The new building we've been watching go up all winter is now open at Raspberry Square with even more interesting fishing, boating and water toys than ever. It also features a line of Utah designed swimwear.
Saturday, June 28, 2014
Election Results
Tom Weston edged out Pat Argyle in a narrow primary for County Commissioner 311 to 243 votes of 554 votes cast in the County. Because there is no Democratic candidate, Tom Weston, therefore retains his seat on the commission.
In the school board primaries for Districts 3,4 & 5, the candidates who will move to the general election in November are:
District 3 Ralph B. Johnson and Monty G. Weston
District 4 Dallas L. Clark and Eric Wamsley
District 5 Bryce Huefner and Tamalyn E. Calder
In the school board primaries for Districts 3,4 & 5, the candidates who will move to the general election in November are:
District 3 Ralph B. Johnson and Monty G. Weston
District 4 Dallas L. Clark and Eric Wamsley
District 5 Bryce Huefner and Tamalyn E. Calder
Friday, June 27, 2014
Shore Lodge Estates Lawsuit Against Garden City
(Editor Note: Because this is ongoing litigation, the city is not allowed by the city attorney to comment on the lawsuit)
To The Editor,
I love Bear Lake and have invested much of my life there
trying to help the area retain it’s pristine beauty. Those who know me are well aware
of that fact. Actually, this will be my 66th summer at Bear Lake. From
my childhood until now, I have spent as many days as I possibly could every summer
at the lake. Our family was there a lot as I was growing up. I attended Camp
Hunt every summer as a Boy Scout and worked their for two summers on the camp
staff.
I also worked at the USU Fish Laboratory as a groundskeeper one summer and was a "bouncer" on weekends at Lakota Resort. From the time I was a child, I dreamed of the day that I could stay at the lake all summer. When I signed my first contract to play professional football, I finally had the money to buy a lot and make my dream come true. That lot in Shore Lodge Estates actually cost me more than half of my annual salary as a first round draft choice in the NFL. That lot has been private property for more than 54 years.
I also worked at the USU Fish Laboratory as a groundskeeper one summer and was a "bouncer" on weekends at Lakota Resort. From the time I was a child, I dreamed of the day that I could stay at the lake all summer. When I signed my first contract to play professional football, I finally had the money to buy a lot and make my dream come true. That lot in Shore Lodge Estates actually cost me more than half of my annual salary as a first round draft choice in the NFL. That lot has been private property for more than 54 years.
My involvement with the lake has continued through my
adult life. I was an active member of Love Bear Lake since the time of its
founding. I am a founding board member of Bear Lake Watch and currently serve as
its Vice President. The mission of Bear Lake Watch since its founding in 1994
has been to Keep Bear Lake…Clean, Deep and Blue. We serve as an advocate for
all of the stakeholders in the Bear Lake Valley. Our accomplishments on behalf
of the lake down through the years have been considerable and are
well-known.
My
roots to Bear Lake go way back. My mother was a school teacher in Garden City
in 1937-38 after she graduated from Utah State University with a degree in
education. She was born in 1913 and was raised in Star Valley, Wyoming. Her
family made annual treks in the summer to visit relatives in Logan, Utah. As a
child, they made the journey in a horse-drawn buckboard and later they would go
by car. She fell in love with Bear Lake as a child and spend many days camped
out on the beach there as her family journeyed to Logan and on their way back to
Star Valley. When my mother got married, she made sure that each of her nine
children were properly introduced to Bear Lake. My mother passed away at age
94. At the time of her death, she had nine children, 43 grandchildren,
71 great-grandchildren and four great, great
grandchildren. As far as I know, every member in her family tree was well aware
of her love for Bear Lake. It was one of the legacies she passed on to future
generations.
As you know, I have been an active participant on the
Mayor’s Roundtable since its beginning last summer and had great hopes that it
could prove to be an objective, independent voice with regards to issues
affecting Garden City. While we got off to a good start, I have been shocked at
the recent callous, irresponsible and illegal actions of Mayor Spuhler as he directed city employees to install “Public
Access” signs at the head of each of our private driveways in Shore Lodge
Estates. He hen
directed city workers to tear out and haul away the gates at the
head of each of our driveways without legal justification and without following
Due Process of law. His actions are a clear example of abuse of power by a
public official and they should be a Red Flag to every property owner in Garden
City.
Attached is a copy of my resignation letter from the
Mayor’s Roundtable which details the
Mayor's actions as well as a copy of the lawsuit that was filed recently by
Shore Lodge Estates against Garden City and Mayor Spuhler. I encourage you to review the facts related to
the matter and come to your own conclusion about the appropriateness of the
Mayor’s actions and their chilling impact on private property
rights.
We have been assigned
a judge in Utah's First District Court. Thomas L. Willmore will hear the case.
He has a reputation as a judge who follows the rule of law and investigates the
facts. We look forward to presenting him with the facts in this matter. Our
attorney is Paxton Guymon. He practices law in Salt lake City, but has Bear
Lake roots. He will do an excellent job of representing the interests of the
Shore Lodge Estates HOA.
