City of Rapid City v. Schaub

• Decision Date: 02 September 2020
• Docket Number: #28932
• Citation: 948 N.W.2d 870
• Parties: CITY OF RAPID CITY, Plaintiff and Appellee, v. Rodney P. SCHAUB, Defendant and Appellant.
• Court: South Dakota Supreme Court

948 N.W.2d 870

CITY OF RAPID CITY, Plaintiff and Appellee,

v.Rodney P. SCHAUB, Defendant and Appellant.

#28932

Supreme Court of South Dakota.

CONSIDERED ON BRIEFS SEPTEMBER 30, 2019

OPINION FILED September 2, 2020

KINSLEY P. GROOTE, Assistant City Attorney, Office of the City Attorney, Rapid City, South Dakota, Attorneys for plaintiff and appellee.

RODNEY P. SCHAUB, Rapid City, South Dakota, Pro Se Defendant and Appellant.

SALTER, Justice

[¶1.] Rodney Schaub appeals the circuit court's decision to affirm his magistrate court conviction for operating an onsite wastewater system without a permit. We affirm.

Background

[¶2.] Rodney Schaub owns real estate, including a home, that is located northeast of Rapid City, within one mile of the municipal boundaries. Schaub's property is not connected to a municipal sewer system, and he instead relies upon an onsite wastewater system. In 2006, Rapid City (the City) adopted an ordinance requiring owners of onsite wastewater systems to obtain sewer permits. The permits are renewable every six years after the owners have their systems pumped empty and inspected by the City's public works director or a designee.¹ Citing its extraterritorial jurisdiction, the City sought to apply the ordinance to landowners within one mile of its exterior boundaries.

[¶3.] During 2016, the City sent Schaub three notices explaining the requirement to have his system inspected and to ultimately obtain a permit. After receiving no response, the City sent Schaub another letter by certified mail in April 2017. Schaub spoke in person with the City's septic coordinator, who explained the permit process and the appeals process. After an unsuccessful effort to obtain a waiver exempting his wastewater system from the City's ordinance, Schaub failed to comply with an August 31, 2017 deadline to have his septic system inspected.

[¶4.] The City Attorney's Office formally charged Schaub with maintaining an onsite wastewater system without a permit in January 2018. Following a magistrate court trial on September 25, 2018, Schaub was convicted for failure to obtain a permit in violation of RCMC 13.20.800. The court fined Schaub $200 and ordered him to pay $60 in court costs.²

[¶5.] Schaub appealed his conviction to the circuit court, arguing RCMC 13.20.800: (1) violates the ex post facto clauses of the United States Constitution and the South Dakota Constitution; (2) is preempted by state administrative rules; and (3) exceeds the City's authority since he lives outside of the city limits. The circuit court affirmed Schaub's conviction, finding that the City's sewerage permit ordinance is not an ex post facto law. The court further determined that South Dakota statutes allow a municipality to promulgate more stringent laws than state administrative regulations, and the City has statutory authority to enforce its sewerage permit requirement against Schaub.

[¶6.] Schaub raises three issues on appeal that we restate as follows:

1. Whether the circuit court erred when it determined that the City's sewerage permit ordinance is not an ex post facto law.

2. Whether the circuit court erred when it determined that state administrative regulations set minimum standards and the City was authorized to enact more stringent sewerage ordinances.

3. Whether the circuit court erred when it determined that the City could enforce sewerage ordinances upon residents living within one mile of the City's boundaries.

Analysis

Ex Post Facto Claim

[¶7.] The United States Constitution and South Dakota Constitution both prohibit the passage of an ex post facto law,³ which is defined as "[a] statute that criminalizes an action and simultaneously provides for punishment of those who took the action before it had legally become a crime ...." Ex Post Facto Law , Black's Law Dictionary (11th ed. 2019). We have previously held that "a statute ... is not rendered unconstitutional as an ex post facto law merely because it might operate on a fact or status preexisting the effective date of the legislation, as long as its punitive features apply only to acts committed after the statutory proscription becomes effective." State v. Smith , 2014 S.D. 15, ¶ 16, 844 N.W.2d 626, 630 (quoting State v. Arguello , 2002 S.D. 157, ¶ 14, 655 N.W.2d 451, 454 ).⁴

[¶8.] Here, Schaub's ex post facto argument is not supportable.⁵ The record establishes that Schaub's failure to obtain a permit for his onsite wastewater system occurred in 2018—well after the City enacted its onsite wastewater system ordinance in 2006.⁶ To be considered an ex post facto law, Schaub would need to show that he was convicted for conduct committed before the ordinance was enacted in 2006.⁷ In other words, the fact that Schaub's onsite wastewater system may have existed prior to 2006 does not, itself, excuse him from the requirement to comply with the ordinance.

