By Kevin Murphy
For the Times
MADISON - In a subdivision called Hosanna Estates, you would not think residents would have to go to court to get a road built in front of their houses, but that has happened in the Town of Albany.
Last week, a state appeals court ruled that the town accepted dedication of Proverbs Pass as a town road when it accepted and recorded the plat for the liturgically-themed subdivision.
The town entered into an agreement in 2004 with Sunland Development for a 26-lot residential subdivision. The agreement included a number of provisions including construction of roads.
The town board conditionally approved the plat and it was recorded with the Green County Register of Deeds. Individuals began buying lots and building homes on Proverbs Pass.
However, the developer ran out of money before the road was completed. One "binder" layer of asphalt was put down, but the top layer was not. The out-of-state developer became insolvent and left the road unfinished.
Before construction began, the town had a $350,000 letter of credit from the developer, but the town did not renew the letter before the subdivision road work was done. The developer and the letter both were gone, leaving the town without ready funds to finish the job.
The town did not accept Proverbs Pass as a town road and has not maintained it, according to the opinion the District IV Court of Appeals issued Thursday.
Residents including Matthew and Jenny Runkle, Robert and Frances Kubesh, and Jeremy and Amy Job filed suit against the town in 2012 seeking a judgment that the town accepted the Hosanna Estates plat and a court order to complete Proverbs Pass.
However, Circuit Judge James Beer dismissed the residents' suit finding that the town had not accepted the plat and dedication of Proverbs Pass as a public road. Beer concluded that the town conditioned its acceptance on the developer meeting provisions of its agreement. Formal acceptance had not occurred because the developer did not complete required work, Beer ruled.
The homeowners appealed.
The attorney for the town's insurer, Timothy Yanacheck, argued that Beer's ruling was correct otherwise the town step into the "shoes of a bankrupt developer and pay the developer's financial obligations."
The developer was sued, but learning there was no money to be acquired, the suit was dismissed, said Yanacheck.
The District IV court reversed Beer, finding that the town conditioned its acceptance of the plat on receiving the letter of credit, recorded the plat and the developer completed some provisions of the agreement.
"The Town concedes that all three conditions were met and that the Town approved the plat," Judge Paul Higginbotham wrote in the eight-page opinion.
The appeals court left it for Beer to decide if the town has any obligation to build and maintain Proverbs Pass, Higginbotham added.
"The ruling settles the plat issue ... the town did violate the owners' rights by failing to accept the plat ... It left it up to (Beer) to decide whether the road will be constructed," said Yanacheck.
Homeowners' attorney Richard Yde said the appeals ruling establishes Proverbs Pass as a town road and he wants to discuss with town officials when it will be completed.
"We're hoping the town will do what it should have done all along; after issuing (building) permits to the homeowners it should have had the road finished," Yde said.
A call to town chair Keith Hobson regarding the road was not returned before deadline.
For the Times
MADISON - In a subdivision called Hosanna Estates, you would not think residents would have to go to court to get a road built in front of their houses, but that has happened in the Town of Albany.
Last week, a state appeals court ruled that the town accepted dedication of Proverbs Pass as a town road when it accepted and recorded the plat for the liturgically-themed subdivision.
The town entered into an agreement in 2004 with Sunland Development for a 26-lot residential subdivision. The agreement included a number of provisions including construction of roads.
The town board conditionally approved the plat and it was recorded with the Green County Register of Deeds. Individuals began buying lots and building homes on Proverbs Pass.
However, the developer ran out of money before the road was completed. One "binder" layer of asphalt was put down, but the top layer was not. The out-of-state developer became insolvent and left the road unfinished.
Before construction began, the town had a $350,000 letter of credit from the developer, but the town did not renew the letter before the subdivision road work was done. The developer and the letter both were gone, leaving the town without ready funds to finish the job.
The town did not accept Proverbs Pass as a town road and has not maintained it, according to the opinion the District IV Court of Appeals issued Thursday.
Residents including Matthew and Jenny Runkle, Robert and Frances Kubesh, and Jeremy and Amy Job filed suit against the town in 2012 seeking a judgment that the town accepted the Hosanna Estates plat and a court order to complete Proverbs Pass.
However, Circuit Judge James Beer dismissed the residents' suit finding that the town had not accepted the plat and dedication of Proverbs Pass as a public road. Beer concluded that the town conditioned its acceptance on the developer meeting provisions of its agreement. Formal acceptance had not occurred because the developer did not complete required work, Beer ruled.
The homeowners appealed.
The attorney for the town's insurer, Timothy Yanacheck, argued that Beer's ruling was correct otherwise the town step into the "shoes of a bankrupt developer and pay the developer's financial obligations."
The developer was sued, but learning there was no money to be acquired, the suit was dismissed, said Yanacheck.
The District IV court reversed Beer, finding that the town conditioned its acceptance of the plat on receiving the letter of credit, recorded the plat and the developer completed some provisions of the agreement.
"The Town concedes that all three conditions were met and that the Town approved the plat," Judge Paul Higginbotham wrote in the eight-page opinion.
The appeals court left it for Beer to decide if the town has any obligation to build and maintain Proverbs Pass, Higginbotham added.
"The ruling settles the plat issue ... the town did violate the owners' rights by failing to accept the plat ... It left it up to (Beer) to decide whether the road will be constructed," said Yanacheck.
Homeowners' attorney Richard Yde said the appeals ruling establishes Proverbs Pass as a town road and he wants to discuss with town officials when it will be completed.
"We're hoping the town will do what it should have done all along; after issuing (building) permits to the homeowners it should have had the road finished," Yde said.
A call to town chair Keith Hobson regarding the road was not returned before deadline.