IN THE SUPREME COURT, STATE OF WYOMING

2014 WY 121

APRIL TERM, A.D. 2014

September 24, 2014

MERLIN H. ZOWADA and LORI 

ZOWADA,

Appellants

(Petitioners)

v.

MULLINAX CONCRETE SERVICE 

COMPANY, INC.,

Appellee

(Respondent).

S-13-0282

W.R.A.P. 12.09(b) Certification 

from the District Court of Sheridan County

The Honorable William J. Edelman, Judge 

Representing Appellants:

H. W. Rasmussen, Attorneys at Law of Wyoming, P.C., Sheridan, Wyoming 

Representing Appellee:

Anthony T. Wendtland of Wendtland & Wendtland, LLP, Sheridan, Wyoming

Before BURKE, C.J., and HILL, KITE*, DAVIS, and FOX, JJ.

* Chief Justice at time of oral argument
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. 

Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, 

Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be 

made before final publication in the permanent volume.
1

DAVIS, Justice.

[¶1] Sheridan County landowners Merlin and Lori Zowada petitioned the Board of 

County Commissioners1to establish a private road to access their landlocked tract 

through property belonging to Mullinax Concrete Service Company. The Board’s first 

ruling in the case came before this Court in Mullinax Concrete Service Co. v. Zowada, 

2010 WY 146, 243 P.3d 181 (Wyo. 2010) (Mullinax I).

2

 We remanded to the district 

court with a mandate to direct the commissioners to compare the relative merits of only 

two alternative routes, and to determine whether the greater cost of one of the routes was 

justified. After further proceedings, the Board again established the road on a route not 

favored by the Zowadas, who challenge the ruling in this appeal. We accepted 

certification from the district court, and we affirm.

ISSUES

[¶2] The Zowadas raise two issues relating to Mullinax’s construction of a stormwater 

collection facility on the route sought by the Zowadas and Mullinax’s evaluation of the 

costs of constructing and maintaining a road on the route selected by the Board. We 

restate those issues as follows:

1. Should the Board have excluded certain facts as irrelevant because they relate 

to events that did not take place until after the Board received the viewers and appraisers3

report and held its first contested case hearing in 2007?

2. Were the Board’s findings supported by substantial evidence?

FACTS

[¶3] The Zowadas filed their petition on January 31, 2006. The Board appointed two 

sets of viewers and appraisers who considered six alternative routes for the private road, 

only two of which now remain in contention. They have come to be known as Route 1, 

championed by the Zowadas, and Route 6, the path the Board has now chosen twice. See 

 

1 The governing statutes, Wyo. Stat. Ann. §§ 24-9-101 and 103 (LexisNexis 2005), have been amended 

several times since the Zowadas filed their petition, and jurisdiction over these actions now lies with the 

district courts rather than boards of county commissioners. 

2 The parties returned to the Court a second time in Mullinax Concrete Service Co. v. Zowada, 2012 WY 

55, 275 P.3d 474 (Wyo. 2012) (Mullinax II). In that appeal, we determined that an amended statute for 

establishment of private roads did not apply retroactively to this case. Id., ¶ 11, 275 P.3d at 477. 

Mullinax II is not pertinent to the issues in this third appeal.

3

Pursuant to Wyo. Stat. Ann. § 24-9-101(h), three disinterested persons must be appointed to view the 

subject properties and proposed road locations, evaluate any damages to be suffered by the owner of the 

burdened property, and recommend to the decision maker the most reasonable and convenient route for 

the private road.
2

Mullinax I, ¶¶ 5-11, 243 P.3d at 183-85. The following is an aerial view of the general 

area and the original six proposed routes: 

Mullinex I, Appendix B.

[¶4] As the map shows, Route 1 proceeds north to the Zowadas’ land from Fort 

McKenzie Road, Wyoming Highway 337. It crosses the narrow eastern end of 

Mullinax’s roughly triangular property along its approximately 168-foot boundary with 

property housing a warehouse owned by Big Horn Beverage, Incorporated. 

[¶5] Route 6 begins on Highway 337 approximately 1,500 feet west of Route 1, 

proceeds north on Industrial Road for roughly 1,200 feet until it crosses an unused 

railroad bed that parallels what was the northern border of Mullinax’s property, and then 

proceeds to the southeast for nearly another 1,200 feet to the western border of the 

Zowadas’ land. In other words, one driving west on Highway 337 heading for Route 6 

would pass Route 1, travel a significant distance west, then north, and then double back 

east to the Zowada property. Route 1 is, of course, considerably shorter than Route 6. 

