Green v. Cleary Water, Sewer & Fire Dist., No. 2003-CA-01062-COA.
| Decision Date | 26 October 2004 |
| Docket Number | No. 2003-CA-01062-COA. |
| Citation | 910 So.2d 1 |
| Parties | Harold GREEN, et al., and City of Richland, Mississippi, Appellants v. CLEARY WATER, SEWER & FIRE DISTRICT, Appellee. |
| Court | Mississippi Supreme Court |
Jay Max Kilpatrick, Paul B. Henderson, Jackson, David Ringer, and Michael D. Caples, Jackson, attorneys for appellants.
James A. Bobo, Pearl, attorney for appellee.
EN BANC.
KING, C.J., for the Court.
¶ 1. On August 23, 2002, 123 residents of Rankin County, brought suit against the Cleary Water, Sewer, & Fire District. On September 3, 2002, the City of Richland was granted a motion to intervene. The residents, and the City, were seeking a declaratory judgment and injunctive relief against the District. On April 17, 2003, Special Chancellor Jason H. Floyd, Jr. granted the District's motion for summary judgment. Aggrieved by this dismissal, co-appellants Green, and the City have perfected their appeal. Green and the City of Richland filed separate briefs, and the following issues were addressed, which we quote verbatim:
By co-appellant Green:
I. Whether the Cleary Water, Sewer & Fire District has the express statutory authority or jurisdiction to enact an ordinance regulating the use, repair, maintenance and operation of an "Individual On-Site Wastewater Disposal System."
II. Whether the "Decentralized Wastewater Use Ordinance" enacted by the Cleary Water, Sewer & Fire District is preempted by the Mississippi Legislative enactment of the Mississippi Individual On-Site Wastewater Disposal System Law as codified at the Mississippi Code, Annotated, Section 41-67-1, et seq., and the Mississippi Department of Health regulations governing Individual On-site Wastewater Disposal Systems.
III. Whether the ordinance as enacted constitutes a taking of personal property without just compensation as protected by the Fifth Amendment of the Constitution of the United States of America and Article 3 Section 17 of the Constitution of the State of Mississippi.
IV. Whether the Chancellor committed reversible error in considering the affidavits not delivered to counsel opposite the day prior to hearing and not received by counsel opposite minutes prior to the hearing.
V. Whether the Chancellor committed reversible error in relying on affidavits of employees of state agencies as speaking on behalf of the State of Mississippi and legal conclusions that the ordinance in question did not conflict with the Department of Health regulations.
By co-appellant City of Richland:
I. Whether the Cleary Water, Sewer, & Fire District has the express statutory authority and/or jurisdiction to enact an ordinance regulating the use, repair, maintenance and operations of an "Individual On-Site Wastewater Disposal System."
II. Whether the Ordinance enacted by the Cleary Water, Sewer, & Fire District is preempted by the Mississippi Individual On-Site Wastewater Disposal System law as codified at Mississippi Code Ann. § 41-67-1 et seq.
We will not address the issues as they were presented, as the following restated issue is dispositive of the case.
Whether the Cleary Water, Sewer & Fire District had the statutory authority to enact the Ordinance.
¶ 2. Pursuant to Mississippi Code Annotated Sections 19-5-151-207, the Rankin County Board of Supervisors adopted a resolution fixing January 16, 1977, as the date for the creation of the Cleary Sewer District. On May 16, 1980, the Governor of the State of Mississippi approved local and private legislation which created the Cleary Heights Water and Sewer District. The legislation provided that "[h]ereafter . . . the Cleary Heights Water and Sewer District . . . shall have all powers granted to a water and sewer district under the provisions of Mississippi Code Annotated Sections 19-5-151 through 19-5-257, Mississippi Code of 1972, as now or hereafter amended, whether or not such powers were enumerated in the resolution of the board of supervisors creating the Cleary Heights Sewer District." In 1986, the District adopted a resolution to combine its operations with the Cleary Fire Protection District and to continue joint operations under the name Cleary, Water, Sewer and Fire District. The District provides potable water, and waste water disposal to a large area located in southwest Rankin County.