Phillip V. Olsen, President
Know Your Strengths
406-522-0478 (office)
406-581-8845 (cell)
|
Daniel Dansie (#13918)
York Howell
6405 South 3000 East, Suite
150
Salt Lake City, Utah 84121
Telephone: (801) 527-1040
Facsimile: (801) 527-1000
Attorneys for Plaintiff
IN THE FIRST JUDICIAL DISTRICT COURT
RICH COUNTY, STATE OF UTAH
|
|
SHORE LODGE ESTATES
HOMEOWNERS ASSOCIATION, a Utah Nonprofit Corporation
Plaintiffs,
vs.
TOWN OF GARDEN CITY, a
Utah Municipal Corporation; JOHN SPUHLER, in his Official Capacity as Mayor
of the Town of Garden City
Defendants.
|
COMPLAINT
Civil
No. _________________
Honorable
___________________
|
Plaintiff
Shore Lodge Homeowners Association (“Shore
Lodge HOA”), by and through its legal counsel, complains against defendants
Town of Garden City (“Garden City”)
and John Spuhler (“Mayor Spuhler”)
as follows:
PARTIES
1.
Plaintiff Shore
Lodge HOA is a Utah nonprofit Corporation.
2.
The membership of
the Shore Lodge HOA consists of the owners of each of the twenty-nine (29) lots
within the Shore Lodge Estates Subdivision (“Subdivision”) as shown on the Amended Plat of Shore Lodge Estates
(“Amended Plat”).
3.
The Amended Plat
was recorded with the County Recorder of Rich County, Utah, in 1963. A copy of the Amended Plat is attached hereto
as Exhibit "A."
4.
Defendant Garden
City is, pursuant to Utah Code Ann. § 10-2-125 and § 10-2-301, a Utah municipal
corporation designated as a town.
5.
The Subdivision,
as identified and described in the Amended Plat, is located within Rich County,
and Garden City claims the Subdivision is within the municipal boundaries of
Garden City.
6.
Defendant Mayor
Spuhler is the duly elected mayor of Garden City and is responsible for
directing the improper actions described in this Complaint.
JURISDICTION AND VENUE
7.
This action seeks
declaratory and injunctive relief. This Court has jurisdiction pursuant to Utah
Code Ann. § 78A-5-102(1). This Court
also has jurisdiction over the Fourth Cause of Action set forth below pursuant
to Utah Code Ann. § 24-1-103 regarding the private property that Defendants
unlawfully seized for forfeiture.
8.
In this action,
Shore Lodge HOA seeks a determination regarding rights and interests in real
property located in Rich County, Utah, and Venue is proper pursuant to Utah
Code Ann. § 78B-3-301.
GENERAL ALLEGATIONS
9.
The Amended Plat
subdivides certain real property that is situated on the south side of Garden
City and is bounded on the west by Bear Lake Blvd (State Road 30) and the east
by the shore of Bear Lake.
10.
The Amended Plat
identifies twenty-nine (29) residential lots and seven (7) common driveways (the
“Driveways”). The Driveways provide
the adjacent lots with ingress and egress access to State Road 30.
11.
The Amended Plat
includes a section titled “Owner’s Dedication” which contains standard
boilerplate language typically found on subdivision plats.
12.
The Owner’s
Dedication States:
Know all men by these presents: That we, the undersigned owners of the land herein
described, having caused the same to be subdivided into lots and streets to be
hereafter known as the Amended Plat of Shore Lodge Estates, do hereby
dedicate for perpetual use of the public all parcels of land shown on this plat
as intended for public use.
(Emphasis in Original.)
13.
None of the
residential lots are designated or labeled for public use. Rather, they are privately-owned lots with
privately-owned residential structures.
14.
Likewise, none of
the Driveways shown on the Amended Plat are labeled “public,” nor do the Driveways
bear any designation stating they are “intended for public use.” The Amended Plat does not contain a legend
identifying or showing the Driveways as intended for public use. None of the Driveways
are shaded, cross-hatched or contain any other mark of differentiation from the
individual lots in the Subdivision.
15.
As a result,
according to the plain language of the Amended Plat, the Owner's Dedication did
not create or effectuate a dedication for public use of any of the Driveways.
16.
The developers created
the Driveways for the purpose of providing access to and from Highway 30 for
the owners of the lots within the Subdivision, not for the public at large.
17.
The Driveways were
not platted or created to provide public access to the shore areas of Bear
Lake.
18.
After the Amended
Plat was recorded, private gates were installed by the lot owners at the head
of each of the Driveways (near Highway 30). For approximately 50 years, the lot owners
used the private gates to prevent members of the general public from using the
private Driveways, and they did so without any objection from Rich County or
Garden City officials.
19.
The Driveways have
never been used by the public generally as a means to access the shore areas of
Bear Lake in any manner (pedestrian, vehicular or otherwise).
20.
Neither Rich
County nor Garden City has ever improved or maintained the Driveways.
21.
The Driveways were
never constructed or improved to the standards required for public roadways
under applicable County or City standards.
22.
Instead, the
owners of the lots adjacent to the Driveways have maintained the Driveways
themselves, at their own cost and expense, with varying levels of
improvement. Some of the Driveways are
primarily comprised of lawn or grass.
Portions of some Driveways have gravel, with others merely consisting of
dirt or natural landscape.
