We are very concerned at what we have been hearing from Steve Simmons, Susan Packer and Howard Creed about the tentative revision of the original Dan Cox subdivision agreement which was voided by the Judge Willmore decision last year in favor of Simmons and his neighbors.
[ Steve Simmons’ letter concerning this issue, Providence City vs. Private Property Rights, can be found by clicking the link. ]
Here is the story so far, to the best of our understanding:
2011
Providence City annexed the private driveway called 2100 South (not in Providence at the time) in error, believing the Cache County plat map was correct in showing that driveway was a public right-of-way. The driveway in question, built by the current owner’s father Don Simmons in 1991, does not appear on any official Cache County road map past or present . It was only on a plat map. Utah law clearly states a plat map is not legal proof of a road’s ownership by government.
None of the owners of adjacent land were informed of the annexation of the “2100 South” private driveway, although the Utah State Code requires them to be informed in writing by the county and/ or city in question. Not having been informed of the annexation, property owners with adjacent land missed the deadline for protesting the annexation.
2012
Steve Simmons, owner of the “2100 South” private driveway, learned of the annexation of his driveway nine months after the fact.
Steve Simmons filed a petition to Cache County to vacate its right-of-way claim on his property, but received no reply.
Failing to reach a negotiated settlement with the developer, Cache County and Providence City, Simmons and six neighbors (all of whom live on the private driveway deceptively labeled “2100 South”) filed suit in District Court against Cache County, Providence City and developer Dan Cox requesting they vacate their claim to a right-of-way on Simmons’ private property.
At the opening of the case presentation in District Court, the Cache County Attorney testified that Cache County had no proof of a legal right-of-way on the driveway called 2100 South and bowed out of the case.
Providence City and the developer gave Simmons et al. the impression that they wanted to continue to fight the law suit anyway for two more years. We also learned from Mr. Simmons that during that period the developer boasted he could afford to bury the plaintiffs in legal costs.
2017
MARCH
3/13 Judge Thomas Willmore decided in favor of the six “2100 South” plaintiffs. (Case # 150100236) Mr.Cox had removed Simmons’ fence and some trees while the law suit was still ongoing when Cox believed he owned the fence line (due to a faulty survey). Cox also installed a sewer line in an irrigation ditch which he believed was on his property but was shown by Willmore’s decision not to be on Cox’s property. Judge Willmore’s decision included orders for Cox to restore the fence and repair any damage he had done. It took Cox eight months and two additional hearings (and paying some of plaintiffs’ legal expenses) to remove the sewer line, rebuild the irrigation ditch and restore the fence.
2018
MARCH
3/13 Simmons’ written requests to Providence City, Cache County and the State of Utah to correct their error on the Cache County street map (which showed erroneously that his driveway was a public right of way) were not answered.
3/18 Mayor John Drew sent his “memo” listing possible options for the completion of the Dan Cox subdivision. One of these options was “Eminent Domain, may not be legal”. The memo was reviewed at a Providence City Council meeting where Mayor Drew and City Administrator Bankhead reiterated their concern that they “follow the Master Plan”. (Simmons observed that a planned major east-west road at the location of his private driveway appeared on the Providence Master Plan’s Transportation Plan map publicly only starting May of 2018.)
APRIL
4/18 Simmons addressed Providence City in writing with a request that they correct the Cache County map error showing his driveway erroneously as a public right of way.
4/18 Dan Cox submitted a proposal to Providence City for a new Subdivision permit with his new development plan.
MAY
5/8 Providence Mayor John Drew stated in a public City Council meeting his preference for Dan Cox to avoid losing two lots by installing an isolated east-west length of “road” narrower than what is permitted by Providence ordinances. Originally Cox had planned to have a cul-de-sac on that boundary of his property, but did not want to install a cross street sufficiently close to the cul-de-sac as required by Providence Ordinances.
