Judge orders ‘reasonable use’ of Hoback Ranches road


Declines to determine now if road is public or private

After a second

Ninth District Court hearing where both

sides in a Hoback Ranches road dispute finished

their arguments, the judge dissolved the

temporary restraining order against a couple

trying to rebuild the new home they lost in

last September’s Roosevelt Fire.

After eight hours – on July 17 and then

July 31¬ – of owners’ testimony and looking

at maps, covenants and photos in two

extended hearings, Judge Marv Tyler ruled

Bradley Eves and Nanette Cowley can have

“reasonable use” of Upper Picnic Ridge Road

to begin rebuilding.

However, the judge said permanently

keeping the couple off the road and whether

or not it is public or private are matters for

trial.

In June, owners Dave and Mary Nemetz,

Gary and Valerie Zunino and others not present

filed a complaint asking Judge Tyler to

impose a preliminary injunction to prevent

heavy traffic that they said caused road damage.

They filed it just after Cowley and Eves

began working on a new foundation.

Cowley and Eves bought the property in

2011 and used the road to access and build

their first home, which their attorney John

Coppede called the “status quo” of past use.

He argued that no developer would plan to

leave an owner “landlocked.”

Attorney Doug Mason, representing the

Nemetzes and Zuninos, argued that Upper

Picnic Ridge Road is private and they never

granted a right of way or easement across

their property. He also elicited testimony the

couple could build a new road along their

boundary.

They testified that Eves damaged the road

by bringing in heavy vehicles when it was

wet. They also said the fire itself did not cause

these damages.

Eves explained that he opened the road

this spring, pushing snow to the end to ease

erosion from snowmelt and that “hundreds”

of fire truck trips were made on it. During a

recess, Eves said they offered many times to

fix it after their construction.

Before his deliberations about a preliminary

injunction, Judge Tyler related what he

had learned.

“We may have to go to trial,” the judge

said, adding neither side has fully developed

arguments to grant or deny a permanent injunction

against future use of the road – even

for access.

“A (preliminary) injunction is an extraordinary

remedy,” said Coppedes. “I think the

evidence in this case (shows it) is not warranted.

Over the life of this road, the status

quo has always been use by the public for

personal access and construction. … I don’t

think the evidence has shown any irreparable

harm. The road is passable despite use by

construction vehicles.”

It would not make sense for owners to not

have access, he said.

“This is just a preliminary injunction, just

to get us to a decision so we can be more clear

in development of issues in this case,” Judge

Tyler said.

Coppede said he didn’t feel a trial would

be necessary.

“Do I have to make a determination if it is

a public road or a private road to rule on the

injunction – the reason I ask is even if it is a

public road or right of way, assuming I take

that view, isn’t that still something within

the court’s requirements to examine whether

there has been interference with the ‘proper

use’ of this road,” Judge Tyler said.

Coppede argued Upper Picnic Ridge Road

“has been used from Day 1, built for the construction

of homes and access, and nobody

complained until recently.”

After deliberating Judge Tyler returned:

“With concern and a great deal of reluctance,

I am not prepared to declare at this preliminary

injunction whether an easement is a

public road or private road. The road was created.

It was obviously created for the benefits

of certain tract owners in the subdivision. …

The fact this is an easement is most important

for me to consider. The defendants have used

it consistently since approximately 2011 to

the present.”

He advised all parties to respect each other’s

uses. Regarding “imminent irreparable

harm” with no adequate remedy – required

for a preliminary injunction – the judge said

by law plaintiffs could seek payment for damages.

Judge Tyler said he did not feel Eves and

Cowley respected neighbors’ complaints

and “strongly” suggested everyone try to get

along.

“I do not find I am able to grant this preliminary

injunction,” he said. “The permanent

injunction is still at issue. … It is unfortunate

this couldn’t be better handled in a confrontation

like this.”

He ordered the temporary restraining order

dissolved and $10,000 bond returned to plaintiffs.

When asked to define “reasonable use,”

Coppede said, “’Reasonable use’ has not

been resolved yet. They will be able to construct

their home.”

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