EPHRAIM—The city council voted April 6 in a split decision to vacate a public access easement in a northeast commercial district to settle a dispute between a new developer and an existing business.
Swagg Properties is developing a lot into flex office/industrial spaces for small business use and put down asphalt and a gutter around its property. However, Layton Autobody and Paint, whose property is adjacent, has been using the public access easement to get larger vehicles into its bay at 758 N. 50 East.
In October 2021, when Swagg put down the asphalt and gutter, it cut off Layton’s access to its south bay door, which was used to get larger size vehicles into his business. Owner Robby Layton protested to the developer and the planning and zoning commission that he should be allowed to use the public access easement.
At the council meeting on April 6, Bryan Kimball, Ephraim City community development director, told the council that public access easements are typically created whenever a lot is “landlocked,” meaning there must be some kind of access in the absence of roads.
A few years ago, one lot in northeast Ephraim was indeed landlocked, and the public access easement was created. Since then, the lots in question have been combined and now sit adjacent to a public city street. General procedures allow the city to vacate public access easements when developers improve the property.
Layton claimed he would suffer economic damage if he wasn’t allowed to use the easement but didn’t have any documentation to back up his claim.
Kenny Hardy, speaking for Swagg, said his company would lose millions that have been invested into this project because they wouldn’t be able to rent the spaces out if the easement is not vacated. Hardy said, “The city would lose out on new business and services coming to town, lost job opportunities and lost tax revenue.”
Hardy argued that a public access easement was not a private easement, and Layton had no more right to the access than anyone else because it was to protect public, not private, rights. He accused Layton of trying to extort Swagg into a “money grab” over the disputed area.
Layton and Swagg had been attempting since October to negotiate a settlement that would compensate Layton for his loss of the easement, but hadn’t been able to reach an agreement, and so the matter was brought to the city council to decide.
Councilman Tyler Alder commented that at some point, Ephraim City may have missed a procedure or requirement that enabled the conflict to happen. “Ideally, we should have discovered this conflict before Swagg began their construction, but the city didn’t, and now, here we are, in a dispute.”
Craig Rasmussen, of the Ephraim planning committee, said, “It was represented to us that the parties were instructed by planners that they settle this before construction began, but it was found to be the case later on that Layton and Swagg had not settled the issue of the easement.”
Kimball said, “Staff feels there is good cause for the easement to be vacated,” and recommended that action to the council.
Ephraim’s attorney, Daniel VanBeuge, clarified that for the easement to not be vacated, it must be shown that a party will suffer “substantial material damage,” and “Mr. Layton has not given evidence that shows he will be substantially injured.”
Mayor John Scott asked VanBeuge, “In your opinion, which of these two parties will be more substantially injured?” and he replied, “Under current circumstances, I believe Mr. Hardy would suffer the greater harm.”
The council eventually decided by a 3-2 vote in favor of Swagg, stating that the company would bear the greatest loss to business, and voted to vacate the easement.
Hardy concluded, “We, as the owners and developers, are obviously pleased that the city council made the decision to vacate the easement so that we might ‘open the doors’ of this project to the residents and future businesses here in Ephraim that are needing a place to house their business. Our highest admiration and respect goes out to the mayor and city council members for the manner in which they handled this situation.
“The wisdom shown, the research completed, and the overall analysis of the facts on display by the council members concerning this public easement were second to none and were handled with much professionalism and dignity.
We appreciate their willingness to see the facts and evidence of this situation without letting emotions or personal feelings get in the way of their decision. We have appreciated the opportunity to meet and work with the staff of Ephraim City and look forward to now finishing our project and seeing the fruits of this project come forth here in Ephraim.”