23.
Attached hereto as
Exhibit "B" are photos of some of the Driveways.
24.
As shown in the
photos, none of the Driveways have been improved with road base or sub-base in
accordance with the requirements for public roadways.
25.
For more than 50
years, owners of the lots within the Subdivision have had quiet, exclusive, and
uninterrupted enjoyment of the Driveways, and have – at their own expense –
installed and maintained their own private gates at the head of each of the Driveways.
26.
The owners of the
lots use their Driveways for vehicular access to their cabins and residential
structures, and to walk to and from the Bear Lake shore.
27.
Prior to the
actions of Mayor Spuhler, as set forth herein, no public official of Garden
City or Rich County has ever claimed that the Driveways are public rights of
way, nor have any such officials demanded that the Driveways be opened to the
public for beach access.
28.
On or about May 4,
2014, Garden City officials, acting at Mayor Spuhler’s direction, unilaterally
and without appropriate notice removed and confiscated the private gates from
the head of each of the Driveways. Further, Garden City officials installed
signs at the head of each of the Driveways inviting use by the public.
29.
Where the Shore
Lodge Estates has previously installed signs at the gates stating "Private
Property - Home Owners Only," the City erected new signs of its own
stating "Public Beach --
Non-Motorized Access." Attached
hereto as Exhibit "C" is a copy of one of the City's
newly-erected signs. Prior to the unlawful and improper confiscation of the
private gates, Mayor Spuhler and Garden City knew that the Shore Lodge HOA was
represented by legal counsel, and that the Shore Lodge HOA objected to Mayor
Spuhler's new-found position that the Driveways should be opened to the public
at large.
30.
Moreover, Mayor
Spuhler had previously acknowledged that the private gates served an important
function of protecting the private property of the lot owners in the
Subdivision from theft or vandalism.
31.
Nevertheless,
without due process of law and in derogation of the lot owners' private
property rights, Mayor Spuhler caused government employees to confiscate the
private gates and install the City's new signs.
32.
Garden City has
refused to return the gates without an agreement from members of the Shore
Lodge HOA not to replace the gates.
Garden City has no right to convert and retain possession of the private
gates, but nevertheless refuses to return the gates to the lot owners unless
the Shore Lodge HOA concedes to the City's demands.
33.
Garden City and
Mayor Spuhler have even threatened to issue citations for disorderly conduct
should members of the Shore Lodge HOA attempt to replace the private gates.
34.
The actions of
Mayor Spuhler and Garden City were taken in bad faith to promote Mayor
Spuhler's own agenda in total disregard of due process of law and the lot
owners' private property rights. Such
self-help actions should not be tolerated by the Court, especially when carried
out by government employees at the direction of an elected official.
FIRST CAUSE OF ACTION
(Declaratory
Judgment – Access Road Not Dedicated)
35.
Plaintiff
incorporates each of the foregoing allegations as if fully restated.
36.
Pursuant to Utah
Code Ann. § 78B-6-401, this Court has the power to “issue declaratory judgments
determining rights, status and other legal relations within its respective
jurisdiction.”
37.
The Amended Plat
contains a boilerplate Owner’s Dedication which states, in part, that “all
parces of land shown on this plat as intended for public use.”
38.
However, none of
the Driveways are affirmatively designated as “intended for public use.”
39.
There is no
indication of any sort on the Amended Plat that any of the Driveways are
“intended for public use.”
40.
In fact, it was
the intent of the developers of the Shore Lodge Estates Subdivision that the Driveways
be used for ingress and egress by the owners of lots adjacent to each of the Driveways.
41.
Garden City has
never maintained the Driveways and they have not been open to, or used by, the
general public for over 50 years.
42.
The Driveways were
never constructed or improved to the standards required for public roadways
under applicable County or City standards.
None of the Driveways have been improved with road base or sub-base as
required for public roadways.
43.
Instead, the
owners of the lots adjacent to the Driveways have maintained the Driveways
themselves, at their own cost and expense, with varying levels of improvement
for more than 50 years.
44.
Based on the
foregoing, plaintiff is entitled to a declaratory judgment that (i) the Driveways
have not been dedicated to the public, (ii) the Driveways are not open for
pedestrian access by the general public, and (iii) the Driveways are for the
private use of the adjacent lot owners in the Subdivision.
SECOND CAUSE OF ACTION
(Declaratory Judgment – The Public Has Not Acquired a
Right of Way Over the Driveways)
45.
Plaintiff
incorporates each of the foregoing allegations as if fully restated.
46.
Pursuant to Utah
Code Ann. § 78B-6-401, this Court has the power to “issue declaratory judgments
determining rights, status and other legal relations within its respective
jurisdiction.”
47.
After the Amended
Plat was recorded, the owners of lots within the Subdivision installed private gates
at the head of each of the Driveways.
48.
Thereafter, use of
the Driveways has been limited to owners of lots within the Subdivision and
their invitees. Garden City was provided
with keys to open the private gates for emergency access only, not for any
other purpose.
49.
There has never
been any period of time during which the public continuously used the Driveways
as a public thoroughfare.
50.
Based on the
foregoing, plaintiff is entitled to a declaratory judgment that the public has
not acquired a right of way over the Driveways through historical use or
otherwise.