[¶6] After the Board’s November 2007 contested case hearing, but before it issued its 

findings of fact and conclusions of law in December 2008, Mullinax advised that it had 

purchased land abutting what had been the northern boundary of its property and 

extending north of the railroad right-of-way. Mullinax I, ¶ 12, 243 P.3d at 185. 

Mullinax’s previous lack of a legal interest in that land had profoundly affected the 

evaluation of Route 6 by both sets of viewers and appraisers.

[¶7] The first group of viewers and appraisers recognized that the Wyoming 

Department of Environmental Quality (DEQ) had mandated that Mullinax devise a plan 
3

to keep sediment-laden stormwater from draining off its property to nearby Goose Creek, 

and that an engineering study commissioned by Mullinax concluded that the best solution 

required placing a structure at the northern end of Route 1. Because there was no equally 

well-engineered alternative for stormwater control, the first set of viewers and appraisers 

rejected Route 1. They ultimately selected a problematic variation of Route 6. Aware 

that no right-of-way then existed north of the Mullinax property line, and therefore 

concluding that a road paralleling the old rail line would require condemnation of 

another’s land, they suggested locating Route 6 on the bed of the old rail line. 

[¶8] The Board rejected the report because it concluded that the viewers and appraisers

had failed to follow instructions, and it then appointed a new group of viewers and 

appraisers. Mullinax I, ¶ 9, 243 P.3d at 184. The new group rejected Route 6 because it

would require obtaining an easement through the land that Mullinax purchased nearly six 

months later, and because at the time it could not be determined how long it would take 

to negotiate an easement or its cost. They chose Route 1, dismissing the contents of the 

design report relating to the stormwater containment pond with the conclusory statement 

that they felt “there are alternative locations for this type of facility which would serve as 

well.” Id., ¶ 10, 243 P.3d at 185.

[¶9] In light of Mullinax’s intervening purchase of the land needed to construct the 

final leg of Route 6, the Board rejected the recommendation of the second group of 

viewers and appraisers. It concluded that although they had properly calculated the loss 

in value of Mullinax’s property attributable solely to the amount of land set aside for 

Route 1, Mullinax was also entitled to compensation for the loss of the additional land it 

would have to dedicate to stormwater containment if it could not place its sediment 

containment pond at the northern end of Route 1. It also noted that Mullinax should be 

compensated for the difference in construction costs between its planned method of 

remedying its stormwater problem and suggested alternatives that would permit the use 

of Route 1. Id., ¶ 12, 243 P.3d at 186-88.

[¶10] Although the Board relied on admittedly imprecise evidence as to the costs of 

constructing the drainage control alternatives and of building a road on Route 6, it 

determined that the costs associated with each route were comparable. The Board also

found that the value of resolving Mullinax’s stormwater problems as it planned to do 

offset any compensation which might be due for the Zowadas’ use of Route 6. 

Consequently, the Board declared that route the most reasonable and convenient to both 

parties, awarded no damages to Mullinax for Zowadas’ use of it, and required Zowadas to 

pay for the engineering and construction of the roadway between Industrial Road and the 

Zowada property. Id.

[¶11] Both parties filed petitions for review by the district court. The Zowadas claimed 

that the Board’s selection of Route 6 was not supported by substantial evidence, and 

Mullinax claimed that the Board applied an incorrect standard in determining the 
4

damages and compensation due to it. The court agreed with the Zowadas because it 

concluded that the Board had not resolved whether the BNSF Railroad would permit 

users of the road to cross its right-of-way as required for Route 6, had not addressed the 

concerns of the first group of viewers and appraisers regarding the topographic 

challenges presented by that route, had ignored the comment in the second viewers’ and 

appraisers’ report that Mullinax’s sediment retention pond could be located in some area 

other than Route 1, and had not explained why it thought Route 6 was more reasonable 

and convenient than Route 1. The district court also agreed with Mullinax that the 

Board’s damage award was erroneous. Id., ¶¶ 13-15, 243 P.3d at 188-89.

