Krsnak v. Brant Lake Sanitary Dist.

KERN, Justice

#28352-a-JMK APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT LAKE COUNTY, SOUTH DAKOTA THE HONORABLE VINCENT A. FOLEY Retired Judge R. SHAWN TORNOW
Sioux Falls, South Dakota Attorney for plaintiffs
and appellants. JOEL R. RISCHE
VINCE M. ROCHE of
Davenport, Evans, Hurwitz

& Smith, LLP
Sioux Falls, South Dakota Attorneys for defendant
and appellee. KERN, Justice [¶1.] The Brant Lake Sanitary District (the District) built an additional sewage lagoon to process wastewater from the Brant Lake area. The Krsnaks, who live a short distance from the new pond, brought an action against the District alleging a taking or damaging of their property and nuisance. The circuit court granted the District's motion for summary judgment on all claims. The Krsnaks appeal. We affirm.

[¶2.] The District designed and constructed a treatment pond to service the increase in wastewater flow in the Brant Lake area. This new pond, referred to as the Brant Lake Sanitary District pond (BLSD pond), connected into two previously existing treatment ponds operated by the Chester Sanitary District. [¶3.] Jimmy and Linda Krsnak own 8.27 acres of property approximately 675 feet north of the new water treatment pond and 1,100 feet from the existing ponds. Linda has operated a vegetable farm called "Linda's Gardens" from the property since 2005. The Krsnaks also have a sixty-foot well on their land, which they use to water crops for the business. They opposed construction of the BLSD pond and brought several lawsuits hoping to stop the project. [¶4.] In 2011, the Krsnaks appealed to the circuit court the Lake County Board of Adjustment's decision to grant the District a conditional use permit to build the pond. In a memorandum decision dated June 28, 2011, the circuit court dismissed their action for failing to meet the statutory requirements for contesting such a decision. See SDCL 11-2-61 to -65. Next, the Krsnaks filed a petition for a writ of mandamus to compel the South Dakota Department of Environmental and motion to allow for further discovery, the Krsnaks, in the years that followed, had failed to produce evidence of "water seepage impacts" to their property. Further, the court disregarded as speculative the Krsnaks' argument that their proximity to the pond made their business ineligible for GAP certification, presumably because the Krsnaks had never attempted to certify. [¶13.] Finally, the circuit court, citing Krier v. Dell Rapids Township, concluded that even if the Krsnaks suffer a heightened injury due to the smell and their proximity to the pond, their injury was neither unique nor constituted a nuisance. See 2006 S.D. 10, ¶ 28, 709 N.W.2d 841, 847-48 (holding a plaintiff in an inverse condemnation action must establish an injury to property "different in kind and not merely in degree from that experienced by the general public."). The Krsnaks appeal, raising two issues that we consolidate as follows:

Whether the circuit court erred by granting the District's motion for summary judgment on the Krsnaks' inverse condemnation and nuisance claims.

[¶14.] Our summary judgment standard is well-established. Summary judgment is authorized "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." SDCL 15-6-56(c). All reasonable inferences derived from the facts are viewed in the light most favorable to the nonmoving party. Northstream Invs. v. 1804 Country Store Co., 2005 S.D. 61, ¶ 11, 697 N.W.2d 762, 765.

