#28006-a-LSW
2017 S.D. 29

                           IN THE SUPREME COURT
                                   OF THE
                          STATE OF SOUTH DAKOTA


                                      ****

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.


                                      ****
                   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.


                                      ****

                                             CONSIDERED ON BRIEFS
                                             APRIL 24, 2017
                                             OPINION FILED 05/24/17
#28006

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.


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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


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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.


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[¶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 court issued findings of fact and conclusions

of law and an order denying the alternate writ of mandamus, amended alternate

writ of mandamus, and Asper and Galazin Family’s motion for further review.


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[¶9.]        Asper and Galazin appeal, asserting that the circuit court abused its

discretion when it denied the issuance of a writ of mandamus.

                                       Analysis

[¶10.]       Asper and Galazin Family argue that the Township failed to prove that

mandamus would be unavailing because the Township has yet to attempt

everything possible to raise the funds necessary to perform its mandatory duty to

repair and maintain 132nd Street and 431st Avenue. Asper and Galazin Family

emphasize that they have a clear legal right to have the roads repaired and

maintained and that they have no legal remedy other than mandamus. So, in their

view, until the Township exhausts all potential funding resources, such as the

issuance of a bond under SDCL chapter 8-11, the circuit court did not have

discretion to deny the writ of mandamus.

[¶11.]       “Circuit courts possess discretion in deciding whether to grant a writ of

mandamus; thus, the appropriate standard of review on appeal is abuse of

discretion.” Willoughby v. Grim, 1998 S.D. 68, ¶ 6, 581 N.W.2d 165, 167. “The

granting of a writ of mandamus is not a matter of absolute right, but is vested in

the sound discretion of the court; and, where there is reason to doubt the necessity

or propriety of issuing it, it should be refused.” Anderson v. City of Sioux Falls,

384 N.W.2d 666, 668 (S.D. 1986). It is also “the generally accepted rule that there

may be considerations of justice which will justify a refusal of the writ, although

there may be no other appropriate and adequate remedy.” City of Sioux Falls v.

Sioux Falls Traction Sys., 53 S.D. 471, 221 N.W. 84, 85 (1928). For example, “[i]n

some instances, difficulties in enforcement of mandamus may call for denial of


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relief.” Willoughby, 1998 S.D. 68, ¶ 12, 581 N.W.2d at 169. Likewise, “[m]andamus

will not be granted when it would be unavailing.” Id. (quoting State v. Hahn,

69 S.D. 275, 278, 9 N.W.2d 502, 503 (1943)).

[¶12.]       The Township has an affirmative duty to repair and maintain 132nd

Street and 431st Avenue, and Asper and Galazin Family have a clear legal right to

the performance of the Township’s duty. The circuit court recognized as much. But

the court also held that the Township proved that it was unable to perform its legal

duty because it would be unable to procure the funds necessary to repair and

maintain the roads. From our review, the court did not abuse its discretion.

[¶13.]       This is not a case of a lack of immediate funds or a mere financial

hardship. The Township offered testimony that it receives approximately $13,000 a

year in real estate taxes, and it operates on an annual budget for road maintenance

at approximately $25,000. The lowest estimate to repair the roads was $473,000,

and that estimate indicated that additional repairs in the future may be necessary.

[¶14.]       Yes, the Township is statutorily authorized to sell bonds upon approval

“by a two-thirds vote of the registered voters present and voting at any annual

township meeting or special township meeting called for that purpose.” SDCL

8-11-3. But the Township would have to raise approximately 19 times its annual

budget to cover the lowest estimate to repair the roads, a number which does not

include the costs associated with calling for an election to raise money by selling

bonds. And in order to repay the bonds, the Township must levy a tax to be used

specifically for the repayment of the bonds. SDCL 8-11-7. We also note that neither

the parties nor the court addressed any constitutional or statutory limits on the


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Township’s ability to incur debt or the viability of issuing and selling bonds. See

S.D. Const. art. XIII, § 4; SDCL ch. 31-13. Similarly, the evidence supports the

court’s view that a special assessment would obligate the subject property for

potentially more than the property’s value.

[¶15.]       Nonetheless, Asper and Galazin Family argue that the Township must

“prove that it was impossible to get the funding to repair the roads.” (Emphasis

added.) They also claim that any difficulty in obtaining funds is immaterial because

“[e]quitable defenses have no bearing in this matter.” On the contrary, “the right to

a writ of mandamus may turn on equitable considerations[.]” United States v.

Helvering, 301 U.S. 540, 543, 57 S. Ct. 855, 857, 81 L. Ed. 1272 (1937). We also

note that the court could not order the Township to use or exhaust particular

methods, including special assessment or bond, to attempt to obtain the funds. The

Township has discretion in how it carries out its duty to repair and maintain its

roads. See Willoughby, 1998 S.D. 68, ¶ 11, 581 N.W.2d at 169 (“Orders compelling

the exercise of this discretion are ill-suited to mandamus relief.”). Because the

Township proved that it “has not willfully placed itself in a position where it cannot

perform its legal duty, and it appears that it is unable to do so,” the circuit court did

not abuse its discretion when it denied the writ. See Sioux Falls Traction Sys.,

53 S.D. 471, 221 N.W. at 86.

[¶16.]       Affirmed.

[¶17.]       GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and KERN,

Justices, concur.




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