[¶12] The district court consequently reversed and remanded the case to the Board, and 

ordered it to reassemble the viewers and appraisers and to assess the damages for all 

possible road locations. Those damages were to be calculated as of the date of the 

viewing of the affected real properties, using an assessment of the values of those 

properties before and after burdening them with a private road. In addition, the court 

directed the Board to determine whether BNSF consented to the selected crossing, 

explain why the Board considered the selected route reasonable and convenient, and if 

building a road along any other route would cost more than Route 1, explain why those 

costs would be justified. Id., ¶ 15, 243 P.3d at 189. Mullinax then sought further review 

in this Court.

[¶13] In many ways we agreed with the district court. We first observed that the Board 

was obligated to compare the costs and benefits of the two options to the parties’ 

competing interests with greater specificity to determine which of the two contested 

routes was more reasonable and convenient. We also noted that the record was 

inadequate to allow it to do so. The anticipated cost of building the road on Route 6 was 

a mere “guestimate,” and not a formal contractor’s estimate. Moreover, the Board failed 

to address the viability and costs of suggested alternatives to Mullinax’s stormwater 

control plan. Finally, we concluded that Mullinax was entitled to damages for the 

decrease in value of the land it had purchased from its northern neighbor, and that this 

diminution in value was to be determined before and after being burdened by Route 6. 

Id., ¶¶ 18-22, 243 P.3d at 191-92.

[¶14] This Court determined that the case should be remanded to the Board, but we 

modified the instructions given by the district court in its order of remand. We concluded 

that the Board only needed to compare the relative merits of Routes 1 and 6. If the Board 

chose Route 6, it also had to justify the greater cost of that road and obtain a before and 

after appraisal of the extent to which the burden of the road would diminish the value of 

Mullinax’s land. Id., ¶ 23, 243 P.3d at 192. However, we also concluded that BNSF 

would allow users of the road to cross the BNSF right-of-way. Id., ¶¶ 5, 10, 243 P.3d at 

183, 85. Finally, we indicated that the Board could take additional evidence on remand, 

but found that it did not necessarily need to appoint viewers and appraisers. Id., ¶ 23, 243 

P.3d at 192.
5

[¶15] After remand, the Board took additional testimony and evidence on October 9, 

2012, and it issued Findings of Fact and Conclusions of Law on September 17, 2013. We 

will summarize those findings and conclusions here, but we will analyze the supporting 

evidence in detail in our discussion of Zowadas’ claims, and then only to the extent 

necessary to address those claims.

[¶16] Among the first of the matters addressed by the Board was a significant 

development that occurred prior to the hearing on remand—Mullinax’s construction of its 

planned retention pond on the northern end of Route 1. At about the same time as the 

November 2007 contested case hearing, Mullinax received its second DEQ notice of 

violation in a year. Although the DEQ had been lenient in enforcing its stormwater and 

sediment control requirements out of consideration for the ongoing dispute between 

Mullinax and the Zowadas, its communications regarding remediation reflected an 

increasing sense of urgency. After the December 2008 release of a favorable decision by 

the Board, Mullinax assured the DEQ that it would immediately resolve the stormwater 

problem. It built the pond and accompanying drainage structures between December 31, 

2008, and January 13, 2009, at a cost of $23,799. The Board determined that Mullinax 

undertook that construction at its own risk. 

[¶17] The Board found that Mullinax placed the pond at the lowest point on its land, in 

an area that serves as a natural drainage terminus for the entire property, and which 

allows surface water to be easily directed to the pond. Sediment carried by the water 

settles in the pond, and the water is disposed of by absorption into the ground and 

evaporation. Mullinax removes the sediment which accumulates twice a year, trucking 

away approximately 120 tons—enough to fill eight fifteen-ton capacity dump trucks—

each time. Since the pond was built, DEQ had inspected it twice and found that it 

complied with relevant surface water regulations. 

[¶18] Based on the testimony at the 2012 hearing, the Board found that the 2007 viewers 

and appraisers had wrongly concluded that Mullinax could use alternate locations and 

methods for handling surface water sediment that would be roughly equivalent to the 

existing pond in terms of cost and effectiveness. It then reviewed the eight alternative

stormwater collection methods suggested by Zowadas’ witnesses.4

[¶19] The Board eliminated the second, fourth, fifth, and eighth options because they 

required Mullinax to pipe collected storm water across the Zowadas’ property, and the 

Zowadas were unwilling to grant Mullinax an easement for that purpose. The Board also 

 

4 Although these witnesses were engineers, the options they presented cannot be called “designs” based 

on surveying and measurements done on site, taking into account how Mullinax’s business operated day 

to day and the underground and surface features of the property. Rather, the options were presented as 

mere “concepts” produced after briefly visiting the site, and the costs associated with them were quite 

rough and included no adjustments for the disruption of Mullinax’s business during their construction.
6

eliminated the seventh option, bridging the existing sedimentation pond, because cost 

estimates to do so ranged from $100,000 to over $220,000. 

