Trial could be scheduled in the future.
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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.”