¶ 3. Personnel employed by the District routinely observed untreated or under-treated waste sewage being discharged upon the ground within the District on properties which have on-site waste water treatment systems. By 2000, this problem, coupled with increased population growth within the District, caused the Mississippi State Department of Health (MDH) to recommend that the District investigate the regulation of sewage through an ordinance regulating on-site waste water systems (septic tanks). The District met with personnel from the MDH and Mississippi Department of Environmental Quality (MDEQ) to develop regulations to address the discharge of waste water in the district. The draft of the proposed Ordinance was sent to both the MDH and the MDEQ for review and comment. The MDEQ informed the District by letter of their support of the "District's adoption of such an ordinance and believe it will provide needed additional protection of the environment."
¶ 4. After a review of the Ordinance by MDEQ and MDH, the District published a "Notice of Public Hearing," regarding the proposed Ordinance, in The Rankin County News. The Notice was also posted in three public places within the District. A public hearing was held, and there were no objections to the adoption of the Ordinance.
¶ 5. On June 14, 2001, the District adopted the "Decentralized Wastewater Use Ordinance." The purpose of the Ordinance was to regulate the use and repair of individual on-site wastewater disposal systems. The Ordinance required that customers with individual on-site wastewater disposal systems have them inspected and where necessary repaired to comply with the Ordinance.
¶ 6. In an effort to get compliance with the Ordinance, the District mailed three letters to customers with individual on-site wastewater disposal systems. These letters advised customers that their failure to comply with the Ordinance would result in the District turning off their potable water supply.
¶ 7. On August 23, 2002, about 123 residents of the District filed suit in the Chancery Court of Rankin County seeking a declaratory judgment and injunctive relief against the District. The residents argued that the District did not have statutory authority to enact an Ordinance regulating individual on-site wastewater disposal systems, and the residents sought to have the Ordinance declared void. The residents also requested an injunction to prevent the District from disengaging water service to individuals who refused to comply with the Ordinance.
¶ 8. On August 23, 2002, an order of recusal was issued by Rankin County Chancellors John S. Grant III and Thomas L. Zebert. On August 27, 2002, the Mississippi Supreme Court appointed special chancellor Jason H. Floyd, Jr. to preside over the proceedings.
¶ 9. On September 3, 2002, the City of Richland filed a motion to intervene, contending that the District did not have authority to regulate individual on-site wastewater systems. On the same day the Chancellor granted Green's motion for a preliminary injunction, and the City's motion to intervene.
¶ 10. On September 18, 2002, the District removed the suit to the United States District Court for the Southern District of Mississippi, alleging that the complaint sought to have the Ordinance declared unconstitutional, thereby creating a federal question. On October 18, 2002, Green, filed a motion to remand, contending the federal constitutional question was merely speculative. On January 13, 2003, U.S. District Judge William Barbour, Jr. granted Green's motion to remand the case to the Chancery Court of Rankin County.
¶ 11. On January 26, 2003, the District filed a motion to dismiss, or in the alternative for summary judgment, and for other relief. On February 10, 2003, Green responded to the motion to dismiss and filed his own motion for summary judgment. On March 5, 2003, the District filed its response to Green's motion for summary judgment.
¶ 12. On April 2, 2003, the District submitted the affidavit of Ralph R. Turnbo, Jr., the director of the Division of Onsite Wastewater with the Mississippi State Department of Health, which stated that the Ordinance, "does not unlawfully encroach upon the authority of the Mississippi Department of Health." On April 17, 2003, Chancellor Floyd granted the District's motion for summary judgment, without opinion. Aggrieved, Green appeals to this Court.
Whether the Cleary Water, Sewer & Fire District had the statutory authority to enact the Ordinance.
¶ 13. Neither party disputes that the District's power to regulate is governed by statute. However, the conflict arises over which statute is applicable. Green contends that the trial court erred in denying his motion for summary judgment because the District lacked statutory authority, or jurisdiction, to regulate individual on-site wastewater disposal systems. Green argues that Mississippi Code Annotated Section 19-5-1731 grants general powers to the District, but it does not expressly or impliedly grant the District jurisdiction over the use, repair, maintenance, or operation of individual on-site wastewater disposal systems. Moreover, Green contends that the Ordinance is preempted by the Mississippi Individual On-Site Wastewater Disposal System Law codified in Mississippi Code Annotated Sections 41-67-1-31, as it grants the Mississippi State Department of Health sole authority over individual wastewater systems. See Miss.Code Ann. § 41-67-3(1)2.
¶ 14. The City of Richland contends that pursuant to Mississippi Code Annotated Sections 41-67-1-31, the Legislature vested sole authority over...
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