[¶20] Of the remaining alternatives, the first option involved relocating the 

sedimentation pond to the southern edge of Mullinax’s property where it would be 

sandwiched lengthwise between the east entrance proposed for Route 1 and Mullinax’s 

existing truck scales. That option also required a large catch basin between Route 1 and 

Mullinax’s retail store, from which water would be channeled through pipes to the 

sedimentation pond. Building that option, including removal of portions of an eight to 

ten inch thick concrete pad, would cost Mullinax approximately $27,000 to $35,000 more 

than it cost to build the existing pond.5There would also be costs resulting from placing 

the new pond over an area that contained utilities running from just south of the Mullinax 

property line to structures on the property. 

[¶21] The third option involved removing a substantially greater amount of concrete to 

build a fifty-foot-wide detention basin extending eighty feet to the north of the southern 

boundary of the Mullinax property. The basin was to be filled with rock and coarse 

gravel. Like the first option, this alternative would likely impinge on utilities running 

from the street to buildings on Mullinax property, and it could require relocating the truck 

scales to the west. The total cost of constructing this option would exceed the cost of the 

existing pond by $35,000 to $42,000. 

[¶22] The sixth option involved building a series of catch basins and drop inlets 

connected by perforated pipe which would empty into the existing pond. The pond 

would be filled with rock and coarse gravel, and the structures leading to it would 

allegedly slow the flow of stormwater, allowing it to partially infiltrate the ground and 

settle sediment from the water that reached the pond. Those structures were to be built 

south of Mullinax’s retail store and north of its scale and office facilities and its concrete 

batch plant. The cost of this option was estimated at $30,000 to $45,000 more than the 

cost of the existing pond. 

[¶23] The Board then evaluated the loss that Mullinax would suffer by virtue of 

selecting Route 1 or Route 6. It determined that Mullinax’s partial loss of the land 

underlying Route 1 should be valued at $4,500. To that it added the damages that would 

be suffered as a result of forcing Mullinax to use land outside Route 1 to manage 

stormwater, and the limitations that placed on use of the land. The Board calculated 

those damages by deducting what it cost Mullinax to build its sediment collection pond 

from what it would cost to construct the three options discussed above. Taking the least 

expensive option, it found that the additional cost to Mullinax would be $30,000 and that 

the total damages attributable to Route 1 would be $35,000. 

 

5 The Board accounted for the risk taken by Mullinax in building that pond while litigation was still 

ongoing by deducting the cost of that facility from the total cost of pursuing each alternative option.
7

[¶24] In evaluating the damages that would result from selecting Route 6, the Board

observed that shortly after its November 2007 hearing, Mullinax purchased the land that 

would contain Route 6 in an arm’s-length transaction for $20,000 per acre. It then 

calculated how much of that property would be required to build that route, and it 

determined that Mullinax would suffer $6,500 in damages from Zowadas’ use of Route 6. 

[¶25] In light of the greater damage to Mullinax’s property if Route 1 was selected, as 

well as Mullinax’s assertion that it would build the road necessary to use Route 6 at its

own cost and for no more than $50,000, the Board selected Route 6 as the more

reasonable and convenient choice. The Zowadas timely sought review of that decision, 

and we accepted direct certification from the district court under Wyoming Rule of 

Appellate Procedure 12.09(b).

DISCUSSION

Evidentiary Issues

[¶26] Decisions concerning admission or rejection of evidence are reviewed for an 

abuse of discretion, and we will not interfere with the hearing officer or agency’s 

decision unless it is so unreasonable as to shock the conscience and appears to be so 

unfair and inequitable that a reasonable person could not tolerate it. Johnson v. State ex 

rel. Wyoming Workers’ Safety and Comp. Div., 2014 WY 33, ¶ 14, 321 P.3d 318, 322 

(Wyo. 2014). Administrative agency hearing officers are not bound by the technical 

rules of evidence that govern judicial proceedings. Watkins v. State ex rel. Wyoming 

Medical Comm’n, 2011 WY 49, ¶ 21, 250 P.3d 1082, 1089 (Wyo. 2011). Instead, they 

are to be guided by the standards articulated in Wyo. Stat. Ann. § 16-3-108(a) 

(LexisNexis 2013). Johnson, ¶ 16, 321 P.3d at 322. That statute requires the exclusion 

of evidence only if it is irrelevant, immaterial, or unduly repetitious. Wyo. Stat. Ann. § 

16-3-108(a).