5/25 Simmons and neighbors met with Mayor Drew and City Administrator Bankhead to discuss the issues. The city officials informed Mr. SImmons et al. that requiring Mr. Cox to build a short section of one-half of a non-existent road would not violate the City code as it will be labeled an “unfinished” or “incomplete road.” (?) The city officials insisted that all of the land south of the Cox road is going to be subdivided and developed and that will solve the road problem “someday”. (?) The mayor confidently but mysteriously predicted that no one would buy a city lot with a road in the front and a 10 foot driveway in the back. (?) Mayor Drew also opined that Mr. Simmons’ trees and irrigation ditch didn’t matter, which would mean they had no value as real estate or as improvements. The fact that the developer felt he could sell lots on a cul-de-sac with the back of the lot to the Simmons property didn’t matter to Mayor Drew and Ms. Bankhead. It seemed to Mr. Simmons that the City officials were somehow obsessed with the notion of taking his driveway, in spite of Judge Wilmore’s Decision that they had no right to do so. Seven years and an expensive and lost lawsuit had not changed the minds of these two City officials.
Mayor Drew and Ms. Bankhead also provided Mr. Simmons with an instruction kit as to how he could correct the annexation map error at his expense (the Cache County fee is $150).
JUNE
6/2 Simmons wrote an email to the City Council members requesting that the issue be solved now, this month. He requested the City either build the complete road they so ardently desire somewhere else or offer to buy the land they want. Mr. Simmons and his neighbors find it very frustrating that Mayor Drew continues to deny any plans for using Eminent Domain action on Simmons’ property while trying to prepare a subdivision plan that will make it extremely likely in the vague future.
The Utah State Code governing a public taking of private property requires that the planned use for such property be a legal use, that the taking be necessary for the implementation of that legal use, that construction toward such a legal use commence promptly following such a taking and that the proposed new use must be an improvement over the previous use of the property.
The Providence City code only allows two road width options for new roads: with paving sections of 37 feet and 56 feet. There is no legal 25-feet- wide road option for a new road. Currently Providence Mayor Drew has informed Simmons officially that his preference will be to require Cox to build a short stretch of half of a 56-feet-wide road on the south border of Cox’s property, with the plan that eventually (no date proposed) Providence City will take Simmons’ driveway and part of his yard via Eminent Domain for a road which cannot proceed all the way to Highway 89 anyway because USU has a big piece of property in the way of such a path–and the USU property is not subject to municipal Eminent Domain. The location of the USU property suggests that another location would be best for a wide thoroughfare, not the “2100 South” driveway.
The story so far, then, is that Providence City erred in annexing what turned out to not be a public right of way, failed to inform adjacent landowners of the annexation (as required by state law), lost in District Court when it was revealed that there was no such public right-of-way to take, failed to answer written correspondence asking the City to correct the error on the County map, now instructs Simmons to pay Cache County’s $150 fee as part of his application to the County to correct their map, and plans to (illegally) require Dan Cox to install a tiny section of one-half of a legal road– with the supposed plan of using Eminent Domain at some unspecified future date to seize the remainder of their required road width from Simmons by seizing his driveway and part of his front yard (already declared officially in District Court not to be a public right-of-way). In the alternative, they plan to await the appearance of a developer who will buy buy the Simmons parcel of 1.35 acres, tear down the house, built the other half of the city’s road, install a cul-de-sac on the west end at the USU property and subdivide the remaining land into ¼ acres lots.
An obvious major problem with this plan is that there is nothing in the Providence City Ordinances that requires an applicant to install a section of a road which does not exist, so Cox cannot legally be required to install such a section of a non-existent road. There is nothing in the Ordinances allowing one-half of a section of road to be built in such a location that its completion will require the use of Eminent Domain. It is not feasible for the current City Council to make decisions which would require future City Councils to enact an Eminent Domain action. Also, the most reasonable place for an east-west major street rather than the private drive (“2100 South”) would be along the 600 South. If Mr. Cox is required to place the back sides of two lots up against half of a short stretch of a non-existent road, with the expectation that the houses built on those lots will eventually look out on a major thoroughfare, that would seem be very poor planning–almost the opposite of planning.
