BRANT LAKE SANITARY DISTRICT, a political subdivision of the State of South Dakota, Plaintiff and Appellant,
STEVEN L. THORNBERRY and GLORIA THORNBERRY, Defendants and Appellees.
CONSIDERED ON BRIEFS ON AUGUST 29, 2016
FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT LAKE
COUNTY, SOUTH DAKOTA THE HONORABLE PATRICK T. PARDY Judge
B. LAMMERS of Lammers Kleibacker, LLP Madison, South Dakota
Attorneys for plaintiff and appellant.
LEIBEL of Leibel Law Firm, Prof., LLC Madison, South Dakota
Attorneys for defendants and appellees.
Brant Lake Sanitary District sought to enjoin Steven and
Gloria Thornberry from using or occupying their real property
until they connected their dwelling to Brant Lake's sewer
line. The circuit court determined that the ordinance
requiring connection to the public sewer did not apply to the
Thornberrys, and it granted summary judgment in favor of the
Thornberrys. Brant Lake appeals. We affirm.
Brant Lake enacted Ordinance No. 4 in December 2007. The
ordinance "regulat[es] the use of public and private
sewers and drains, private wastewater disposal, the
installation and connection of building sewers, and the
discharge of waters and wastes into the public sewer
system[.]" The parties dispute the meaning of Section 2
of the ordinance. It provides in relevant part:
D. The owner of all houses, buildings or properties used for
human occupancy, employment, recreation, or other purposes,
situated within the District is hereby required at the
owner's expense to install suitable toilet and sanitation
facilities therein, and to connect such facilities directly
with the proper public sewer in accordance with the
provisions of this ordinance within sixty (60) days after the
date of official notice to do so.
E. The provisions of paragraph D, above, shall not apply to
existing houses, buildings or properties not currently
required to be connected to the public sewer system of the
Since 1998, the Thornberrys have maintained a dwelling on
real property within Brant Lake. They use the dwelling on a
seasonal basis and maintain a portable chemical toilet on the
property. Brant Lake notified the Thornberrys on August 18,
2014, that, pursuant to Ordinance No. 4, Section 2, they must
install suitable toilet and sanitation facilities in their
dwelling and connect those facilities to the main public
sewer line within sixty days of August 20, 2014. Brant Lake
sent a second notice on November 4, 2014. Steven Thornberry
informed Brant Lake that he hoped to begin construction in
the spring of 2015. In April 2015, Brant Lake agreed to give
the Thornberrys until June 1, 2015, to connect to the sewer.
By October 2015, the Thornberrys had not taken any steps to
connect to the main sewer system, and Brant Lake instituted
Both Brant Lake and the Thornberrys moved for summary
judgment. On December 17, 2015, the circuit court held a
hearing on the motions and determined that Section 2(E) of
Ordinance No. 4 exempted the Thornberrys from the
requirements of Section 2(D). On appeal, Brant Lake contends
that the court erred in its determination that 2(E) is a
The parties agree that there are no genuine issues of
material fact; they only disagree on the court's
determination that Brant Lake's Ordinance No. 4 contains
a grandfathering clause applicable to the Thornberrys.
Construction of an ordinance is a question of law we review
de novo. See In re Conditional Use Permit Granted to Van
Zanten, 1999 S.D. 79, ¶ 8, 598 N.W.2d 861, 863.
Brant Lake may require the Thornberrys to connect to
sewer facilities if it enacts ordinances or resolutions that
require as much. See SDCL 34A-5-35 ("The board
of trustees may require by ordinance or resolution that all
dwellings or structures within the district, or within a
defined area, shall be connected ...