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Brant Lake Sanitary District v. Thornberry

Supreme Court of South Dakota

September 28, 2016

BRANT LAKE SANITARY DISTRICT, a political subdivision of the State of South Dakota, Plaintiff and Appellant,
v.
STEVEN L. THORNBERRY and GLORIA THORNBERRY, Defendants and Appellees.

          CONSIDERED ON BRIEFS ON AUGUST 29, 2016

         APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT LAKE COUNTY, SOUTH DAKOTA THE HONORABLE PATRICK T. PARDY Judge

          JEROME B. LAMMERS of Lammers Kleibacker, LLP Madison, South Dakota Attorneys for plaintiff and appellant.

          JAY M. LEIBEL of Leibel Law Firm, Prof., LLC Madison, South Dakota Attorneys for defendants and appellees.

          SEVERSON, Justice

         [¶1.] 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.

         Background

         [¶2.] 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 District.

         [¶3.] 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 this action.

         [¶4.] 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 grandfathering clause.

         Analysis

         [¶5.] 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 ...


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