THIRD CAUSE OF ACTION
(Injunctive
Relief – Requiring Garden City to Remove the Signs it has Installed and
Enjoining Mayor Spuhler and Garden City From Interfering With Subdivision
Owners’ Right to Restrict Public Access)
51.
Plaintiff
incorporates each of the foregoing allegations as if fully restated.
52.
After the Amended
Plat was recorded, owners of the lots within the Subdivision installed gates at
the head of each Access Road.
53.
Among other
things, the gates across the Driveways provided privacy, safety and security to
the lots within the Subdivision.
54.
Shortly after May
1, 2014, government officials – acting at the direction of Mayor Spuhler –
removed and confiscated the gates from the Driveways. The gates were removed
without appropriate notice and notwithstanding the fact that the Driveways are
not public property.
55.
Garden City and
Mayor Spuhler have refused to return the gates without a promise from members
of the Shore Lodge HOA to not replace or re-install the gates.
56.
Indeed, Garden
City and Mayor Spuhler have threatened to issue citations for disorderly conduct
should members of the Shore Lodge HOA attempt to replace their private gates.
57.
In addition,
Garden City has installed its own signs at the head of the now-open Driveways
inviting the public to use the Driveways to access the beach areas of Bear Lake.
58.
As a result, the
members of the Shore Lodge HOA have suffered, and continue to suffer,
irreparable harm because the inability to exclude the public from the Driveways
increases the risk of property damage, litter, vandalism, and other health and
safety concerns.
59.
Because the Driveways
are not public rights of way, Garden City and Mayor Spuhler had no legal
justification for directing that the gates be removed and inviting the public
onto the Driveways.
60.
Garden City and
Mayor Spuhler must be required to remove the signs they have wrongfully
installed on the Subdivision.
61.
Members of the
Shore Lodge HOA must be allowed to replace the gates and otherwise restrict
public entry to their private Driveways.
62.
Garden City and
Mayor Spuhler must be permanently enjoined from interfering with the rights of
members of the Shore Lodge HOA to restrict public use of the Driveways.
63.
In addition, the
Court should enter a preliminary injunction allowing members of the Shore Lodge
HOA to replace the gates during the pendency of this action.
FOURTH CAUSE OF ACTION
(Unlawful
Seizure/Forfeiture of Property)
64.
Plaintiff
incorporates each of the foregoing allegations as if fully restated herein.
65.
By forcibly
removing the private gates of Plaintiff, Garden City and Mayor Spuhler treated
the gates as if they amounted to criminal trespass.
66.
Defendants'
actions in confiscating the private gates constitute an unlawful seizure for
forfeiture of the private gates.
67.
Defendants,
however, failed to comply with the statutory requirements for seizing property
(see Section 24-2-102(1) of the Utah Code, allowing property to be
seized by a peace officer or other authorized person only "upon process
issued by a court having jurisdiction over the property...").
68.
Defendants have
also failed to provide the required notices and receipt required by Section
24-2-103 of the Utah Code.
69.
The Shore Lodge
HOA qualifies as a "claimant" under Section 24-1-102 of the Utah
Code.
70.
Defendants
willfully violated the statutory requirements for seizure and forfeiture of
private property.
71.
Defendants must be
ordered to promptly return the private gates to Plaintiff and to allow the same
to be re-installed at Defendant's cost and expense.
72.
In pursuing this
action to recover the private gates that the City wrongfully seized, the Shore
Lodge HOA is entitled to recover all of its legal costs as set forth in Section
24-1-102(12) of the Utah Code.
REQUEST FOR
ATTORNEY FEES
73.
Plaintiff
incorporates each of the foregoing allegations as if fully restated.
74.
Because of the
actions of Garden City and Mayor Spuhler, as set forth herein, the Shore Lodge
HOA has been obliged to retain counsel to initiate this action to protect the
right of its members.
75.
The claims that Garden
City and Mayor Spuhler have asserted are without factual or legal foundation.
76.
Pursuant to Utah
Code Ann. § 78B-5-825, plaintiff is entitled to an award of the reasonable
costs and attorney fess incurred in prosecuting this action.
77.
Plaintiff is also
entitled to an award of attorney fees and costs pursuant to Utah Code Ann. § 24-1-102(12).
PRAYER FOR RELIEF
WHEREFORE,
Plaintiff prays for the following relief from this Court:
A. On the First Cause of Action, for
declaratory judgment in favor of Plaintiff as requested in the First Cause of
Action;
B. On the Second Cause of Action, for
declaratory judgment in favor of Plaintiff as requested in the Second Cause of
Action;
C. On the Third Cause of Action, for
preliminary and permanent injunctive relief as requested in the Third Cause of
Action;
D. On the Fourth Cause of Action, for an
Order requiring Defendants to promptly return the private gates to Plaintiff
and to allow the same to be re-installed at Defendant's cost and expense.
E. Preliminary injunctive relief
ordering and restraining Garden City and Mayor Spuhler in the manner described
above during the pendency of this action;
F. An award of reasonable costs and
attorney fees incurred in this action; and
G. Such other and further relief as the
Court deems appropriate under the circumstances.
DATED
this 3rd day of June, 2014.