[¶27] Although the Wyoming Rules of Evidence do not apply to administrative 

proceedings, the definition of relevance contained in them is instructive. Evidence is 

relevant if it has “any tendency to make the existence of any fact that is of consequence 

to the determination of the action more probable or less probable than it would be without 

the evidence.” W.R.E. 401.

[¶28] The Zowadas assert that the hearing officer abused his discretion in admitting 

evidence proving that the sediment retention pond at the northern end of Route 1 had 

been built after the November 2007 hearing. They also challenge the hearing officer’s 

admission of Nathan Mullinax’s sworn testimony that his company could and would 

build the road necessary for the use of Route 6 for $50,000.
8

[¶29] They first contend that such evidence was inadmissible because, in the first appeal 

relating to this case, they understood this Court to have remanded with instructions that

the Board was not to consider events after the second set of viewers and appraisers 

viewed the Mullinax property. That reading of our earlier opinion is incorrect. As the 

Zowadas suggest, this Court did agree with the district court that the Board needed to 

assess the damages relating to the selection of Route 6 by considering evidence that 

compared the market value of the parcel purchased by Mullinax both with and without

the burden of the proposed Route 6. We did not alter the district court’s direction that the 

appraisal of those market values relate to the worth of the property at roughly the time it 

was viewed. However, the Zowadas treat that “view” as the one which occurred in late 

2007 and, in doing so, ignore the district court’s direction to conduct an appraisal on 

remand comparing the before and after damages. Mullinax I, ¶¶ 15, 20, 243 P.3d at 189, 

191. Neither this Court nor the district court restricted the Board to facts existing in 

2007, and to have done so would have been unrealistic at best. 

[¶30] The Zowadas also contend that the hearing officer should not have admitted the 

challenged evidence because it was irrelevant and, with respect to the evidence relating to 

the cost of road building on Route 6, because it was not credible. We can dispose of the 

second of those contentions summarily, because challenges to the credibility of testimony 

go to its weight, not to its admissibility. Easum v. Miller, 2004 WY 73, ¶ 33, 92 P.3d 

794, 803 (Wyo. 2004); Robinson v. State, 11 P.3d 361, 374 (Wyo. 2000). As to the first 

contention, the record shows that evidence as to the construction and operation of the 

sediment retention pond and the costs of building a road on Route 6 was definitely 

relevant to the issues before the Board.

[¶31] The evidence relating to the pond demonstrated that: (1) it was built to an 

engineer’s design specifications; (2) it was built for $23,799; (3) it worked as designed; 

(4) it captured approximately 240 tons of sediment each year; and (5) Mullinax could 

remove the sediment for disposal with little interruption of its business. The Zowadas did 

not produce evidence of comparable quality on those points with respect to its first, third, 

and sixth proposed options for sediment control.

[¶32] The two engineers who testified for the Zowadas had not designed any alternatives 

to Mullinax’s pond. They had not surveyed or taken any measurements from which they 

could calculate what was required for a workable system. They did not know how much 

sediment ordinarily drained off the property, or the volume of traffic that ordinarily 

travelled through the scales and the area between the scales and Mullinax’s retail store, 

where Route 1 would have been located. 

 

[¶33] Consequently, they were uncertain what their “concepts” would cost and whether 

any hidden costs, such as dealing with utilities and sewer lines, might add to the price. It 

was equally unclear whether those alternatives would actually work; that is, whether they 

would accomplish the task as the existing pond does, or how costly they would be to 
9

maintain, both from the standpoints of time and equipment expenses and disruption of 

Mullinax’s business.

[¶34] The Board had to determine how the parties would be left if it chose one of 

Zowadas’ proposed options. The evidence challenged by the Zowadas was relevant 

because it showed that the already-built pond was more efficient and cost-effective than 

the three proposed alternatives.

[¶35] Nathan Mullinax’s testimony regarding the cost of constructing the road on Route 

6 was also relevant for similar reasons. It made it more probable that choosing that route 

and allowing Mullinax continued use of its pond would more effectively, reasonably, and 

fairly balance the parties’ competing interests in cost and convenience.