[¶9.] Schaub's reliance on Lamar Outdoor Advertising, Inc. v. City of Rapid City to support his argument that RCMC 13.20.800 is an ex post facto law is misplaced. 2007 S.D. 35, 731 N.W.2d 199. In Lamar , we held that a city council acted within its authority when it allowed a sign company to complete a project initiated under the provisions of the then-existing city sign ordinance. Id. ¶ 25, 731 N.W.2d at 205. The Lamar decision did not involve an ex post facto argument or discussion.

[¶10.] Nevertheless, Schaub believes his position is buoyed by our generic statement that "zoning laws may not be retroactively applied so as to deprive property owners of prior vested rights by preventing a use that was lawful before the enactment of zoning laws." Id. His suggestion that the City is retroactively applying RCMC 13.20.800 and divesting him of a property right is unconvincing.

[¶11.] The City is not applying the ordinance retroactively, as we have indicated. Beyond that, Schaub has not established that he has a vested property right in operating his onsite wastewater system free of the City's inspection and permit requirements—the only obligations imposed by RCMC 13.20.800 that are at issue here. Indeed, these basic requirements contemplate that Schaub can continue to operate his existing system.

Preemption Claim

[¶12.] "The interpretation of an ordinance presents a question of law reviewable de novo." Parris v. City of Rapid City , 2013 S.D. 51, ¶ 10, 834 N.W.2d 850, 854 (quoting Atkinson v. City of Pierre , 2005 S.D. 114, ¶ 10, 706 N.W.2d 791, 795 ). "Administrative regulations are subject to the same rules of construction as are statutes." Krsnak v. S.D. Dep't of Env't & Natural Res. , 2012 S.D. 89, ¶ 16, 824 N.W.2d 429, 436 (quoting Westmed Rehab, Inc. v. Dep't of Soc. Servs. , 2004 S.D. 104, ¶ 8, 687 N.W.2d 516, 518 ).

[¶13.] Generally, "municipal corporations possess only those powers given to them by the Legislature[,]"⁸ and it is possible for the Legislature to preempt a city's regulatory efforts, either expressly or impliedly. Law v. City of Sioux Falls , 2011 S.D. 63, ¶ 9, 804 N.W.2d 428, 432.

Express preemption occurs when there is a specific legislative enactment reflecting the Legislature's intent to preempt any local regulation. Implied preemption, on the other hand, exists when the legislative scheme "is sufficiently comprehensive to make reasonable the inference that" the Legislature "left no room for supplementary" local regulation.

Id. ¶ 10, 804 N.W.2d at 432 (citation omitted).

[¶14.] As is relevant to our discussion here, Chapter 74:53:01 of South Dakota's administrative rules (ARSD) contains regulations promulgated by the Department of Environmental and Natural Resources (DENR) concerning "Individual and Small on-Site Wastewater Systems."⁹ Among other things, ARSD Chapter 74:53:01 establishes specifications and requirements for onsite wastewater treatment systems, including septic tank systems. See ARSD 74:53:01:23 (prescribing "minimum design and construction requirements for septic tanks"). However, these specifications and requirements may not apply to systems that existed prior to February 28, 1975, by virtue of ARSD 74:53:01:04. This provision provides in part that these existing systems "are not subject to this chapter unless the systems are changed, the systems cause the groundwater to become polluted, or the systems are allowing wastewater to surface." The parties differ markedly in their views about the applicability of this administrative provision to this case.

[¶15.] Schaub claims ARSD 74:53:01:04 effectively "grandfather[s]" his onsite wastewater system into compliance and argues further that this regulation has a preemptive effect that categorically prohibits local regulation of his system by municipalities.¹⁰ The City, for its part, contends that the regulations contained in ARSD Chapter 74:53:01 merely prescribe minimum standards, leaving municipalities free to prescribe "more stringent" standards. We are not convinced that either argument guides our consideration of this issue.

[¶16.] Initially, Schaub has not established that his system fits within the date restriction of ARSD 74:53:01:04. Like the circuit court, we see no evidence in the record to indicate that Schaub's septic system was "existing prior to February 28, 1975[,]" and his preemption claim fails on this basis alone. However, even if the state of the record were otherwise and reflected evidence that Schaub's system existed before the regulation's cutoff date, his preemption argument is not persuasive.

[¶17.] The text of ARSD 74:53:01:04 generally exempts certain existing onsite wastewater systems from the technical specifications and requirements of ARSD Chapter 74:53:01, but none of those standards are at issue in this municipal prosecution for violating RCMC 13.20.800. The City's complaint charged Schaub with violating RCMC 13.20.800 by failing to "obtain[ ] a sewerage permit[,]" and the magistrate court found Schaub guilty of failing to secure the permit. Even if ARSD 74:53:01:04 ’s exemption for existing wastewater systems were preemptive, and we do...