Neighbors sue over access to Baldy
Property rights dispute taken to Fifth District Court
"A prescriptive easement is a right one acquires by trespassing
for more than five years without interruption. What you’re being asked to do is take
sides between a property owner and a group of trespassers."
-Ed Lawson, Ketchum attorney
By GREG STAHL
Express Staff Writer
Small-town Idaho isn’t always the neighborly place it seems.
A hot dispute between neighbors in a Warm Springs neighborhood has turned
to the Fifth District Court in Hailey to resolve a property rights and access issue, but
that didn’t avoid fireworks at a Ketchum Planning and Zoning Commission meeting
Monday night.
All the key players were there: a city councilman, ex-city councilman and
developer, ruffled resort-city residents, three lawyers and, of course, a board of public
servants attempting to sift through the mess.
Long-time Ketchum resident and developer Chip Fisher has owned a plot of
land at the end of Shady Lane, near the base of Warm Springs, since 1978, but his
neighbors are claiming property rights on the parcel.
On Monday night, Fisher sought design review approval from the P&Z for
his plans to plant vegetation in a riverside area and build a new home and several small
cabins on the two-acre property.
But a trail circumvents Fisher’s property and is a popular walking
path and winter access to the Warm Springs base of Bald Mountain for residents of the
adjacent Aspen Drive neighborhood.
Fisher’s plans would obstruct the trail with a cabin, retaining wall
and parking area.
Neighborhood residents, who frequently use the path, aren’t willing
to part with it.
On Monday morning, 20 of the neighborhood’s residents filed a lawsuit
in Fifth District Court claiming a prescriptive easement to the part of Fisher’s
property the trail crosses.
A prescriptive easement is a property right, though not ownership, that is
gained when use of property is ongoing for five years or longer, without the
landowner’s consent but with the landowner’s knowledge, Ketchum city attorney
Margaret Simms said.
The P&Z wrangled primarily with the issue of whether to go through
with design review on Fisher's plans despite the fact that a court hasn’t yet decided
on the validity of the neighbors’ claim of a property right.
If the plans were approved, and a court favored the claim of a
prescriptive easement, Fisher could be forced to remove obstructions, thereby nullifying
any decisions the P&Z makes now, plaintiffs’ lawyer Roger Crist said.
Fisher’s lawyer, Ed Lawson said, however, the P&Z should not make
its decisions based on a separate court issue.
"A prescriptive easement is a right one acquires by trespassing for
more than five years without interruption," he said. "What you’re being
asked to do is take sides between a property owner and a group of trespassers."
Fisher, too, said the city should consider the design review application
outside of the pending lawsuit.
"I, like Ed [Lawson], feel that the city has no place in this fight.
To say you are going to put it off is to take the side of the trespassers."
Indeed, the blood was hot between Fisher and the opponents of his
construction proposal.
At the conclusion of the hearing, the P&Z voted 4-1, with Commissioner
Rod Sievers voting against, to continue the issue to a P&Z meeting on Sept. 11 in the
hopes that the neighbors and Fisher can work out an amenable solution to the conflict.
But commissioners said it was a tough decision to make without appearing
to take sides.
"If we do nothing, we’re taking sides. If we do something,
we’re taking sides. I’d like to find a way to not be taking sides,"
Commissioner Peter Gray said.
Warm Springs resident and Ketchum City Councilman David Hutchinson is one
of the neighbors who filed the suit against Fisher.
"I’m going to get to follow a path whether [Fisher] builds it or
not," he told the commission. "It’s my right."
Responding to allegations from Lawson asserting that he has a conflict of
interest as a city councilman, Hutchinson said, "I’m here as a private citizen
to protect my rights. Because I’m a city councilman, it’s not fair to tell me I
don’t have any private property rights."
Hutchinson then took the issue one step further.
"This should be a public path," he said. "The city needs to
take a public perspective. The city needs to preserve that path."
Hutchinson asserted that the city should take an active part in trying to
preserve a path in that location for the entire public, not just for residents in the
neighborhood. The prescriptive easement would only grant the easement to those who filed
the lawsuit.
Ketchum city attorney Margaret Simms told the commissioners that if they
think it is in the city’s interest to try to acquire an easement there, the issue
should be taken to the city council for further consideration.
The commission opted not to pursue that avenue for the time being.
Fisher was steadfast in his opposition to any kind of path through the
property. He said that if a court rules in favor of the prescriptive easement, he will
accommodate a path of some sort for those who filed the lawsuit, but he’ll fight that
legal battle, too.
"This is the goddamndest thing I’ve ever heard," he said in
a Tuesday morning interview. "I don’t even know who’s suing me."
Though he hadn’t seen a copy of the complaint on Tuesday, Fisher
predicted that some of the people who filed don’t have standing because they already
had verbal permission to access his property.
"What’s going on at the city that wants to advance this whole
thing?" he asked. "Why is the city continuing my application for a riparian
planting plan? The answer is because they don’t want me to build out there. Some
notion of a path is superior to property rights.
"Those who don’t have permission have openly and wantonly
trespassed on my land. Those who are claiming my land are trespassers. If you don’t
have permission, you’re trespassing."
