Rapid City developer Doyle Estes is responsible for fixing the sunken, wavy roads in Big Sky subdivision, the South Dakota Supreme Court ruled this week.
In a 4-1 decision, the justices overturned 7th Circuit Judge Wally Eklund’s 2010 ruling and sided with the city of Rapid City, saying that posting surety does not absolve Estes or any other developer from building public improvements up to city standards.
The city sued Estes in 2008 to force the repair of “major deficiencies” in Big Sky roads, including Degeest Drive and Hansen Lane.
Estes had posted surety for the improvements but it expired before the city accepted the final work, a fact that Estes argued made him no longer legally responsible for the improvements.
But the Supreme Court rejected his argument and said taken as a whole, Rapid City’s ordinances hold developers liable until the city formally accepts the public improvements. The city has never accepted ownership of the roads in Big Sky.
“If we were to agree with Developers’ argument, then any time a surety is posted a developer can do nothing and hope that the city will let the surety expire,” Chief Justice David Gilbertson wrote for the court.
City officials on Thursday, though, warned that even with the court’s ruling in their favor, it could still be awhile before the Rapid Valley roads are in good repair. The neighborhood, which straddles the city limits, is east of Elk Vale Road and north of Twilight Drive.
Acting City Attorney Tamara Pier said the city’s next step is to discuss with its outside legal counsel the best remedy based on the court’s decision.
“They’ve said the developer still has an obligation – now how do we get that repair done?” Pier said. Fixing the problem has been estimated to cost over $1 million.
Options include going back to the local courts or reaching a settlement, both of which could involve the contractors and subcontractors on the project, she said. In the original suit, the city asked the judge to order the repair of the roads, rather than damages.
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“Our goal is, of course, to get those roads repaired,” Pier said. “That’s what we’re going to be trying to figure out – how can we get that accomplished as expeditiously as possible.”
Even so, Mayor Sam Kooiker said the ruling is definitely a step in the right direction for both the city and the affected residents. As an alderman, Kooiker represented the affected neighborhood for nine years on city council.
“There are a lot of people affected by this,” Kooiker said. “The citizens of this neighborhood had a promise made to them for a drivable street, and that means you should be able to drive it in a car, not a dune buggy. It’s been a frustrating situation for the city for a decade now.”
Residents of Big Sky, who know that frustration first hand, said Thursday that they hope that the roads actually get fixed this time. A $150,000 settlement between Estes and J. Scull Construction in 2007 over the condition of some roads in the subdivision failed to result in any repairs, according to residents.
“When I tell people how to find my house, I say it’s the bumpy road. Everyone knows,” said Maria Cherni, who lives on Degeest Drive with her husband, Orest.
The couple bought their home in 2001 before the road started to fall apart. Now, Orest Cherni said it is like they are “black sheep” caught between the city and the county.
“We pay taxes. It’s a big amount for us,” Maria Cherni said. “We expect this money to go somewhere to improve it.”
Their neighbor, Gabe Olson, said the court’s ruling does make him feel a little more confident that the roads and the deep crater at the end of his driveway may finally get repaired.
“All we need now is the headache of having the road torn up,” Olson said.
Estes declined to comment Thursday, referring any questions to his attorney. Edward Carpenter, who is representing Estes in the suit, did not return a call for comment.
Contact Emilie Rusch at 394-8453 or email@example.com.