Carmody v. Lake Cnty. Bd. of Comm'rs, #28761

• Court: Supreme Court of South Dakota
• Writing for the Court: KERN, Justice
• Citation: 938 N.W.2d 433
• Parties: James CARMODY, Appellant, v. LAKE COUNTY BOARD OF COMMISSIONERS, Appellee, and Steven Carmody and Dallas Schwiesow, Interested Parties. James Carmody, Appellant, v. Lake County Board of Commissioners, Appellee, and Edward Becker, Interested Party.
• Decision Date: 22 January 2020
• Docket Number: #28761

938 N.W.2d 433

James CARMODY, Appellant,
v.
LAKE COUNTY BOARD OF COMMISSIONERS, Appellee,
and
Steven Carmody and Dallas Schwiesow, Interested Parties.

James Carmody, Appellant,
v.
Lake County Board of Commissioners, Appellee,
and
Edward Becker, Interested Party.

#28761

Supreme Court of South Dakota.

CONSIDERED ON BRIEFS APRIL 29, 2019
OPINION FILED January 22, 2020

MIKE C. FINK, Bridgewater, South Dakota, Attorney for appellant.

WILLIAM C. GARRY, MELISSA R. JELEN of Cadwell, Sanford, Deibert & Garry, LLP, Sioux Falls, South Dakota, Attorneys for appellee.

KERN, Justice

¶1.] Steven Carmody and Edward Becker applied for permits to install drain

[938 N.W.2d 435

tile on their respective properties in Lake County. James Carmody objected to both permits. The Lake County Board of Commissioners, sitting as the Lake County Drainage Board (Board), approved the permits at public hearings, and James appealed to the circuit court. The appeals were consolidated. The circuit court, following a trial, applied the abuse of discretion standard of review and affirmed the Board’s approval of the drainage permits. James appeals. We affirm.

Facts and Procedural History

¶2.] Lake County adopted a drainage ordinance in 2002. The ordinance requires landowners to obtain a drainage permit before installing drain tile. Applicants must "provide a detailed site plan showing the location of the proposed construction. The site plan shall include a description of the type and size of the drain, and the location of the proposed outlet." An administrative official reviews the application. Applications that are incomplete or "insufficient to make an informed decision on the application ... shall be returned to the applicant for revision. The [a]dministrative [o]fficial may also require that the applicant provide a detailed survey prepared by a professional engineer or surveyor."

[¶3.] The Board considers drainage permit applications at public hearings. Affected landowners within one mile of the proposed drain outlet must be notified of the hearing by certified mail. Additionally, notices of hearings on permit applications are published in a local newspaper and posted conspicuously by the proposed project site. The ordinance sets forth the factors the Board must consider when evaluating permit applications.

At a minimum, the following factors shall be considered in evaluating the impact of a proposed drainage project:

1) Flood hazards, floodplain values;

2) Erosion potential;

3) Water quality and supply;

4) Agricultural production;

5) Environmental quality;

6) Aesthetics;

7) Fish and wildlife values; and

8) Considerations of downstream landowners and the potential adverse effect thereon including consideration of the following criteria:

a) Uncontrolled drainage into receiving watercourses which do not have sufficient capacity to handle the additional flow and quantity of water shall be considered to have an adverse effect.

b) Whether drainage is accomplished by reasonably improving and aiding the normal and natural system of drainage according to its reasonable carrying capacity, or in the absence of a practical natural drain, a reasonable artificial drain system is adopted.

c) The amount of water proposed to be drained.

d) The design and other physical aspects of the drain.

e) The impact of sustained flows.

Also, under SDCL 46A-10A-30, county boards are bound by the factors set forth in SDCL 46A-10A-20, codifying the civil law rule, when considering drainage permits in rural areas.

[¶4.] Steven and James own adjacent farmland in Lake County. An established watercourse flows west from Steven’s property into a ditch on James’s property, then begins its northerly route under a road into a ditch on Don Halverson’s property, and then flows into a ditch on Vernon Olson’s property. Finally, the water empties into a wetland owned by James. The wetland is not currently farmed because it

[938 N.W.2d 436

is under contract with the Conservation Reserve Program (CRP) until 2022. Steven applied for a drainage permit in late 2017 to install drain tile on his farmland. Steven’s application included plans to install pipe on James’s property as well, although Steven had not obtained permission from James to do so, nor did he present authority allowing him to come onto James’s property without permission.

