#27743-a-GAS
2016 S.D. 66


                           IN THE SUPREME COURT
                                   OF THE
                          STATE OF SOUTH DAKOTA

                                  ****

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.


                                  ****

                   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.

                                  ****


                                           CONSIDERED ON BRIEFS
                                           ON AUGUST 29, 2016
                                           OPINION FILED 09/28/16
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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


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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 with the sewers of the



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district.”). The question before this Court is whether Brant Lake’s Ordinance No. 4

requires the Thornberrys to connect to Brant Lake’s sewer system. 1

[¶6.]         Section 2(D) provides in pertinent part: “[t]he owner of all houses,

buildings or properties . . . is hereby required . . . to install suitable toilet and

sanitation facilities . . . and to connect such facilities directly with the proper public

sewer . . . within sixty (60) days after the date of official notice to do so.” However,

Section 2(E) provides that “[t]he 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.” According to Brant Lake, “not currently

required” refers to those property owners who have not yet received notice. Brant

Lake asserts that Section 2(E) “says and means that if [Thornberrys] have not been

notified, and only then, no connection is required.”

[¶7.]         Section 2(E) is a grandfather provision. The language “not currently

required” refers to the time at which the ordinance was enacted in 2007. To read it

otherwise would render Section 2(E) meaningless. See Appeal of Real Estate Tax

Exemption for Black Hills Legal Servs., Inc., 1997 S.D. 64, ¶ 12, 563 N.W.2d 429,

432 (quoting Rapid City Educ. Ass’n v. Rapid City Sch. Dist., 522 N.W.2d 494, 498

(S.D. 1994)) (“’There is a presumption against a construction [that] would render a

statute ineffective or meaningless.’”). Section 2(D) already makes it clear that

notice triggers the requirement to connect to the public sewer system within 60

days. There is no need for a section that states, as Brant Lake asserts it does, that


1.      “[O]rdinances, as legislative enactments, are interpreted consistent with the
        rules of statutory construction.” In re Approval of Request for Amendment to
        Frawley Planned Unit Dev., 2002 S.D. 2, ¶ 6, 638 N.W.2d 552, 554.

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#27743

owners who have not received notice need not connect to the public sewer system. 2

Although Brant Lake contends that reading Section 2(E) as a grandfather clause

would render the ordinances inoperative, they still apply to new buildings that were

not in existence at the time the ordinances were adopted. Furthermore, there is no

question that the ordinances may be changed to require the Thornberrys to connect

to the public sewer system. However, as written, the ordinances do not require

them to do so.

[¶8.]         In the event that this Court decides that Section 2(E) is a grandfather

provision that exempts the Thornberrys, Brant Lake has asked that we make the

determination that the Thornberrys are required to maintain a private wastewater

disposal system under Section 3 of Ordinance No. 4. Brant Lake asks that we “not

permit a continuing violation by Thornberrys[.]” However, there has been no

determination that the Thornberrys are in violation of the ordinances. The issue

whether Thornberrys are required to maintain a private wastewater system was

not considered by the circuit court, and therefore we decline to address the issue. 3



2.      Brant Lake seems to assert that SDCL 9-48-53 independently requires
        connection to a public water sewer system. However, SDCL 9-48-53 provides,
        in part, “[e]ach building in which plumbing fixtures are installed shall
        connect to a public water sewer system if available.” It is undisputed that
        there is not installed plumbing within the Thornberry’s structure. The
        statute is inapplicable.

3.      Similarly, although the parties devote briefing to the issue whether the
        Thornberry’s “porta potty” complies with the ordinances, the court explained
        at the summary judgment hearing that the issue of the “porta potty” was not
        before it and Brant Lake agreed. The following exchange occurred:

              Court: I agree with you that Section C makes it clear that it
              would be a violation of the Ordinance to have a porta potty, but
                                                                  (continued . . .)
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                                      Conclusion

[¶9.]        Brant Lake’s ordinances, as written, do not require the Thornberrys to

connect to its public sewer system. We affirm.

[¶10.]       GILBERTSON, Chief Justice, and ZINTER and KERN, Justices,

concur.

[¶11.]       WILBUR, Justice, dissents.



WILBUR, Justice (dissenting).

[¶12.]       I respectfully dissent because I disagree that Section 2(E) is a

grandfather provision. The majority opinion interprets Section 2(E) only in

reference to 2(D). When Section 2(E) is read in conjunction with Ordinance 4 as a

whole, Section 2(E) does not exempt Thornberrys’ building. See City of Marion v.

Schoenwald, 2001 S.D. 95, ¶ 12, 631 N.W.2d 213, 218 (we read enactments as a

whole) (citing Faircloth v. Raven Indus., Inc., 2000 S.D. 158, ¶ 6, 620 N.W.2d 198,

201).

[¶13.]       Ordinance 4 regulates:

             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 . . . in the Brant Lake Sanitary District[.]
_________________________________________________
(. . . continued)
               that issue isn’t before me. That wasn’t part of your pleadings to
               remove a porta potty. This - - this case was to force - -
             Counsel for Brant Lake: Well, they raised the question, Your
             Honor, and then I refuted it in my - - in my reply to their
             Answer and Counterclaim, and so as far as the Motion for
             Summary Judgment is concerned, yeah, that - - that’s irrelevant
             really.

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Section 1 defines certain terms. Section 2 is entitled, “Use of Public Sewers

Required.” The first three provisions describe what conduct is illegal in regard to

wastewater and sewage deposits and discharge on public and private property. The

fourth provision, Section 2(D), provides that:

             [t]he 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.

(Emphasis added.) Section 2(E) exempts “existing houses, buildings or properties

not currently required to be connected to the public sewer system of the District.”

[¶14.]       The question in this case is whether Thornberrys’ building is “not

currently required to be connected to the public sewer system of the District.”

(Emphasis added.) The majority opinion does not identify why Thornberrys’

building is exempt under Section 2(E). Yes, Thornberrys’ building is not currently

(actually) connected to the public sewer system. But that does not perforce mean

Thornberrys’ building is not currently required to connect.

[¶15.]       A review of Ordinance 4 as a whole indicates that buildings not

required to be connected are those without a connection available. Under Section

3(A), “[w]here a public sanitary or combined sewer is not available under the

provisions of Section 2-D, the building” must connect “to a private wastewater

disposal system complying with the provisions of this article.” This case is not

about whether Thornberrys’ “porta-potty” is a private wastewater disposal system

because, here, it is undisputed that a public sewer connection is available.

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However, even if Thornberrys had a qualifying private wastewater disposal system,

Section 3(E) mandates that “[a]t such time as a public sewer becomes available to a

property served by a private wastewater disposal system, as provided in Section 2, a

direct connection shall be made to the public sewer within 60 days in compliance

with this ordinance[.]”

[¶16.]       The plain language of Ordinance 4 supports that Section 2(E) excludes

the owners of a house, building, etc. from the mandates of Section 2(D) when a

public sewer connection is not available. See Ordinance No. 4, Section 3(A). Here, a

connection to a public sewer system is available to Thornberrys’ building and Brant

Lake Sanitary District gave Thornberrys official notice that they must connect their

facilities to the available public sewer line within sixty days. Because Thornberrys

failed to comply with Ordinance 4, specifically Section 2(D), I would hold that the

circuit court erred when it granted Thornberrys summary judgment.




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