In 2012, the Missouri General Assembly gave circuit court judges the ability to create road maintenance plans over shared private roads under some circumstances, enacting what is now section 228.369 of the Revised Statutes of Missouri. I wrote about the promises of this legislation when it was enacted, pointing out some of its features and limitations. Now we have the first appellate decision concerning this statute, which indicates that judges in trial courts can exercise discretion in:
- the manner in which assessments for road maintenance are allocated among the property owners who use the road
- designating which portions of a road are to be maintained by particular classes of property owners.
The case is Stieren v. Grothaus, which arose in Jefferson County, Missouri, where Sugar Mountain Road ran from a public road a distance of 713 feet to the Caress home. Later, Fordee Ridge Estates subdivision was created, and Sugar Mountain Road was extended another 3,207 feet to provide access to and from the lots in Fordee Ridge Estates.
The judge in the trial court ordered that the Caress property would be responsible only for the 713-foot portion of the road, (which the appellate opinion refers to as the “Entrance and Hill”) while the owners of lots in Fordee Ridge Estates would be responsible for the Entrance and Hill, plus the 3,207 portion of Sugar Mountain Road (referred to as the “Subdivision Road.”). Some Fordee Ridge owners were unhappy with the trial court’s order and appealed, claiming that:
- the court erred in apportioning the maintenance costs for the Subdivision Road equally among the Fordee Ridge Estates owners, omitting the Caress property owners whose properties were not in the Fordee Ridge Estates subdivision, and
- the court was without authority to divide Sugar Mountain Road into two sections (the Entrance and Hill section and the Subdivision Road section).
The appellate court pointed out that the language in section 228.369.2 gives the trial court the discretion to apportion the road maintenance costs “commensurate with the use and benefit to the residences benefitted by the access” by various methods, “including, but not limited to equal division, or proportionate to the residential assessed value, or to front footage, or to usage or benefit.” Thus the court’s apparent conclusion that Caress property outside the subdivision did not benefit at all from the Subdivision Road was justified on the basis of evidence of use and availability for use by mail trucks and emergency vehicles.
Even though the use by Fordee Ridge Estates owners was not equal, the appellate court noted that it “was reasonable for the the trial court to find that the very existence of a road providing access confers the same benefit to all properties: access.”
On the issue of whether the trial court was authorized to divide Sugar Mountain Road into to portions for the purpose of allocating the financial responsibility for maintenance, the appellate court looked at the evidence that the Entrance and Hill portion was built and used earlier and that the Caress properties did not use or benefit from the Subdivision Road, built later as an extension of the original Sugar Mountain Road. The appellate court concluded under these facts, “[t]he only way to apportion costs commensurate with these findings was for the trial court to establish a separate assessment for each portion of the road.”
The appellate decision should give trial judges confidence that they can take evidence and essentially force a maintenance contract on those who benefit from a private road that falls under section 228.369, with the method of allocating the costs to be based on the evidence, allowing the judge to divide the private road into sections as necessary under the circumstances.
While section 228.369 is intended to address a very real problem, it puts judges in a position of creating permanent, substantial financial relationships, which is much different from judges determining the extent of liability based on existing contracts or other relationships. Some judges will be comfortable with this expanded role, and others will wonder why the legislature would grant them a power that is in many cases beyond their expertise.