these policies: A7, A10, A12, A14 and A17.

-Commissioner Scheel failed their application on these policies: A10, A15, and A27.

-Because they all three failed the application on policy A10, and policies A14 and A15 each had two out of three fail it, these are the reasons given for the failure. Policy A10 is Access Right-of-Way. Policy A14 is Road Construction Standards. Policy A15 is Internal Road Maintenance. We will get in the weeds more with this later.

- The policy states that a failure of any absolute policy leads to denial of a permit. When the commissioners were deciding, they failed the application on three policies total, so the application was denied.

-The judge allocates a considerable amount of time debating each policy as he is deciding whether or not the commissioners acted fairly and justly, so it is worth reading pages 11-20 to learn the reasons behind it. I will try to summarize here.

POLICY A10 Ruling on Arbitrary and Capricious

Policy A10 deals with the Access Right-of-Way Policy. As you can find above, this policy states: “If the developer proposes to utilize adjoining property for roadway access to the subdivision, a minimum access roadway right-of-way or easement of sixty (60) feet to the development shall be provided.”

I will highlight one paragraph, on page 16 of the Judge’s Order. The judge writes: “Policy A10 reads: This policy mentions a 60-ft. minimum ROW width for public subdivision roads, reflecting W.S. 18-5-301(a)(v)(B). Individual residential driveways are considered to be exempt from this requirement, and I have seen common driveway easements serving 1 to 3 residents with widths ranging from 20 to 40 feet in width.” And, another highlighted text, also on page 16: “Based on the foregoing, the Board unanimously agrees that the Stevens’ application fails Policy A10 because the access road to the property is much too narrow to meet the requirement of the policy. The policy requires a sixty (60) foot easement and this road, in accordance with the private road statute under which it was created (i.e. Wyo. Stat 24-9-101(h)) is restricted to a thirty (30) foot easement.

We read on page 17: “The Court will find and conclude that Policy A10 does not “require” a sixty-foot easement for a commercial development such as Tipi Retreat. The only type of development where the policy specifically requires a sixty-foot easement is subdivision development…” Later on page 17, he says that because the policy doesn’t specifically require the 60 foot wide road in this instance (because it isn’t a subdivision) the commissioners could have used this wiggle room to approve it if they wanted to, so later on page 17, he writes “The Court will find that the Board’s application of Policy A10 was arbitrary and capricious in its absolute requirement that the access road be sixty feet in width.”

POLICY A14 Ruling on Arbitrary and Capricious

From the Land Use Plan, “POLICY A14 – Road Construction Standards. All access roads to Federal, State or County roads and all public roads shall be constructed in conformance with the standards found in Chapter Seven of this Land Use Plan.” Because it is referring you to another chapter, you also have to go to Chapter Seven of the plan to find information on this one.

The judge concludes that this policy does apply to the Tipi Retreat. The issue here centers around traffic. The county had estimated 36 trips per day total and the judge uses other info to infer that the Stevens’ would estimate 24 trips per day total, but that does not include service vehicles such as trash or water trucks. On page 18, the judge writes “…the traffic impacts related to the development are not insignificant as properly set forth in the Board’s findings. Tipi Retreat did not submit information from a licensed engineer showing how its proposal addresses those impacts.”

On page 18 the judge writes “In Hot Springs County, as is normally the case in any jurisdiction, an applicant for a development project bears the burden of proof to show that its project meets the requirements for approval. LUPDR Chapter One, section 1-6. The record does not show where Tipi Retreat presented evidence that it complied with the road standards.” Later on page 19, he writes “Tipi Retreat asserts that the Chapter Seven road standards at section 7-4 apply only to subdivisions and not to Tipi Retreat’s commercial development. The Court disagrees.” Finally, he writes on page 19 “The Court will find and conclude that the Board had a rational basis based on a proper determining principle in failing the project under policy A14.” So, the commissioners were not found to be arbitrary and capricious.

Policy A15 Ruling on Arbitrary and Capricious

Policy A15 states: “Internal Road Maintenance. Commercial, institutional, and industrial developments, mobile home park operators and subdivision homeowners’ associations shall provide internal road maintenance. Roads must be all weather and capable of servicing emergency vehicles.”

