Green v. Cleary Water, Sewer & Fire Dist.

• Decision Date: 15 September 2005
• Docket Number: No. 2003-CT-01062-SCT.,2003-CT-01062-SCT.
• Citation: 910 So.2d 1022
• Parties: Harold GREEN, et al., and City of Richland, Mississippi v. CLEARY WATER, SEWER & FIRE DISTRICT.
• Court: Mississippi Supreme Court

910 So.2d 1022

Harold GREEN, et al., and City of Richland, Mississippi v. CLEARY WATER, SEWER & FIRE DISTRICT.

No. 2003-CT-01062-SCT.

Supreme Court of Mississippi.

June 23, 2005.

Rehearing Denied September 15, 2005.

COPYRIGHT MATERIAL OMITTED

David Ringer, Paul B. Henderson, Jay Max Kilpatrick, Jackson, attorneys for appellants.

James A. Bobo, Brandon, attorney for appellee.

EN BANC.

GRAVES, Justice, for the Court.

¶1. This case concerns actions taken by the Cleary Water, Sewer & Fire District ("Cleary" or "Cleary District") in adopting and implementing its "Decentralized Wastewater Use Ordinance" ("Ordinance") which regulates the disposal of wastewater by residents who are not connected to Cleary's sewer system. Numerous residents of the Cleary District brought suit seeking a declaration that the ordinance was invalid and an injunction prohibiting enforcement of that ordinance. The City of Richland intervened as a party plaintiff in this matter. The special chancellor appointed to hear this matter granted Cleary summary judgment. Plaintiffs appealed and charged that the trial court erred on five grounds: (1) that Cleary had no statutory authority or jurisdiction to enact the challenged ordinance; (2) that the ordinance enacted by Cleary was preempted by Mississippi Individual On-Site Wastewater Disposal System law, Miss.Code Ann. §§ 41-67-1 et seq.; (3) that the ordinance unconstitutionally takes property without compensation under both the United States Constitution and Mississippi Constitution; (4) that the chancellor erred in considering affidavits not received by counsel opposite until minutes prior to the hearing in which they were introduced; and (5) that the chancellor erred in relying on affidavits of employees of state agencies, who purported to speak on behalf of the State, as being conclusive of the fact that the ordinance did not conflict with Health Department regulations.¹ A divided Court of Appeals affirmed the chancellor's decision. Green v. Cleary Water, Sewer & Fire Dist., 910 So.2d 1 (Miss.Ct.App.2004). We granted certiorari.

FACTS AND PROCEDURAL HISTORY

¶2. The Cleary Water, Sewer and Fire District was created under the authority of Miss.Code Ann. §§ 19-5-151 through-207, which governs water, sewer, garbage disposal, and fire protection districts. Cleary obtained a certificate of convenience and necessity from the Public Service Commission authorizing it to construct, operate, and maintain a sewer system in a specified area within Rankin County. In 2000, Cleary obtained a supplemental certificate from the Public Service Commission which enlarged the area in which it was authorized to provide its services. Cleary sought to address a perceived problem of untreated or undertreated sewage being discharged onto the ground within the Cleary District by adopting the "Decentralized Wastewater Use Ordinance" which plaintiffs Harold Green, et al. and the City of Richland challenge here. Cleary maintains that it adopted the ordinance only after submitting it to the Mississippi State Department of Health (MDH) and the Mississippi Department of Environmental Quality (MDEQ) for comment and review.

¶3. Cleary published a Notice of Public Hearing concerning the possible adoption of the ordinance and then held a public hearing; no one at the hearing expressed opposition to the ordinance's adoption and Cleary adopted the ordinance at its June 14, 2001, meeting. Cleary sent a notice dated September 14, 2001, to all customers who received their supply of potable water from the Cleary District, informing them of the newly adopted ordinance and the steps that must be taken to comply with the ordinance.

¶4. The letter specifically informed water customers of the following: (1) Property owners with a properly working septic system would not be required to install a new system; (2) Each property owner must have his/her system inspected within one year of June 21, 2001, the date the letter was sent out, and have the results sent to Cleary's office; (3) Each year following the ordinance's institution, each property owner would be required to present proof that his/her system was working properly; (4) Property owners who could not show that their systems complied with the ordinance would be required to install an approved system and then become a sewer customer; (5) Cleary would accept ownership of the new disposal system and, in exchange, would maintain the unit for its usable life, bearing all routine maintenance costs; (6) Once becoming a sewer customer, property owners would be assessed a monthly service charge that would be added to their water bill; and (7) Present water customers were given the option of transferring ownership of their existing systems to Cleary, subject to certain qualifications.