York
Howell
/s/
Paxton R. Guymon
Daniel
C. Dansie
Attorneys
for Plaintiff
Tuesday, June 24, 2014
Legal Response To Ownership Of Elk Ridge Water Tank Land
Dear Editor:
I am the attorney for Celestial Suds, LLC (owned by Connie
and Jeff Williams) and I am writing this letter in response to the report on the
Garden City Council Meeting that was held on May 8 of this year and posted in
the Rich Civic Times on May 17, 2014. On page 7 it was reported that Bruce
Warner will be working on issues related to the Elk’s Ridge development. As
part of that discussion appears this statement: “The City did pay $60,000 to
get a portion of the water tank up on Elk’s ridge. The City does own the land
that the tank is on.” If this is the City’s position, I am writing this letter
to state my client’s position that they own the land on which the tank is
located as a result of their foreclosure against Frank Smith. It is important
so there is not a misunderstanding as to our legal position.
This being said, my clients have been attempting to work with
the city for several months to work out a suitable arrangement for all parties.
It is our hope that Mr. Warner will contact me or my clients so we can continue
that discussion.
GARY N.
ANDERSONAttorney at Law
595 South Riverwoods Pkwy, Suite 100
Logan, Utah 84321
phone 435.752.2610
fax 435.753.8895
toll-free 877.752.2611
595 South Riverwoods Pkwy, Suite 100
Logan, Utah 84321
phone 435.752.2610
fax 435.753.8895
toll-free 877.752.2611
Phil Olsen: Letter to Editor Regarding Shore Estate
To The Editor:
I love Bear Lake and have invested much of my life there
trying to help the area retain it’s pristine beauty. Those who know me are well aware
of that fact. Actually, this will be my 66th summer at Bear Lake. From
my childhood until now, I have spent as many days as I possibly could every summer
at the lake. Our family was there a lot as I was growing up. I attended Camp
Hunt every summer as a Boy Scout and worked their for two summers on the camp
staff. I also worked at the USU Fish Laboratory as a groundskeeper one summer
and was a "bouncer" on weekends at Lakota Resort. From the time I was a
child, I dreamed of the day that I could stay at the lake all summer.
When I signed my first contract to play professional football, I finally had
the money to buy a lot and make my dream come true. That lot in Shore Lodge
Estates actually cost me more than half of my annual salary as a first round
draft choice in the NFL. That lot has been private property for more than 54
years.
My involvement with the lake has continued through my
adult life. I was an active member of Love Bear Lake since the time of its
founding. I am a founding board member of Bear Lake Watch and currently serve as
its Vice President. The mission of Bear Lake Watch since its founding in 1994
has been to Keep Bear Lake…Clean, Deep and Blue. We serve as an advocate for
all of the stakeholders in the Bear Lake Valley. Our accomplishments on behalf
of the lake down through the years have been considerable and are
well-known.
My
roots to Bear Lake go way back. My mother was a school teacher in Garden City
in 1937-38 after she graduated from Utah State University with a degree in
education. She was born in 1913 and was raised in Star Valley, Wyoming. Her
family made annual treks in the summer to visit relatives in Logan, Utah. As a
child, they made the journey in a horse-drawn buckboard and later they would go
by car. She fell in love with Bear Lake as a child and spend many days camped
out on the beach there as her family journeyed to Logan and on their way back to
Star Valley. When my mother got married, she made sure that each of her nine
children were properly introduced to Bear Lake. My mother passed away at age
94. At the time of her death, she had nine children, 43 grandchildren,
71 great-grandchildren and four great, great
grandchildren. As far as I know, every member in her family tree was well aware
of her love for Bear Lake. It was one of the legacies she passed on to future
generations.
As you know, I have been an active participant on the
Mayor’s Roundtable since its beginning last summer and had great hopes that it
could prove to be an objective, independent voice with regards to issues
affecting Garden City. While we got off to a good start, I have been shocked at
the recent callous, irresponsible and illegal actions of Mayor Spuhler as he directed city employees to install “Public
Access” signs at the head of each of our private driveways in Shore Lodge
Estates. He hen
directed city workers to tear out and haul away the gates at the
head of each of our driveways without legal justification and without following
Due Process of law. His actions are a clear example of abuse of power by a
public official and they should be a Red Flag to every property owner in Garden
City.
Attached is a copy of my resignation letter from the
Mayor’s Roundtable which details the
Mayor's actions as well as a copy of the lawsuit that was filed recently by
Shore Lodge Estates against Garden City and Mayor Spuhler. I encourage you to review the facts related to
the matter and come to your own conclusion about the appropriateness of the
Mayor’s actions and their chilling impact on private property
rights.
We have been assigned
a judge in Utah's First District Court. Thomas L. Willmore will hear the case.
He has a reputation as a judge who follows the rule of law and investigates the
facts. We look forward to presenting him with the facts in this matter. Our
attorney is Paxton Guymon. He practices law in Salt lake City, but has Bear
Lake roots. He will do an excellent job of representing the interests of the
Shore Lodge Estates HOA.
