Some details of a nine-year-old planning and zoning puzzle remain a mystery, but Ellis County commissioners say maintenance of a private road in the Louis Kuhn addition east of Hays is not the county’s responsibility.
The sand road is private property, according to Public Works Director Bill Ring, and state law forbids the county from maintaining it.
“The county cannot work on private property, both by statute and from a liability standpoint,” Ring told the county commissioners Monday at their regular meeting. “If we had a grader working on that road, and it got in an accident, the first thing an insurance company is going to ask us is, ‘Why were you working on private property?’ ”
Speaking at the meeting Monday on behalf of Kuhn and his wife, Lorene, Hays real estate agent Galen Romme asked the county to resume maintaining the sand road to the addition, which sits on the south side of Old Highway 40 east of 280th Avenue.
Romme said the county agreed to do so back in 2010 after Kuhn, Romme and his attorney Tom Wasinger worked to submit the addition for approval. The county had been doing the maintenance until Ring had it stopped two years ago.
“There are 45 jobs operating out of that development every day,” Romme said. “And the roads are getting pretty bad. We’ve got some heavy truck equipment, 40-foot containers, rolling through there, and then we have some million-plus-dollar fire equipment going in and out of there, and it’s kind of hard on them with the ruts.”
“We’re just here to find out what we need to do,” Romme said.
Ring said he has discussed the matter with business owners there to explain the road is private.
Although the city of Hays approved the addition back in 2010 since it is within the 3-mile city-county shared boundary, but the county did not, which makes the road private property.
As a result, Ring said, he called for maintenance to stop on the 2,100 feet of road, a decision he has made regarding other private roads after becoming public works director three years ago.
“My position has got to be protecting the best interests of Ellis County and keeping us out of any litigious situation,” Ring said, noting that working on private property is a violation of Kansas statutes.
Commissioner Dustin Roths said the county and developer should figure out how to take care of the businesses.
“I think that’s something that we need to do, but it can’t be at our cost initially,” Roths said. “We don’t have the funds to do this.”
In researching the historical records at the county and the city, Ring said, documents from 2010 show the property owners agreed to maintain the road until it officially became a county road.
But the Kuhn 4th addition was never presented to a vote by the county, and a maintenance agreement was never approved, Ring said.
At a July 6, 2010, meeting of the Hays Area Planning Commission, those commissioners approved the zoning change. The Ellis County Commissioners at the time talked about the addition at several of their meetings but always tabled the topic.
“Nothing was done, it was never brought up for the commission to vote on,” Ring said.
Meanwhile, the Hays City Commission approved the final plat in December 2010, but shouldn’t have, Ring said, since the county hadn’t.
“They accepted something that our commission never approved,” Ring said.
A concern is whether the road was built to county standards, he said, citing the heavy truck traffic and the need for more than one entrance for fire and emergency trucks.
“Staff was never asked to inspect the completed roads,” Ring said. “Semi trucks have gotten stuck on the roadway going into the development, blocking other businesses’ access to their property.”
County Commission chairman Dean Haselhorst asked about any engineering work done for construction of the roads. Ring said there are no such records filed with the county, nor does anyone from the county remember Kuhn or others working on it with county staff.
“I’ve asked about it for two years,” Ring said, saying he could find nothing in writing. “If somebody can bring me more paperwork, if I’ve missed something or there’s a record somewhere, but conversations that occurred ... I don’t know who said what to who, if anything was said. So I have to rely on the records that we have in place.”
“I do agree with you, Bill, 100 percent on the liability issues,” said Commissioner Butch Schlyer.
“Bill, do you have any indication on why we would have started maintaining these roads?” Roths asked.
Ring said there may have been an assumption by county employees that it had been approved.
“Now we know that we shouldn’t be in there,” Ring said.
Romme told the county commissioners that city attorney John Bird signed off on the addition paperwork in 2010, including the road, and said there was no need for the county to be involved.
“Does the city want to maintain it then?” Haselhorst asked.
Even if the addition is presented now, Ring said, there would still be requirements for the road to be brought up to county standards, whether a dirt, rock or concrete road.
Building a road to meet the standards might require gaining right-of-way from another owner, the Younger Trust, on the east side of the road, whether by outright purchase, eminent domain or condemnation.
“OK, we’ll probably have to visit with legal counsel on this further,” Haselhorst said. “If it was never built to county spec, how do we know what we’re getting, for one? Two, what’s going to be the cost?”