The judge decided that this policy is directly applicable to the Tipi Retreat development. He explains that the Stevens’ submitted a written plan for how it would maintain the road, which they argue meets the requirements (and I think the judge is agreeing with them on this.) The County’s argument centers around the term “all weather”, and its definition, as this was called up with the remanded decision as well. The judge references Wyoming Administrative Procedure Act. W.S. 16-3-103 and finds that “The record does not show where the Board followed the rulemaking process in creating the definition.” This means that their definition doesn’t stand, and the judge rules that “The Board’s denial of the development under Policy A15 was arbitrary and capricious.”

Constitutional Question

The Tipi Retreat had also asserted that the land use plan was “unconstitutionally vague”, so the judge addressed that too, and found that “The policy is not vague in its application to the Tipi Retreat.” (pg. 20)

Judge’s Conclusion

Because of the plan stating that they only need one policy that doesn’t meet the requirements, and he found that they had that, the judge writes “The Court affirms the Board’s decision.” (pg. 21) This means that overall, the Judge agrees that the commissioners were in the right to deny the application.

My conclusion is that the allegation the Stevens’ make that the commissioners were “arbitrary and capricious” is partially founded, as the judge does use those words, but in the Judge’s overall ruling to uphold the commissioners decision, he is finding them to not be arbitrary and capricious overall, as they were founded in denying the requested land use change. I also believe that in the Stevens’ allegation, the definition of those words is being misconstrued to imply something that was not the judges intention. It is very complicated with a lot of nuance. However, the judge never mentions that the commissioners acted dishonestly, without integrity, or with intentional malice. His findings are that the plan was faulty in some areas and that the commissioners didn’t use the proper process for adopting a definition before using it. He does not mention that they were malicious or had ill intent, nor does he address their intent at all.

The Root Problem

There is some history to this case that I think provides a lot of context and history as to why this issue is so grey. The very shortened version of a very long and sorted story: When Michelle’s dad, Bill Glover, purchased the property in the 1990’s, it was legally entirely landlocked. He had no legal access, but he didn’t know that when he bought the property, as there was a two track going up there. When he found out, he tried to get an easement from the neighbors. The neighbors refused. Bill hired an attorney. They decided to use Wyoming State Statute 24-9-101 to get access. They appealed Bill’s case to the County Commissioners, as the Statute used to outlay. (Note: the statute was later amended to direct these appeals to the District Court.) The County Commissioners approved the road for private access in 1998, after a long fight. A few things of note: technically, the Stevens’ don’t have an easement exactly, but they do have the legal right to use the road, granted by the County Commissioners in 1998. For clarity, if Michelle is standing in the middle of the road before she gets to her property, she does not own the land she is standing on, but she does have a legal right to be there. However, the neighbors own the land. This has led to a number of the allegations made by the Stevens’ against the neighbors (I won’t get into these, as I don’t have time here. Let me know if you want more info.) This is the root problem in this case: The statue above specifies that this road cannot exceed 30’ in width, so the Stevens’ can’t legally widen the road. The Commissioners were applying Policy A10 in the land Use Plan, which would require that the road be 60’ wide. They also used Policy A14 to maintain it must be a lot more substantial (which the judge ultimately concurred with). The Stevens’ lawyers are arguing that that policy doesn’t fit well, and the Commissioners lawyers are saying the current road is not safe enough for the public. There is also the legal grey area about how much traffic, and what kind of traffic, is appropriate for a road granted under W.S.S. 24-9-101. Admittedly, this is an over simplification of the case, it is a lot more nuanced than that. This is a legal gray area, as much of this case is not covered in statute. This is why many legal nerds (including myself and, it appears, Judge Simpson) do hope that the Stevens’ case will be appealed to the Wyoming Supreme Court, because then we would have more case law. W.S.S 24-9-101 is a legal nerd gold mine by the way, with many fascinating cases of judges ruling to uphold it or not.

CONCLUSIONS

I believe that each of these issues deserves to be heard as a separate allegation and debated individually. The sum total of these allegations does not look good to the public on either side. I will reiterate that I hope we can keep the debate in the comments section of this article, and off of Facebook, as I have heard that people there are tired of hearing about it. This is not even close to all of the issues and allegations from the Stevens’ that I have seen brought to light, but I think it is the major ones. If there are other allegations you’d like me to investigate, please let me know. I can do it through the comments or can write a separate article, if needed. I feel that we need to take this one issue at a time and one day at a time and slog through this, and hear from all involved to make our decisions. And, of course, try to stick to the facts as best we can.

Article written by Shurie Scheel. Shurie can be reached by email at shuriescheel@gmail.com