Daniel Dansie (#13918)
York Howell
6405 South 3000 East, Suite
150
Salt Lake City, Utah 84121
Telephone: (801) 527-1040
Facsimile: (801) 527-1000
Attorneys for Plaintiff
|
IN THE FIRST JUDICIAL DISTRICT COURT
RICH COUNTY, STATE OF UTAH
|
|
|
SHORE LODGE ESTATES
HOMEOWNERS ASSOCIATION, a Utah Nonprofit Corporation
Plaintiffs,
vs.
TOWN OF GARDEN CITY, a
Utah Municipal Corporation; JOHN SPUHLER, in his Official Capacity as Mayor
of the Town of Garden City
Defendants.
|
COMPLAINT
Civil
No. _________________
Honorable
___________________
|
Plaintiff
Shore Lodge Homeowners Association (“Shore
Lodge HOA”), by and through its legal counsel, complains against defendants
Town of Garden City (“Garden City”)
and John Spuhler (“Mayor Spuhler”)
as follows:
PARTIES
1.
Plaintiff Shore
Lodge HOA is a Utah nonprofit Corporation.
2.
The membership of
the Shore Lodge HOA consists of the owners of each of the twenty-nine (29) lots
within the Shore Lodge Estates Subdivision (“Subdivision”) as shown on the Amended Plat of Shore Lodge Estates
(“Amended Plat”).
3.
The Amended Plat
was recorded with the County Recorder of Rich County, Utah, in 1963. A copy of the Amended Plat is attached hereto
as Exhibit "A."
4.
Defendant Garden
City is, pursuant to Utah Code Ann. § 10-2-125 and § 10-2-301, a Utah municipal
corporation designated as a town.
5.
The Subdivision,
as identified and described in the Amended Plat, is located within Rich County,
and Garden City claims the Subdivision is within the municipal boundaries of
Garden City.
6.
Defendant Mayor
Spuhler is the duly elected mayor of Garden City and is responsible for
directing the improper actions described in this Complaint.
JURISDICTION AND VENUE
7.
This action seeks
declaratory and injunctive relief. This Court has jurisdiction pursuant to Utah
Code Ann. § 78A-5-102(1). This Court
also has jurisdiction over the Fourth Cause of Action set forth below pursuant
to Utah Code Ann. § 24-1-103 regarding the private property that Defendants
unlawfully seized for forfeiture.
8.
In this action,
Shore Lodge HOA seeks a determination regarding rights and interests in real
property located in Rich County, Utah, and Venue is proper pursuant to Utah
Code Ann. § 78B-3-301.
GENERAL ALLEGATIONS
9.
The Amended Plat
subdivides certain real property that is situated on the south side of Garden
City and is bounded on the west by Bear Lake Blvd (State Road 30) and the east
by the shore of Bear Lake.
10.
The Amended Plat
identifies twenty-nine (29) residential lots and seven (7) common driveways (the
“Driveways”). The Driveways provide
the adjacent lots with ingress and egress access to State Road 30.
11.
The Amended Plat
includes a section titled “Owner’s Dedication” which contains standard
boilerplate language typically found on subdivision plats.
12.
The Owner’s
Dedication States:
Know all men by these presents: That we, the undersigned owners of the land herein
described, having caused the same to be subdivided into lots and streets to be
hereafter known as the Amended Plat of Shore Lodge Estates, do hereby
dedicate for perpetual use of the public all parcels of land shown on this plat
as intended for public use.
(Emphasis in Original.)
13.
None of the
residential lots are designated or labeled for public use. Rather, they are privately-owned lots with
privately-owned residential structures.
14.
Likewise, none of
the Driveways shown on the Amended Plat are labeled “public,” nor do the Driveways
bear any designation stating they are “intended for public use.” The Amended Plat does not contain a legend
identifying or showing the Driveways as intended for public use. None of the Driveways
are shaded, cross-hatched or contain any other mark of differentiation from the
individual lots in the Subdivision.
15.
As a result,
according to the plain language of the Amended Plat, the Owner's Dedication did
not create or effectuate a dedication for public use of any of the Driveways.
16.
The developers created
the Driveways for the purpose of providing access to and from Highway 30 for
the owners of the lots within the Subdivision, not for the public at large.
17.
The Driveways were
not platted or created to provide public access to the shore areas of Bear
Lake.
18.
After the Amended
Plat was recorded, private gates were installed by the lot owners at the head
of each of the Driveways (near Highway 30). For approximately 50 years, the lot owners
used the private gates to prevent members of the general public from using the
private Driveways, and they did so without any objection from Rich County or
Garden City officials.
19.
The Driveways have
never been used by the public generally as a means to access the shore areas of
Bear Lake in any manner (pedestrian, vehicular or otherwise).
20.
Neither Rich
County nor Garden City has ever improved or maintained the Driveways.
21.
The Driveways were
never constructed or improved to the standards required for public roadways
under applicable County or City standards.
22.
Instead, the
owners of the lots adjacent to the Driveways have maintained the Driveways
themselves, at their own cost and expense, with varying levels of
improvement. Some of the Driveways are
primarily comprised of lawn or grass.
Portions of some Driveways have gravel, with others merely consisting of
dirt or natural landscape.
23.
Attached hereto as
Exhibit "B" are photos of some of the Driveways.
24.