[¶36] That testimony showed that Mullinax had already paid an engineer to survey the 

route and design the road to be built on Route 6 at its own expense. Those expenses were 

to be levied upon the Zowadas in the 2008 Board decision. The design work showed that 

building a road along that route was feasible. To assure compliance with the clean air 

standards applicable to its operations, Mullinax preferred to assume the duty and cost of 

maintaining the road once it was built, rather than attempting to require Zowadas to pay 

part of those expenses as they had been required to do by the 2008 ruling. 

[¶37] Most importantly, the evidence revealed that Mullinax could and would build the 

road for its own cost, thereby providing a fixed price for the road which approximated the 

more speculative and less certain estimates of the cost of building an alternative drainage 

control system on Mullinax’s property. The Zowadas do not dispute that Mullinax has 

the experience and equipment necessary to build the road in question.6 

[¶38] To summarize, admission of the evidence challenged by the Zowadas did not 

violate any portion of this Court’s prior mandate in this case, and that evidence was 

relevant to issues that the Board had to resolve in order to rationally and justly decide the 

case. Consequently, we affirm the hearing officer’s rulings in these regards.

Substantial Evidence

[¶39] The Board was statutorily obligated to determine which route would be the most 

reasonable and convenient to both Mullinax and the Zowadas, giving full consideration to 

which would least damage Mullinax’s use of its lands. Wyo. Stat. Ann. §§ 24-9-101(h) 

 

6 The Zowadas also argue that we should not consider Mullinax’s agreement to build the road for $50,000 

because it is a settlement offer under Wyoming Rule of Evidence 408. We disagree. Mullinax assumed 

responsibility to build and maintain the road, which is sensible in light of the fact that it will use the road 

for its operations. The Board based its decision on that assumption of responsibility, and if Mullinax fails 

to build the road as promised, another alternative will be chosen. This was not an effort to compromise a 

claim. 
10

and 103(a) (LexisNexis 2005). The latter necessarily involved weighing how the 

selection of Route 1 would affect the costs of Mullinax’s efforts to comply with DEQ 

requirements. The Zowadas now argue that the Boards’ resolution of these questions was 

not supported by substantial evidence.

[¶40] We review an agency’s findings of fact by applying the substantial evidence 

standard required by Wyo. Stat. Ann. § 16-3-114(c)(ii)(E) (LexisNexis 2013). We have 

defined substantial evidence as relevant evidence that a reasonable mind might accept as 

adequate to support a conclusion, and have held that an agency’s factual findings are 

supported by substantial evidence if we can discern a rational premise for those findings 

from evidence in the record. In making that determination, we defer to the agency’s (or 

the hearing examiner’s) determination of witness credibility unless it is clearly contrary 

to the overwhelming weight of the evidence. Birch v. State ex rel. Wyoming Workers’ 

Safety and Comp. Div., 2014 WY 31, ¶ 12, 319 P.3d 901, 906 (Wyo. 2014). This Court 

must be able to conclude that the agency decision was not contrary to the overwhelming 

weight of the evidence as a whole, considering the extent to which testimony from one 

party or another may be confused, uncertain, improbable, marked by incomplete or 

inaccurate knowledge, or otherwise unreliable. Id., ¶ 14, 319 P.3d at 907.

[¶41] As we noted above, the evidence introduced by Mullinax on key matters possessed 

the virtue of certainty. They indicated they would build the road on Route 6 for a 

maximum of $50,000, and the Board obviously found that statement to be credible, for it 

incorporated it as a fact in its final order. Mullinax also established the cost of building 

its sediment retention pond, that the pond worked, and that it was capable of capturing 

approximately 240 tons of sediment each year.

[¶42] As also noted above, the evidence presented by Zowadas was not nearly so 

definite as to the cost and viability of the alternatives it proposed for controlling 

stormwater on Mullinax’s land. The Board could legitimately conclude that those 

alternatives were nothing more than vague concepts hatched after a few hours spent on 

the land without taking critical measurements, surveying to determine gradients, or 

researching the possibility that underground structures or business traffic on the site 

might adversely affect their cost and utility. In short, the expert witness who advanced 

those alternatives provided cost estimates that the Board could reasonably view as 

speculative.