¶5.] The Lake County Drainage Administrator, Mandi Anderson, produced a staff report for Steven’s application. The staff evaluation section noted that Steven’s property was the dominant estate, described the flow of the established watercourse, and described past maintenance of the drainage ditches. The report indicated that Steven had been denied a permit for a similar drainage project in 2013, but there was no record of the reason for the denial. The staff report recommended that Steven’s permit be granted for the following reasons:

I do believe that the land receiving the water will remain rural in character and that this new drain tile [will] not create unreasonable hardship or injury.

That the land being drained is being done so in the smallest amount to increase the yield of future crops and will improve soil erosion and therefor[e] it is a reasonable request.

The proposed drain tile will not alter the current water course.

The proposed tile is the minimum tile plan that will make possible the reasonable use of the land.

The report also references relevant definitions from the Lake County drainage ordinance and factors to consider in evaluating permit applications. Prior to the hearing, Board members received a packet of information containing Steven’s application and other pertinent information.

[¶6.] James received notice of Steven’s proposed drainage project and objected. The Board held a hearing on November 21, 2017. Steven and Dallas Schwiesow, the tile installer, appeared and spoke in favor of the application. James and Halverson appeared to present their objections. James first objected on the basis that Steven had not obtained permission to install pipe on his land. He also claimed that due to obstructions to the water flow on Olson’s property, water had been backing up in the ditch on his farmland and was taking a long time to dry, making it difficult to farm. In support of his objection, he presented pictures of flooding on his property in 2014.¹ He argued that Steven’s project would further increase the flow of water onto his property, and it would take even longer to dry out.

[¶7.] Steven withdrew his plans to install pipe on James’s property at the hearing, but there was no decision as to where the new outlet would be located. At the end of the hearing, the Board approved Steven’s drainage permit application and adopted the findings of the staff report. The Board did not request a new application with revised plans. The Board also suggested that those affected by obstructions on Olson’s property should take him to court to force him to clean out his ditch.

[¶8.] The second permit concerns Becker’s land. An established watercourse runs south off Becker’s property into an existing tile line on property owned by Adam Gaspar and Angela Dornbusch. The water then empties into James’s CRP wetland, flows onto another parcel of Becker’s land to the west, and continues flowing northwest. Becker had applied for a drainage

[938 N.W.2d 437

permit in early 2018 to drain five acres of his land by hooking into the tile line on Gaspar and Dornbusch’s property. Like the report prepared for Steven’s application, Anderson’s staff report described the location of Becker’s proposal, the characteristics of the tile line involved, and the current watercourse. It also referenced the applicable definitions and evaluation factors from the ordinance. Anderson’s report recommended approval of Becker’s permit for reasons identical to those set forth in Steven’s application. The Board again received a packet of information relating to the application prior to the hearing on February 6, 2018.

¶9.] At the public hearing, James and Halverson objected to Becker’s application. James gave a presentation to the Board, arguing that every new drainage project the Board approved caused hardship to his property. While the land involved in the Becker permit was currently unfarmed, James informed the Board that the amount of water in his wetland already exceeded its carrying capacity. After a motion to deny Becker’s permit failed, the Board voted to approve Becker’s drainage application.

[¶10.] James timely appealed both permits to the circuit court, and the cases were consolidated. James requested a de novo review of the Board’s decision to issue the permits under SDCL 7-8-30. During a pretrial hearing to determine the applicable standard of review, the circuit court ruled that a decision to grant or deny a drainage permit is administrative, not quasi-judicial, and therefore, the correct standard of review is abuse of discretion. As such, the court concluded that the burden of proof would rest on James.

[¶11.] The circuit court held an evidentiary proceeding on July 20, 2018. The court heard testimony from James, Halverson, Anderson, Schwiesow, Steven, and Becker. The court also received several exhibits into evidence, including the Lake County drainage ordinance, the permit application materials, the materials James presented to the Board, and the minutes of both hearings. Because Lake County does not record its hearings, the court...