As shown in the
photos, none of the Driveways have been improved with road base or sub-base in
accordance with the requirements for public roadways.
25.
For more than 50
years, owners of the lots within the Subdivision have had quiet, exclusive, and
uninterrupted enjoyment of the Driveways, and have – at their own expense –
installed and maintained their own private gates at the head of each of the Driveways.
26.
The owners of the
lots use their Driveways for vehicular access to their cabins and residential
structures, and to walk to and from the Bear Lake shore.
27.
Prior to the
actions of Mayor Spuhler, as set forth herein, no public official of Garden
City or Rich County has ever claimed that the Driveways are public rights of
way, nor have any such officials demanded that the Driveways be opened to the
public for beach access.
28.
On or about May 4,
2014, Garden City officials, acting at Mayor Spuhler’s direction, unilaterally
and without appropriate notice removed and confiscated the private gates from
the head of each of the Driveways. Further, Garden City officials installed
signs at the head of each of the Driveways inviting use by the public.
29.
Where the Shore
Lodge Estates has previously installed signs at the gates stating "Private
Property - Home Owners Only," the City erected new signs of its own
stating "Public Beach --
Non-Motorized Access." Attached
hereto as Exhibit "C" is a copy of one of the City's
newly-erected signs. Prior to the unlawful and improper confiscation of the
private gates, Mayor Spuhler and Garden City knew that the Shore Lodge HOA was
represented by legal counsel, and that the Shore Lodge HOA objected to Mayor
Spuhler's new-found position that the Driveways should be opened to the public
at large.
30.
Moreover, Mayor Spuhler
had previously acknowledged that the private gates served an important function
of protecting the private property of the lot owners in the Subdivision from
theft or vandalism.
31.
Nevertheless,
without due process of law and in derogation of the lot owners' private
property rights, Mayor Spuhler caused government employees to confiscate the
private gates and install the City's new signs.
32.
Garden City has
refused to return the gates without an agreement from members of the Shore
Lodge HOA not to replace the gates.
Garden City has no right to convert and retain possession of the private
gates, but nevertheless refuses to return the gates to the lot owners unless
the Shore Lodge HOA concedes to the City's demands.
33.
Garden City and
Mayor Spuhler have even threatened to issue citations for disorderly conduct
should members of the Shore Lodge HOA attempt to replace the private gates.
34.
The actions of
Mayor Spuhler and Garden City were taken in bad faith to promote Mayor
Spuhler's own agenda in total disregard of due process of law and the lot
owners' private property rights. Such
self-help actions should not be tolerated by the Court, especially when carried
out by government employees at the direction of an elected official.
FIRST CAUSE OF ACTION
(Declaratory
Judgment – Access Road Not Dedicated)
35.
Plaintiff
incorporates each of the foregoing allegations as if fully restated.
36.
Pursuant to Utah
Code Ann. § 78B-6-401, this Court has the power to “issue declaratory judgments
determining rights, status and other legal relations within its respective
jurisdiction.”
37.
The Amended Plat
contains a boilerplate Owner’s Dedication which states, in part, that “all
parces of land shown on this plat as intended for public use.”
38.
However, none of
the Driveways are affirmatively designated as “intended for public use.”
39.
There is no
indication of any sort on the Amended Plat that any of the Driveways are
“intended for public use.”
40.
In fact, it was
the intent of the developers of the Shore Lodge Estates Subdivision that the Driveways
be used for ingress and egress by the owners of lots adjacent to each of the Driveways.
41.
Garden City has
never maintained the Driveways and they have not been open to, or used by, the
general public for over 50 years.
42.
The Driveways were
never constructed or improved to the standards required for public roadways
under applicable County or City standards.
None of the Driveways have been improved with road base or sub-base as
required for public roadways.
43.
Instead, the
owners of the lots adjacent to the Driveways have maintained the Driveways
themselves, at their own cost and expense, with varying levels of improvement
for more than 50 years.
44.
Based on the
foregoing, plaintiff is entitled to a declaratory judgment that (i) the Driveways
have not been dedicated to the public, (ii) the Driveways are not open for
pedestrian access by the general public, and (iii) the Driveways are for the
private use of the adjacent lot owners in the Subdivision.
SECOND CAUSE OF ACTION
(Declaratory Judgment – The Public Has Not Acquired a
Right of Way Over the Driveways)
45.
Plaintiff
incorporates each of the foregoing allegations as if fully restated.
46.
Pursuant to Utah
Code Ann. § 78B-6-401, this Court has the power to “issue declaratory judgments
determining rights, status and other legal relations within its respective
jurisdiction.”
47.
After the Amended
Plat was recorded, the owners of lots within the Subdivision installed private gates
at the head of each of the Driveways.
48.
Thereafter, use of
the Driveways has been limited to owners of lots within the Subdivision and
their invitees. Garden City was provided
with keys to open the private gates for emergency access only, not for any
other purpose.
49.
There has never
been any period of time during which the public continuously used the Driveways
as a public thoroughfare.
50.
Based on the
foregoing, plaintiff is entitled to a declaratory judgment that the public has
not acquired a right of way over the Driveways through historical use or
otherwise.
