Kearns and Sons RS Aesthetics

Commissioners consider permit system for opening roads

By Michael Howell

What is a road?

That is one question that the Ravalli County Commissioners are wrestling with in the face of an increasing number of conflicts over road issues, many of them having to do with what are called the Orchard Tracts. It is a legacy from the valley’s Apple Boom days of the early 1900s, when a large amount of land was divided into 10-acre tracts for small orchards that would be watered from the Big Ditch that was being constructed at the time.

The boom went bust, but what remained was a large number of 10-acre tracts with roads shown on the plats as dedicated to the public and signed by the Board of County Commissioners at the time.

But are those “roads” shown on the plats? Or are they merely easements held by the County for the intended purpose of accommodating a road?

According to Deputy County Attorney Dan Browder, this is the first question that the Commissioners need to answer before they can move forward with any kind of ordinance designed to address these road issues. His opinion, he said, was that the plats mark a “right of way,” called an easement, across a piece of land and the landowner may not do anything that would obstruct the intended purpose of the easement, in this case, use as a public roadway.

“These dedicated roadways, a hundred years later,” said Browder, “some of them are actually roads. Some are county maintained roads. Some are established roads not maintained by the county. Some, there is no road at all, just two tracks across the ground. Some are just trails. We have pretty much everything from a county maintained road down to nothing.”

Browder said the county was facing lots of situations where there were competing interests among the landowners along these rights of way. He said a number of people were coming to the county wanting to improve these “non-roads.” He said the county has been handling it “kind of ad hoc” through the Road Department.

Browder said that he had been working with a subcommittee led by Commissioner Ray Hawk that had begun drafting language for a potential ordinance to address the issue but that some broad policy questions needed to be answered first before any specific ordinance could be constructed.

“We felt drafting an ordinance was premature,” he said.

Commissioner Chris Hoffman, who also serves on the subcommittee, said that this meeting was to decide whether the subcommittee would move forward with drafting an ordinance or not. He said they had received a letter from an attorney representing the Board of Realtors, “who don’t want this to move forward.” He said he felt like the letter was “born from a misunderstanding. We are simply looking at dealing with issues occurring more and more in the county. We would not put an ordinance out there without having first consulted with the public.”

Commissioner Hawk said, “I think I made it clear to the realtors that we are a long way from an ordinance.”

Browder noted that there is not much law in statute or in case law about “dedicated” roads, as opposed to petitioned roads or prescriptive roads. He suggested that the commissioners could introduce some clarity by distinguishing between an easement and a road. He said you could have an easement across your property for a public road, but it does not give “John Q. Public” the right to drive or even walk across your field until there is an “established” roadway.

He said the solution to the problem was to clearly define the process by which an easement is “opened” to the public, that is when the “right to build a road” becomes “an actual road.” Browder said there is some support for his interpretation of “opening a road” in the statutes but there is no case history over it.

Commissioner Jeff Burrows said that he believed the road was opened when the right of way was adopted.

Browder said that such an interpretation would mean that any member of the public could traverse these old right-of-ways even where there is no road and one may never be built.

Browder also noted that after the first question is answered about the “opening” of a road, the next question to answer is how does the county oversee its responsibilities within the “roadway” when someone wants to improve it. Browder suggests that a permitting system for road improvements would make sense. This is where a draft ordinance would become appropriate.

“We started with this question and then backed into the policy question,” said Browder. “We need to understand what rights the public has before we can move forward with a draft.”

First to speak in the public comment portion of the meeting was local realtor Lee Foss, who said, “You are already enforcing an ordinance that you haven’t passed.” He said the real problems began when the county attorney’s office began to demand that landowners bring the roadways up to county standards if they do any improvements to their roadway.

Brad McGruder, owner of property near Teddy Bear Lane, spoke. He lives where a dispute over an unimproved section of road easement connecting Teddy Bear Lane and North View Drive northeast of Stevensville is raging. The dispute arose when one landowner began road improvements within the undeveloped portion of the right of way connecting the two other roads.

Commissioner Hoffman stated that this was not the venue for discussing that particular situation.

“No matter which way we go on this we are probably going to get sued,” he said. “We are not going to see any legislative relief on this issue. This is something we are going to hash out as a community. And note that I did not say by the Board of County Commissioners. Yes, it’s up to us to come up with a policy and to deal with alleviating some of these issues as they come up. But it will be done as a community.” He said they weren’t going to solve the issues on Teddy Bear Lane today.

Nicole Troy couldn’t let it go without a word, and said, “We wouldn’t be here if it wasn’t for Teddy Bear Lane and being without any regulations for building or some controls. That road is not safe. This was done unfairly to the residents of Teddy Bear Lane.”

Carlotta Grandstaff, speaking for Bitterrooters for Planning, said that the county could address the issue by abandoning any plats older than 30 years that have not seen any improvements. She said there was legal precedence for it.

Jim Rokosch, Executive Director of Bitterrooters for Planning, said that the county commissioners are “complicit” in the damages being inflicted by private parties upon residents along Teddy Bear Lane by not acting.  He too advocated vacating any plats older than 30 years that have not been built out.

Browder said he did not think that was even possible. Craig Siphers spoke for the Board of Realtors, saying they had concerns such as how it would affect people who purchased property with certain expectations as well as the cost that is implied to new landowners who do want to develop their plats.

County Clerk and Recorder Regina Plettenberg said, “We see a lot of this. Roads are a big issue. People really are frustrated over roads and we don’t have the definitions for them.”

It was decided to have the subcommittee move forward by consulting with the two organizations that have been involved, the Board of Realtors and Bitterrooters for Planning, and come up with a draft that can be released for public review and discussion.

There are no comments yet. Be the first and leave a response!

Leave a Reply

Wanting to leave an <em>phasis on your comment?