Board votes to submit specific findings regarding Tipi Retreat litigation

During the August 15 Hot Springs County Commissioner (HSCC) meeting, Chairman Tom Ryan presented a 16-page "Specific Findings by Board Upon Remand by District Court" regarding litigation between Michael and Michele Stevens of the Tipi Retreat, LLC and the HSC Commissioners. 

Chairman Ryan said, "The court had ordered us to come up with specific findings. It's a little unusual. We don't normally talk about ongoing litigation, but the attorneys have worked out specific findings of the Tipi matter. They've submitted it to us for approval and submission to the court. These are on an item that is almost two years old. We previously had a public hearing, so there won't be any public discussion on this."

Commissioner Phil Scheel made the motion to accept the Specific Findings By Board Upon Remand By District Court. Chairman Tom Ryan Seconded. In the vote, Commissioner Paul Galovich voted against the motion, but it passed with approval from both Chairman Ryan and Commissioner Scheel. 

Additionally,  Commissioner Galovich submitted his letter of disagreement and a letter from Lara Shook.

During the original time of the Stevens application, the board members consisted of Commissioner Jack Baird, Chairman Tom Ryan, and Commissioner Phil Scheel. Paul Galovich was not elected at the time of the initial application. 

According to the document, the HSCC Board determines that "the Stevens' application for a Land Use Change fails several of Absolute Policies in the Hot Springs County Land Use Plan and Development Regulations. A failure of a single Absolute Policy requires a denial of the requested Land Use Change. Accordingly, the Stevens' request for a Land Use Change is hereby denied."

In the Application of Policies section of the document, the HSCC Board unanimously (Baird, Ryan, and Scheel) determined that the Stevens' proposed use violated several Absolute Policies concerning access and roads. The failed Absolute Policies include the following:

POLICY A10 – Access Right-of-way. 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.

POLICY A12 – Subdivision Roads. Residential developments shall provide all weather public access roads capable of servicing emergency response vehicles to all lots or units. Adequate rights-of-way for all such roads shall be indicated on the subdivision plat.

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.

POLICY A15 – 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.

POLICY A17 – Driveway Standards. All driveways connecting to public roads shall be constructed in conformance with the recommendations of the County Road and Bridge Department and the Wyoming Department of Transportation, as applicable.

In the Specific Findings document it states, "The design standards for access and internal subdivision roads in Chapter Seven provide the following: A. Access and internal subdivision road design shall be based upon the projected average daily traffic (ADT) for a ten-year design period. The average daily traffic shall be determined by accepted procedures and, in residential areas, can be established by estimating the number of homes to be served by the road. Roads must be all weather and capable of servicing emergency vehicles – fire and ambulance. B. After the ADT has been determined, the terrain and environmental conditions in the area of the road should be analyzed and classified. C. Cuts and fills, shoulder grades, road alignment, culvert and bridge placement and sizing, road surfaces, intersections, railroad crossings, signage, access road approaches, geometric design and all other design and construction features must be approved and certified by a licensed Wyoming Engineer.

The document continues, "All weather roads" means a road of sufficient construction and firmness for vehicles and equipment to traverse during normal inclement weather, including expected rain, snow, and freezing temperatures, and is suitable for emergency vehicles to utilize regardless of weather."

"Furthermore, the LUPDR defines a "subdivision" as "the division of a lot, tract, parcel or other unit of land for the immediate or future purpose of sale, building development or redevelopment, for residential, recreational, industrial, commercial or public uses."

According to the document, "The Stevens' application constitutes a "subdivision" under the LUPDR because ten (10) acres of the property has been administratively divided from the whole tract for the immediate or future purpose of making commercial uses of twelve (12) tipis and support facilities. While the Board determines that this property qualifies as a "subdivision" under the LUPDR, even if it does not, policies that reference "subdivisions" may still be used as a guide in the decision-making process. The purpose of the LUPDR is to promote public health, safety, morals, and the general welfare of the county. As such, the Board may regulate and restrict the location and use of buildings and structures and the use, condition of use or occupancy of lands for residence, recreation, agriculture, industry, commerce, public and other purposes in the unincorporated area of the county."

"Under Wyo. Stat. § 24-1-105(a), all public roads "shall not be less than sixty (60) nor more than one hundred (100) feet in width, unless the board of county commissioners determines that a county road be established with a less width." A sixty (60) foot right-of-way for all public ways to a subdivision is also required under Wyo. Stat. § 18-5-306(a)(v)(B). These statutes guide our decision-making in that they suggest a sixty (60) foot width for rights-of-way which support higher volumes of traffic to ensure safe, reliable, and functional access for residential, recreational, industrial, commercial, or other public uses, including service by emergency vehicles."