The inverse condemnation claim [¶15.] "[I]n any takings case, the determination whether a property interest was taken or damaged for public use is a question of law for the court." Dep't of Transp. v. Miller, 2016 S.D. 88, ¶ 43, 889 N.W.2d 141, 154. If the court decides a taking or damaging of property occurred, the parties may request that a jury resolve their claim for just compensation and affix damages. See Rupert v. City of Rapid City, 2013 S.D. 13, ¶ 6, 827 N.W.2d 55, 60. On appeal, an alleged violation of constitutional rights—such as whether a sufficient inverse condemnation claim exists—"is an issue of law to be reviewed under the de novo standard." Id. ¶ 8, 827 N.W.2d at 66. [¶16.] The Krsnaks begin by challenging the circuit court's summary judgment order dismissing their inverse condemnation claim. In the realm of eminent domain, the Constitution of the United States commands that private property shall not "be taken for public use, without just compensation." U.S. Const. amend. V. Takings jurisprudence at the federal level involves, at a minimum, two distinct categories of deprivations: (1) physical occupations of land; or (2) regulatory takings. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015, 112 S. Ct. 2886, 2893, 120 L. Ed. 2d 798 (1992). [¶17.] The South Dakota Constitution enlarges these protections, instructing "[p]rivate property shall not be taken for public use, or damaged, without just compensation . . . ." See S.D. Const. art. VI, § 13 (emphasis added); Krier, 2006 S.D. demonstrate the ebb and flow of the well's coliform levels after the pond's construction. No evidence within this record establishes the source of the coliform or whether the well contained coliform before construction of the BLSD pond. Additionally, the Krsnaks' appraisal evaluated only the economic impact the pond had on their property, concluding its proximity and smell negatively impacted the land's marketability and value. The appraisal did not address the coliform in the well or the possible cause of the contamination. Thus, the Krsnaks have not presented evidence of causation. [¶30.] Considering the foregoing facts and arguments, the Krsnaks have failed to present a claim of inverse condemnation. See Bordeaux v. Shannon Cty. Sch., 2005 S.D. 117, ¶ 14, 707 N.W.2d 123, 127 (noting that a party resisting summary judgment must present facts rather than "[u]nsupported conclusions and speculative statements . . . [that] do not raise a genuine issue of fact.") Although they have established that fecal matter contaminates their well water, they have not shown a governmental entity caused the invasion. Their suspicion that the coliform in their well originated from the BLSD pond, without evidence of the source of the contamination, merely raises unsupported conclusions and speculation. See Long v. State, 2017 S.D. 79, ¶ 23, 904 N.W.2d 502, 511 ("[T]he duty to show both actual and proximate causation is implicit in inverse condemnation.") The circuit court did not err in dismissing the Krsnaks' claim for inverse condemnation.

The nuisance claim [¶31.] Next, the Krsnaks argue the circuit court erred by granting the District's motion for summary judgment on their nuisance claim. The Krsnaks contend that the depositions, affidavits, and exhibits in the record demonstrate that the BLSD pond creates an "unlawful nuisance" by contaminating their air, impeding their business venture, and secreting sewage into their well. The District contradicts their assertions, stating that "the Krsnaks [did] not identify a single applicable statute or regulation they claim the District violated and thereby created a nuisance." [¶32.] Sanitary districts are specifically authorized by statute. See SDCL 34A-5-26(4). "Nothing which is done or maintained under the express authority of a statute can be deemed a nuisance." SDCL 21-10-2; see Kuper v. Lincoln-Union Elec. Co., 1996 S.D. 145, ¶ 47, 557 N.W.2d 748 761 ("[O]ur legislature has . . . made it quite clear that a public utility cannot be designated a nuisance."). Accordingly, to overcome the District's motion for summary judgment, the Krsnaks must present evidence that the District engaged in some act or omission that violated its statutory authority. See Kuper, 1996 S.D. 145, ¶ 47, 557 N.W.2d at 761. Pursuant to SDCL 21-10-1, for an actionable claim, the District must be unlawfully engaged in "an act, or omitting to perform a duty, which act or omission either . . . [a]nnoys, injures, or endangers the comfort, repose, health, or safety of others[,]" or "renders other persons insecure . . . in the use of property." [¶33.] Like their inverse condemnation claim, because the Krsnaks did not present evidence that the BLSD pond is unlawfully contaminating their well, their claim must fail. See SDCL 34A-5-26(4) (authorizing sanitary districts to maintain and operate sewage disposal plants); SDCL 21-10-2. In light of the fact that the legislature authorized sewage districts for public benefit, upon review of the evidence presented in this case, the Krsnaks have failed to establish a cause of action based upon nuisance. Thus, the circuit court did not err in granting the District's motion for summary judgment. [¶34.] We affirm. [¶35.] GILBERTSON, Chief Justice, and JENSEN and SALTER, Justices, concur.