[¶43] As discussed earlier, the expert estimated that the cost of the first option would 

exceed the cost of Mullinax’s pond by $27,000 to $35,000. However, he was unaware 

that the new pond required by that option was located over a utility easement and sewage 

pipes servicing buildings on Mullinax’s property, and he did not account for any 

additional costs that would be incurred in dealing with those obstructions. Nor did he 

account for any costs associated with the fact that the new pond was to be situated 

between Mullinax’s truck scales and the southeast entrance to its property. He offered no 
11

testimony how that location might adversely affect the ability to use the scales and 

entryway during or after the new pond’s construction.

[¶44] Furthermore, Mullinax’s witnesses testified that the proposed catch basin to feed 

the new pond was not located where it could best capture stormwater. One testified that 

much additional concrete work would be required to redirect water to the catch basin, and 

that Mullinax would have to build those structures in the middle of the area with the

highest vehicle traffic. 

[¶45] The Zowadas’ expert engineering witness estimated that the cost of the third 

option would exceed the cost of Mullinax’s pond by $35,000 to $42,000. That estimate 

failed to account for dealing with the sewer lines servicing Mullinax’s buildings, or for 

the costs associated with Mullinax’s simultaneous efforts to conduct its business and 

construct the large pond required by the third option in the area of its plant with the 

highest level of traffic.7 Furthermore, that pond was four times the size of the one built 

by Mullinax, yet the Zowadas’ witness testified it would cost the same amount to build, 

which undoubtedly seemed as improbable to the Board as it does to us. 

[¶46] Mullinax’s experts even called the functionality of the pond in the third option into 

question themselves. They were concerned that even though it would be much larger 

than the existing pond, it was to be filled with rock and coarse gravel. The record is not 

clear on this point, but one assumes this would be necessary to permit heavy truck traffic 

to cross the pond. Whether the pond would function effectively when filled with solid 

rock was never addressed. On the other hand, two of Mullinax’s witnesses testified that 

the rock-filled pond would quickly fill with sediment, and one of the Zowadas’ experts—

the “designer” of all the alternative options—agreed and noted that, once filled with 

sediment, the pond would no longer work. He suggested no method by which Mullinax 

could remove the sediment, and he gave no estimate of the costs of doing so or how often 

the pond would need to be cleaned out, if it could even be done.

[¶47] The Zowadas’ expert estimated that the sixth option would exceed the cost of the 

existing pond by $30,000 to $45,000. It called for the construction of a series of small 

sediment-capturing structures, each of which would drain through similar downhill 

 

7 Approximately two months after the 2012 contested case hearing, the Board convened a public meeting 

to discuss and vote on the resolution of this case. Chief among the concerns expressed by the board 

members was the traffic issue raised by a traffic-flow analysis completed for Mullinax by an engineering 

firm in 2006 and Mullinax’s report of traffic flowing across its scale and through its southeast gate during 

five months in 2006 and 2007. The latter showed that, excluding the vehicles of employees and retail 

sales customers, 52 vehicles per day passed in and out of the scales and 94 per day passed in and out of 

the gate. The great majority of those vehicles on one of each trip carried a gross weight of between 

53,000 and 85,000 pounds. In the minds of the board members, that amount and type of traffic, when 

combined with the additional traffic that would patronize the Zowadas’ business presented an excessive 

safety risk that would be cured by the selection of Route 6. 
12

structures to the existing pond, which was also to be filled with rock and gravel. As was 

the case with the first option, Mullinax’s witnesses testified that this alternative was not 

located so as to take advantage of the natural drainage on the site. And as with the third 

option, they concluded that the rock and gravel-filled pond would fill too quickly with 

sediment to remain workable. In short, the sixth option would use the existing pond and 

allow the use of Route 1, but the Board could rationally conclude that it would cost 

nearly twice again what the existing pond cost, be considerably less effective, have an 

extremely short useful life, and carry presumably much greater clean-out costs that could 

entail reexcavation of the pond on Route 1—if the sediment it contained could be 

removed at all.

[¶48] After reviewing the record and considering the uncertainties inherent in the choice

of Route 1, we conclude that the Board’s selection of Route 6 was not contrary to the 

overwhelming weight of the evidence. When the Zowadas’ evidence or lack thereof is 

compared to that presented by Mullinax, we conclude that the Board reasonably 

determined that Route 6 was the most reasonable, convenient, and cost-effective option 

for both parties.

CONCLUSION

[¶49] The evidence challenged by the Zowadas was properly admitted at the contested 

case hearing in 2012, and the Board’s decision to establish the private road along Route 6 

was supported by substantial evidence. We therefore affirm the Board’s Findings of Fact 

and Conclusions of Law.