Verry v. City of Belle Fourche

1999 SD 102, 598 N.W.2d 544, 1999 S.D. LEXIS 120
CourtSouth Dakota Supreme Court
DecidedJuly 28, 1999
DocketNone
StatusPublished
Cited by1 cases

This text of 1999 SD 102 (Verry v. City of Belle Fourche) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Verry v. City of Belle Fourche, 1999 SD 102, 598 N.W.2d 544, 1999 S.D. LEXIS 120 (S.D. 1999).

Opinions

MILLER, Chief Justice.

[¶ 1.] In this appeal we affirm the circuit court and hold that the statutory scheme does not permit a municipality to mandate involuntary annexation as a condition to providing city water and sewer services.

FACTS

[¶ 2.] Although Verry lives outside the city limits of Belle Fourche, her home is within 200 feet of City’s sewer and water mains. She claims that in December 1997 the South Dakota State Plumbing Commission cited her and gave her 21 days to correct certain violations. Verry asserted at oral arguments and in her brief that the City engineer was the individual who reported the alleged violations to the State. Because Verry was not connected to City’s [546]*546water or sewer services, she requested that City contract with her for such services. City agreed, but conditioned its agreement upon Verry’s petitioning for annexation into City. Upon her refusal to file an annexation petition, City refused to connect her to its services.

[¶ 3.] In February 1998, Verry brought suit against City seeking, among other things, connection to City’s services without the condition of annexation. Having agreed that no genuine issues of material fact were in dispute, the parties consented to having the case decided on cross motions for partial summary judgment. The trial court granted Verry’s motion on the count of her complaint, which alleged that City had no right to require annexation as a condition for Verry’s connection to City’s services.

[¶ 4.] City moved for reconsideration and, in the alternative, clarification of the trial court’s decision. Following a hearing . on that motion, the court vacated its prior judgment and reentered a judgment in Verry’s favor.

[¶ 5.] City appeals the trial court’s granting of summary judgment and raises the following issues:

1. Whether a municipality may lawfully require a nonresident to petition for annexation under SDCL 9-4-1 as a condition to providing city water and sewer services requested- under SDCL 9-47-28 and SDCL 9-48-53.
2. Whether a municipality may lawfully be ordered to contract with a nonresident for water and sewer services under SDCL 9^47-28 and SDCL 9-48-53 when City prefers to have the property annexed under SDCL 9-4-1.

STANDARD OF REVIEW

[¶ 6.] The issue before us is strictly a matter of law, which this Court reviews de novo. Hamerly v. City of Lennox Bd. of Adjustment, 1998 SD 43, ¶ 10, 578 N.W.2d 566, 568 (citing Peters v. Spearfish ETJ Planning Comm’n, 1997 SD 105, ¶ 5, 567 N.W.2d 880, 883 (citations omitted)).

DECISION

[¶ 7.] 1. City may not require Verry to petition for annexation under SDCL 9-4-1 as a condition to providing city water and sewer services under SDCL 9^7-28 and SDCL 9-48-53.

[¶ 8.] SDCL 9-47-28 and SDCL 9-48-53 govern municipal water and sewer systems. SDCL 9-47-28 provides in part:

Every building in which plumbing fixtures are installed shall be connected to a public water supply system if available. A public water system is available to a premise used for human occupancy if the property line of such premise is within two hundred feet of such system. A municipality may purchase, lease with purchase option, lease or otherwise acquire from the owners thereof, any preexisting private wells located within the municipality.

SDCL 9-48-53, which refers to sewer systems, has nearly identical language.1

[¶ 9.] City claims that the statutes place the burden on Verry to ensure that her property is connected to a public water and sewer supply system. It further argues that SDCL 9^4-12 provides the [547]*547means for her to obtain the benefit of such services, and that it may require her to petition for annexation under that statute prior to providing her with its services.3 We find these arguments to be without merit.

[¶ 10.] When interpreting SDCL 9-47-28 and SDCL 9-48-53, their words and phrases “must be given their plain meaning and effect.” NSP v. South Dakota Dep’t of Revenue, 1998 SD 57, ¶ 8, 578 N.W.2d 579, 581 (citing In re AT & T Information Systems, 405 N.W.2d 24, 27 (S.D.1987)). If the language of the statutes is clear, certain, and unambiguous, “ ‘there is no occasion for construction, and the Court’s only function is to declare the meaning of the statute[s] as clearly expressed[.]’ ” Juttelstad v. Juttelstad, 1998 SD 121, ¶ 13, 587 N.W.2d 447, 450 (quoting Mid-Century Ins. Co. v. Lyon, 1997 SD 50, ¶ 9, 562 N.W.2d 888, 891 (citation omitted)).

[¶ 11.] In our view, the language of both statutes is clear, certain, and unambiguous. They clearly state the requirements for connection to City’s services. They require buildings in which plumbing fixtures are installed to be connected to public water and sewer supplies, if the property line of the property on which such buildings are located is within 200 feet of the system. No other requirements need be met.

[¶ 12.] In addition, this Court has long recognized that “ Vhen “shall” is the operative verb in a statute, it is given “obligatory or mandatory” meaning and effect.’” NSP, 1998 SD 57, ¶ 8, 578 N.W.2d at 581 (quoting Fritz v. Howard Twp., 1997 SD 122, ¶ 15, 570 N.W.2d 240, 242 (citations omitted)); see also SDCL 2-14-2.1 (stating “[a]s used in the South Dakota Codified Laws to direct any action, the term, shall, manifests a mandatory directive and does not confer any discretion in carrying out the action so directed”). Here, the statutory language provides that the buddings “shall be connected.” Thus, we conclude that such a statutory directive makes the procedure mandatory for both Verry and City; neither party retains the discretion to refuse connection to City’s services.

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Related

Verry v. City of Belle Fourche
1999 SD 102 (South Dakota Supreme Court, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
1999 SD 102, 598 N.W.2d 544, 1999 S.D. LEXIS 120, Counsel Stack Legal Research, https://law.counselstack.com/opinion/verry-v-city-of-belle-fourche-sd-1999.