Additionally, the document said, "In reaching its decision, the Board considered the concerns expressed by the Planning Department, including concerns regarding rights-of-way, road construction standards, road maintenance, sanitation systems, safety, and impacts to adjoining neighbors, as more fully set forth in the memorandum and staff report dated July 26, 2021, and memorandum dated December 20, 2021."

The document continued and said, "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 requirements 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."

"Policy A10 ensures that commercial developments with significant daily traffic, which may include overnight guests, employees, and service providers, can provide a safe means of access to and from the property. A sixty (60) foot easement is necessary for this type of access because it can provide for two (2) lanes of traffic. The Board determines that a lesser width poses serious safety risks for those who use the access road to the Stevens' property and those whose property is subject to the access road. Here, the access road through the Stevens' neighbors is situated on a thirty (30) foot easement and the roadbed itself is even narrower, being less than twenty (20) feet in width. Most of the road cannot accommodate two (2) vehicles passing one another in opposite directions because of this narrow width. Even if one driver pulls aside to make room for another vehicle to pass in the opposite direction, there is limited space to do so. The private status of this road also means that it is not commonly patrolled by law enforcement, so there is no enforcement of traffic laws on the road. This means that the speed of vehicles on the road is not monitored which allows people to drive recklessly on a road that already poses many dangers."

"As a result of these important safety concerns, the application fails Policy A10."

The Specific Findings document also discusses other items such as Commissioner Jack Baird's decisions and also further information from Chairman Tom Ryan and Commissioner Phil Scheel. This document is available to the public through the Hot Springs District Court Clerk's office.

During this part of the meeting, Commissioner Paul Galovich presented a document to the other board members and a letter from a concerned citizen Lara Shook. Commissioner Galovich's statement expressed his disagreement with the Finding of Fact response letter to the Remand by the District Court. Galovich laid out 12 points in his letter where he referees to certain numbered statements in the Specific Findings document. A portion of those disagreements are as follows:

Commissioner Galovich said, "It is stated that the Board unanimously determined that the Stevens' proposal violated several Absolute Policies. They reference policy A10, policy A12, policy A14, policy A15, policy A17 all of these policy's pertain to Subdivision Roads of which does not pertain to the Stevens operation. They are not a Subdivision."

Galovich continues, "It is stated that the Stevens application constitutes a "Subdivision" under the LUPDR because ten (10) acres of the property has been administratively divided." Galovich said, "I find it interesting that the establishment can require you to divide 10 acres off from your 60 only for the convenience of calling it a "Subdivision" when there was and is no division of the 60 acres sold or divided into separate ownerships or purposes."

"It is stated that "All public roads "shall not be less than sixty (60) feet in width. A sixty (60) foot right-of-way for all public ways to a Subdivision is also required." Galovich said, "Again, the Stevens operation is not a subdivision and the reference to Policy A10 is in relationship to subdivision. The reasoning behind this is not to have a road that is 60 feet wide but to have easement for water, sewer, utilities etc."

Galovich continued and said, "There are a number of references in this document that refer to a sixty (60) foot easement. All of which do not apply to the Stevens because they are not a subdivision and do not require the easement utility access. There is further reference to their road only being 20 ft. wide on a 30 ft. easement. I have personally measured their road and found the narrowest measurement to be 26 ft. and the adjacent county road to be 25 ft. It might be of interest to note that the access road to the Golf Corse/Old Airport/Restaurant measures 23 ft. to 24 ft. and would be considered quite a dangerous road. Therefore, should we close all roads that measure under 30 ft. or 24 ft.? That list might get quite lengthy. This document also references the Stevens' road as not being adequate for safety vehicle access. It is my understanding that our local fire chief has inspected and indicated that the Stevens' private road is fine for their equipment access. In reference to the Stevens road not being safe for two way traffic at 26 ft., how can the Golf Course road be safe at 23 ft. or a county road at 25 ft.?"

Galovich also said, "There are other references that refer to POLICY A7 and POLICY A27 in regards to sewage. All apply to subdivisions and DEQ permitting. None of which apply to the Stevens' operation. There are a number of estimations and assumptions included in this document that have no factual bearing."

Galovich concluded, "I find it interesting that it took the Board of Commissioners five months to review the Planning Commission recommendation of approval for the Stevens' application, only to deny it. It is my understanding, at least, to the Stevens' understanding, that not one of the Commissioners during that five month period or ever since have visited the Stevens' operation. I have, and I have read the five star reviews of people who have stayed there. Many of which would have never came to Thermopolis had it not been for The Tipi Retreat, LLC. I believe we are doing an injustice to our community by denying this business operation and its positive effects, in the lives of those who come and stay, as well as the economic benefit to our area."