Krsnak v. Brant Lake Sanitary District, 121918 SDSC, 28352-a-JMK

Docket Nº:28352-a-JMK
Opinion Judge:KERN, Justice
Party Name:JIMMY KRSNAK and LINDA L. KRSNAK, Plaintiffs and Appellants, v. BRANT LAKE SANITARY DISTRICT, Defendant and Appellee.
Attorney:R. SHAWN TORNOW Sioux Falls, South Dakota Attorney for plaintiffs and appellants. JOEL R. RISCHE VINCE M. ROCHE of Davenport, Evans, Hurwitz & Smith, LLP Sioux Falls, South Dakota Attorneys for defendant and appellee.
Judge Panel:GILBERTSON, Chief Justice, and JENSEN and SALTER, Justices, concur.
Case Date:December 19, 2018
Court:Supreme Court of South Dakota
 
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2018 S.D. 85

JIMMY KRSNAK and LINDA L. KRSNAK, Plaintiffs and Appellants,

v.

BRANT LAKE SANITARY DISTRICT, Defendant and Appellee.

No. 28352-a-JMK

Supreme Court of South Dakota

December 19, 2018

ARGUED OCTOBER 1, 2018

APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT LAKE COUNTY, SOUTH DAKOTA, THE HONORABLE VINCENT A. FOLEY Retired Judge

R. SHAWN TORNOW Sioux Falls, South Dakota Attorney for plaintiffs and appellants.

JOEL R. RISCHE VINCE M. ROCHE of Davenport, Evans, Hurwitz & Smith, LLP Sioux Falls, South Dakota Attorneys for defendant and appellee.

KERN, Justice

[¶1.] The Brant Lake Sanitary District (the District) built an additional sewage lagoon to process wastewater from the Brant Lake area. The Krsnaks, who live a short distance from the new pond, brought an action against the District alleging a taking or damaging of their property and nuisance. The circuit court granted the District's motion for summary judgment on all claims. The Krsnaks appeal. We affirm.

Facts and Procedural History

[¶2.] The District designed and constructed a treatment pond to service the increase in wastewater flow in the Brant Lake area. This new pond, referred to as the Brant Lake Sanitary District pond (BLSD pond), connected into two previously existing treatment ponds operated by the Chester Sanitary District.

[¶3.] Jimmy and Linda Krsnak own 8.27 acres of property approximately 675 feet north of the new water treatment pond and 1, 100 feet from the existing ponds. Linda has operated a vegetable farm called "Linda's Gardens" from the property since 2005. The Krsnaks also have a sixty-foot well on their land, which they use to water crops for the business. They opposed construction of the BLSD pond and brought several lawsuits hoping to stop the project.

[¶4.] In 2011, the Krsnaks appealed to the circuit court the Lake County Board of Adjustment's decision to grant the District a conditional use permit to build the pond. In a memorandum decision dated June 28, 2011, the circuit court dismissed their action for failing to meet the statutory requirements for contesting such a decision. See SDCL 11-2-61 to -65. Next, the Krsnaks filed a petition for a writ of mandamus to compel the South Dakota Department of Environmental and Natural Resources (DENR) to stay construction of the pond. In that action, the Krsnaks argued DENR did not comply with existing legal requirements when it approved the BLSD pond. Specifically, they asserted that DENR violated SDCL 34A-2-27 to -29, administrative rules (ARSD 74:53:01), and its own internal guidelines set forth in the Recommended Design Criteria Manual for Wastewater Collection and Treatment Facilities. The circuit court denied the petition for writ of mandamus and, on appeal, we affirmed. See Krsnak v. S.D. Dep't of Env't & Nat. Res., 2012 S.D. 89, ¶ 23, 824 N.W.2d 429, 438.

[¶5.] In May 2012, around the same time the Krsnaks petitioned for writ of mandamus, they also filed the present action. They alleged in their complaint that the District's new pond violated: (1) SDCL 21-10-1, the general nuisance statute; (2) SDCL 34A-2-21's prohibition against pollution of state waters; and (3) a Lake County ordinance. On July 2, 2012, the District moved to dismiss, arguing the nuisance violations were premature because the pond was not yet constructed. In the interim, the Krsnaks filed an amended complaint seeking a declaratory judgment and bringing an additional claim of inverse condemnation along with their nuisance claim. In the Krsnak's view, because they filed an amended complaint after the District moved to dismiss, the District's motion was moot because it targeted their original complaint rather than the amended version.

[¶6.] On December 31, 2012, the circuit court denied the District's July 2012 motion to dismiss, suggesting the denial was an "invitation for further evidence" from the Krsnaks regarding their water seepage claims.1 The District filed an answer in January 2013, denying the allegations set forth in the Krsnaks' amended complaint and asserting the affirmative defenses of res judicata and collateral estoppel. It also argued the Krsnaks' case should be dismissed under the doctrine of stare decisis.

[¶7.] Sometime in late 2012 or early 2013, the BLSD pond went into operation. Soon after, the Krsnaks and their neighbors began reporting stronger odors emanating from the pond than from the existing Chester system. In April 2014, the District deposed Linda and Jimmy Krsnak. During his deposition, Jimmy Krsnak stated the odor "has actually made us physically ill. We've had odor so bad that we just had to leave the place."

[¶8.] After the depositions, however, the litigation stagnated for more than two years. The District sent the Krsnaks a letter asking for supplemental discovery responses on April 9, 2014. Even though the parties exchanged several emails between June 2014 and January 2015, the Krsnaks did not produce the discovery. The District moved to dismiss for failure to prosecute on May 29, 2015. The circuit court denied the motion.

[¶9.] Meanwhile, in early 2015, the Krsnaks retained an expert to appraise the value of their property before and after construction of the BLSD pond. The appraiser concluded that their property suffered a diminution in value of $82, 800.00 because of the new sewage pond. The appraiser noted the pond's proximity to the Krsnaks' house, the odor, and its size. According to the report, these factors diminished the property's value and negatively impacted its marketability.

[¶10.] On June 6, 2016, the District moved for summary judgment regarding the Krsnaks'...

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