THIRD CAUSE OF ACTION
(Injunctive
Relief – Requiring Garden City to Remove the Signs it has Installed and
Enjoining Mayor Spuhler and Garden City From Interfering With Subdivision
Owners’ Right to Restrict Public Access)
51.
Plaintiff
incorporates each of the foregoing allegations as if fully restated.
52.
After the Amended
Plat was recorded, owners of the lots within the Subdivision installed gates at
the head of each Access Road.
53.
Among other
things, the gates across the Driveways provided privacy, safety and security to
the lots within the Subdivision.
54.
Shortly after May
1, 2014, government officials – acting at the direction of Mayor Spuhler –
removed and confiscated the gates from the Driveways. The gates were removed
without appropriate notice and notwithstanding the fact that the Driveways are
not public property.
55.
Garden City and
Mayor Spuhler have refused to return the gates without a promise from members
of the Shore Lodge HOA to not replace or re-install the gates.
56.
Indeed, Garden
City and Mayor Spuhler have threatened to issue citations for disorderly conduct
should members of the Shore Lodge HOA attempt to replace their private gates.
57.
In addition,
Garden City has installed its own signs at the head of the now-open Driveways
inviting the public to use the Driveways to access the beach areas of Bear Lake.
58.
As a result, the
members of the Shore Lodge HOA have suffered, and continue to suffer,
irreparable harm because the inability to exclude the public from the Driveways
increases the risk of property damage, litter, vandalism, and other health and
safety concerns.
59.
Because the Driveways
are not public rights of way, Garden City and Mayor Spuhler had no legal
justification for directing that the gates be removed and inviting the public
onto the Driveways.
60.
Garden City and
Mayor Spuhler must be required to remove the signs they have wrongfully
installed on the Subdivision.
61.
Members of the
Shore Lodge HOA must be allowed to replace the gates and otherwise restrict
public entry to their private Driveways.
62.
Garden City and
Mayor Spuhler must be permanently enjoined from interfering with the rights of
members of the Shore Lodge HOA to restrict public use of the Driveways.
63.
In addition, the
Court should enter a preliminary injunction allowing members of the Shore Lodge
HOA to replace the gates during the pendency of this action.
FOURTH CAUSE OF ACTION
(Unlawful
Seizure/Forfeiture of Property)
64.
Plaintiff
incorporates each of the foregoing allegations as if fully restated herein.
65.
By forcibly
removing the private gates of Plaintiff, Garden City and Mayor Spuhler treated
the gates as if they amounted to criminal trespass.
66.
Defendants'
actions in confiscating the private gates constitute an unlawful seizure for
forfeiture of the private gates.
67.
Defendants,
however, failed to comply with the statutory requirements for seizing property
(see Section 24-2-102(1) of the Utah Code, allowing property to be
seized by a peace officer or other authorized person only "upon process
issued by a court having jurisdiction over the property...").
68.
Defendants have
also failed to provide the required notices and receipt required by Section
24-2-103 of the Utah Code.
69.
The Shore Lodge
HOA qualifies as a "claimant" under Section 24-1-102 of the Utah
Code.
70.
Defendants
willfully violated the statutory requirements for seizure and forfeiture of
private property.
71.
Defendants must be
ordered to promptly return the private gates to Plaintiff and to allow the same
to be re-installed at Defendant's cost and expense.
72.
In pursuing this
action to recover the private gates that the City wrongfully seized, the Shore
Lodge HOA is entitled to recover all of its legal costs as set forth in Section
24-1-102(12) of the Utah Code.
REQUEST FOR
ATTORNEY FEES
73.
Plaintiff
incorporates each of the foregoing allegations as if fully restated.
74.
Because of the
actions of Garden City and Mayor Spuhler, as set forth herein, the Shore Lodge
HOA has been obliged to retain counsel to initiate this action to protect the
right of its members.
75.
The claims that Garden
City and Mayor Spuhler have asserted are without factual or legal foundation.
76.
Pursuant to Utah
Code Ann. § 78B-5-825, plaintiff is entitled to an award of the reasonable
costs and attorney fess incurred in prosecuting this action.
77.
Plaintiff is also
entitled to an award of attorney fees and costs pursuant to Utah Code Ann. § 24-1-102(12).
PRAYER FOR RELIEF
WHEREFORE,
Plaintiff prays for the following relief from this Court:
A. On the First Cause of Action, for
declaratory judgment in favor of Plaintiff as requested in the First Cause of
Action;
B. On the Second Cause of Action, for declaratory
judgment in favor of Plaintiff as requested in the Second Cause of Action;
C. On the Third Cause of Action, for
preliminary and permanent injunctive relief as requested in the Third Cause of
Action;
D. On the Fourth Cause of Action, for an
Order requiring Defendants to promptly return the private gates to Plaintiff
and to allow the same to be re-installed at Defendant's cost and expense.
E. Preliminary injunctive relief ordering
and restraining Garden City and Mayor Spuhler in the manner described above
during the pendency of this action;
F. An award of reasonable costs and
attorney fees incurred in this action; and
G. Such other and further relief as the
Court deems appropriate under the circumstances.
DATED
this 3rd day of June, 2014.
York Howell
/s/
Paxton R. Guymon
Daniel
C. Dansie
Attorneys
for Plaintiff
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