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Asper v. Nelson

Supreme Court of South Dakota

May 24, 2017

TIMOTHY ASPER and GALAZIN FAMILY, LLC, Petitioners and Appellants,
v.
BRADLEY NELSON, ROBERT SICHMELLER and RAY LARDY, as supervisors for Raritan Township and RARITAN TOWNSHIP, DAY COUNTY, SOUTH DAKOTA, Respondents and Appellees.

          CONSIDERED ON BRIEFS APRIL 24, 2017

         APPEAL FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT DAY COUNTY, SOUTH DAKOTA THE HONORABLE JON S. FLEMMER Judge

          DAVID A. GEYER of Delaney, Nielsen & Sannes, PC Webster, South Dakota Attorneys for petitioners and appellants.

          JAY M. LEIBEL Madison, South Dakota Attorney for respondents and appellees.

          WILBUR, Justice.

         [¶1.] Two township residents petitioned the circuit court to issue a writ of mandamus compelling the township to repair and maintain two secondary roads. After two hearings, the circuit court denied the request to issue a writ because the court concluded that the township proved that it was unable to perform its mandatory duty to repair and maintain the two secondary roads. The residents appeal. We affirm.

         Background

         [¶2.] On November 19, 2015, Timothy Asper and Galazin Family, LLC petitioned the circuit court to issue a writ of mandamus ordering Raritan Township in Day County, South Dakota, to either repair and maintain 132nd Street and 431st Avenue and make the roads passable or show cause why it should not be done. SDCL 31-13-1 imposes a duty on the Raritan Township Board to repair and maintain 132nd Street and 431st Avenue, which are secondary roads within the Township. The roads had provided Asper and Galazin Family access to their real property located within the Township. In their affidavits supporting their petition for a writ of mandamus, Asper and Galazin Family alleged that they had repeatedly requested that the Township repair and maintain the roads, but the Township had refused to do so for the last four years.

         [¶3.] On December 22, 2015, the circuit court issued an alternative writ of mandamus. The court ordered the Township and the Township board members to repair and maintain 132nd Street and 431st Avenue or show cause why the writ should not be made permanent. The court held a hearing in February 2016. During the hearing, the court heard evidence from Asper and the Township. Asper testified that he owns approximately 97 acres on which his home resides. He purchased the property in 2008 and had access to the property via 132nd Street and 431st Avenue. Galazin Family owns approximately 280 acres of farmland in the same vicinity and had access to the property via 132nd Street and 431st Avenue. Both 132nd Street and 431st Avenue are improved section-line roads and portions of both roads border a lake. In the spring 2011, the water level of the bordering lake flooded and made impassable portions of both 132nd Street and 431st Avenue. Asper testified that to access his home, he must now cross private pasture land, State land, private farmland, and private crop land. Galazin Family must also cross private land to get to its property.

         [¶4.] The Township, via testimony from the township clerk, identified that its yearly budget for road maintenance was approximately $25, 000, and in 2015, the Township had approximately $9, 000 remaining. The clerk also testified that no maintenance had been done on 132nd Street or 431st Avenue since 2010. Township Board Supervisor Brad Nelson had been a township supervisor for the past nine years. He testified that the Township received $23, 470 in 2015, which included $12, 897 in real estate taxes. Nelson explained that although the Township had approximately $56, 000 in a money market account, that money had been given to the Township by FEMA and was allocated to other roads not including 132nd Street or 431st Avenue. Nelson asserted that the Township, with assistance of various governmental entities, had spent approximately $256, 000 from 1995 to 2010 to repair and keep the roads passable in light of the ever-increasing water levels of the bordering lake. Nelson claimed that after those initial repairs the Township never discussed doing a special levy to fund subsequent repair and maintenance of the roads.

         [¶5.] At the conclusion of the hearing, the circuit court held that the Township had a mandatory duty to repair 132nd Street and 431st Avenue. The court, however, found that "[h]ere, it isn't a matter of the township neglecting the road, it's a matter of whether or not the township has the ability to correct the problem." The court concluded that it could not decide that question until the Township obtained a recent estimate for the cost of repair. The court issued "mandamus for the sole purpose" of "directing the [T]ownship to obtain a written estimate to raise the road so that that amount can then be reviewed by the [T]ownship and a determination made at [its] discretion whether [it is] able to generate the funds necessary to complete that - - that estimate." It directed that the matter would remain open and that Asper and Galazin Family could request further review by the court. The court issued findings of fact and conclusions of law.

         [¶6.] In a subsequent hearing on August 26, 2016, the parties offered competing estimates to the circuit court. Asper presented an estimate from Hofland Engineering, which was the same engineering company that had raised the road in prior years. According to Hofland Engineering's estimate, the cost to repair the roads would be $473, 000 with possible additional expenses in the future. Asper testified that he and Galazin Family would contribute $25, 000 to assist the Township in building up the roads.

         [¶7.] The Township, through testimony by current Township Board Chairman Robert Sichmeller, testified that the Township received estimates from Webster Scale, Inc. for $1, 380, 500 and Foothill Contracting for $1, 178, 560. Sichmeller also testified that the Board held a special meeting in March 2016 to decide whether the Township could build a road for Asper and Galazin Family. The Board concluded, based on the estimates it had received, that the Township could not repair the roads. On cross-examination, Sichmeller agreed that the Board had not conducted a special tax assessment to fund the repair of the roads and that the Board had never taken a vote to get a bond to improve the roads. He, however, claimed that the Board's attempt to obtain additional funding from the Township's residents would not be "favorable."

         [¶8.] The court issued an oral ruling at the conclusion of the hearing. The court referred to the parties' estimates and acknowledged that Asper and Galazin Family agreed to pay $25, 000. The court also recognized that it could order the Township to go through the steps of attempting to obtain the necessary funding. But, according to the court, "that would seem to be a further expenditure of resources on the part of all parties that isn't going to be able to accomplish" Asper and Galazin Family's goal. The court held that the Township established that it was not possible for the Township to fund the repair and maintenance of 132nd Street and 431st Avenue as identified in the estimates-including the estimate from Hofland Engineering for $473, 000. The ...


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