¶5. Harold Green and 122 other residents of Rankin County filed suit against Cleary in Rankin County Chancery Court on August 23, 2002, seeking both declaratory and injunctive relief. They charged that Cleary was without authority to enact the subject ordinance and wanted a declaration that the ordinance was void. They also sought to enjoin Cleary from enforcing the ordinance against plaintiffs who refused to comply with its terms. The City of Richland sought to intervene and its motion was granted on September 3, 2002.² Chancellors John S. Grant, III and Thomas L. Zebert issued an order of recusal, and this Court appointed Jason H. Floyd, Jr. as a special chancellor for this case on August 27, 2002. Cleary removed to federal court, invoking the court's federal question jurisdiction, but the federal court remanded the case to chancery court on January 13, 2003.

¶6. Cleary filed a motion to dismiss/motion for summary judgment on January 27, 2003. Plaintiffs filed their response and own motion for summary judgment on February 11, 2003. The chancellor held a hearing on the parties' various motions and granted Cleary's motion for summary judgment without a written opinion on April 17, 2003. Plaintiffs timely appealed the chancellor's decision. The Mississippi Court of Appeals found that Cleary had statutory authority to enact the challenged ordinance and affirmed the chancellor's ruling in an opinion dated August 3, 2004. This Court granted plaintiffs' petition for certiorari on January 27, 2005.³

DISCUSSION

¶7. This Court reviews a trial court's grant of summary judgment de novo, viewing the evidence in a light most favorable to the non-moving party. Gale v. Thomas, 759 So.2d 1150, 1152 (Miss.1999). A grant of summary judgment will be reversed if any triable issues of fact exist. Id. at 1152.

¶8. The numerous issues raised by plaintiffs can be distilled down to two: (1) whether Cleary had the authority to enact its ordinance, and (2) whether summary judgment was properly granted.

I. Whether the Cleary District possessed the authority to enact its "Decentralized Wastewater Use Ordinance."

¶9. At the heart of this appeal is whether Cleary had the authority to enact the ordinance being challenged by plaintiffs. Cleary argues that it is granted such authority under Miss.Code Ann. § 19-5-173⁴ and § 19-5-175.⁵ Plaintiffs recognize Cleary's authority to build, maintain, and regulate a "sewer system" within the Cleary District but argue that Cleary is without authority to enact its "Decentralized Wastewater Use Ordinance" because the Legislature granted the Mississippi State Board of Health sole authority to regulate septic tanks under the Mississippi Individual On-Site Wastewater Disposal System Law, Miss.Code Ann. §§ 41-67-1 et seq.

¶10. Plaintiffs argue that a water or sewer district, being a statutory creation, may only exercise those powers expressly granted or necessarily implied by the Legislature and that such powers "must be found within the four corners of the statute under which the agency operates." Strong v. Bostick, 420 So.2d 1356, 1361 (Miss.1982) (citing Miss. Milk Comm'n v. Winn-Dixie La., Inc., 235 So.2d 684 (Miss.1970)). Because the statutes governing districts such as Cleary do not mention individual septic systems and the Legislature specifically granted the Department of Health authority to regulate individual on-site wastewater disposal systems (IOWDS) under Miss.Code Ann. §§ 41-67-1 et seq., plaintiffs allege that Cleary is without authority to regulate individual septic systems to control water quality within the district it governs.

¶11. Whether Cleary had the authority to enact the subject ordinance is dependent on how this Court construes competing statutes. In affirming the trial court's grant of summary judgment, the Court of Appeals found that Cleary had the authority to enact its ordinance under "general police powers" granted to water and/or sewer districts in Miss.Code Ann. § 19-5-173 (Rev.2003). Green, 910 So.2d at 5-6. The Court of Appeals also found that the Mississippi On-Site Wastewater Disposal System Law did not "expressly prevent" Cleary from "regulating the use or maintenance of individual on-site wastewater disposal systems," despite the fact that sewer districts were not mentioned in this statutory scheme. Green, 910 So.2d at 6. The Court of Appeals further stated that enactment of Miss.Code Ann. §§ 41-67-1 et seq., did not operate to repeal Miss.Code Ann. § 19-5-173, which gave Cleary the authority to "protect the potable water that it supplies to its customers through regulations protecting the health of these customers." Green, 910 So.2d at 6.

¶12. Plaintiffs, however, point out that the State Board of Health is given authority "[t]o exercise general supervision over the design, construction, operation, and maintenance of individual on-site wastewater disposal systems ..." and "[t]o adopt, modify, repeal and promulgate rules and regulations" regarding such systems under Miss.Code Ann. § 41-67-3(1). They argue that this grant to the Department of Health is exclusive and that the Legislature, in adopting the Mississippi Individual On-Site Wastewater...