McLaen v. White Twp.

Citation2022 S.D. 26
Decision Date11 May 2022
Docket Number29599-a-PJD,29600-a-PJD
PartiesSTEVEN D. McLAEN AND MATTHEW McLAEN, Appellants, v. WHITE TOWNSHIP, a public corporation in Marshall County, South Dakota; DuWAYNE BOSSE, DOUG CHAPIN, and BRYAN HAWKINSON, in their capacities as members of the White Township Board of Supervisors, Appellees.
CourtSupreme Court of South Dakota

CONSIDERED ON BRIEFS OCTOBER 4, 2021

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT MARSHALL COUNTY, SOUTH DAKOTA THE HONORABLE RICHARD A. SOMMERS Judge

ALEX T. MASTELLAR JAYNE E. ESCH of Rinke Noonan, LTD St. Cloud Minnesota Attorneys for appellants.

ZACHARY W. PETERSON JOSHUA K. FINER of Richardson, Wyly, Wise Sauck & Hieb, LLP Aberdeen, South Dakota Attorneys for appellees.

DEVANEY, JUSTICE

[¶1.] Steven and Matthew McLaen obtained a drainage permit from the Marshall County Drainage Board. Thereafter, they sought approval of their project from the White Township Board of Supervisors because their drainage project could impact roads or rights-of-way in the Township. Ultimately, the Township denied the McLaens' request, and the McLaens filed an administrative appeal and a separate declaratory action, both of which challenged the Township's authority to regulate their drainage project and the merits of the Township's decision. The circuit court issued one memorandum decision addressing both actions and upholding the Township's decision. The McLaens filed a separate appeal in each action asserting multiple issues related to the Township's denial of their requested project. We consolidate the appeals and affirm.

Factual and Procedural Background

[¶2.] Steven McLaen owns agricultural property in White Township within Marshall County, South Dakota. He farms the property with his son Matthew McLaen. In 2014, the McLaens requested a drainage permit from the Marshall County Drainage Board for a drainage project in portions of Sections 16, 22, and 23 within White Township. The permit application is not in the record, but Steven related in an affidavit that the project would drain into a portion of the right-of-way along 103rd Street, a Township road, and would require the installation of culverts under the Township's roads. The County granted the permit "contingent on the applicant acquiring signed approval from the township for the drainage to run through a township ditch."

[¶3.] According to Steven, the standard practice in White Township when seeking approval for engaging in drainage projects that involve road crossings, draining in ditches, and lift stations, was to have an in-person or telephone conversation with a supervisor on the White Township Board of Supervisors. Steven claimed that he followed this practice in 2015 and discussed the drainage project with David Seibel, who at the time was a supervisor on the board. In an affidavit, Steven alleged that Seibel gave him verbal permission to make road crossings and install culverts as part of the drainage project. In an affidavit, Seibel confirmed that he had this 2015 discussion with Steven. Seibel further indicated he "had no problem with the drainage project and informed [Steven] of that." Seibel also related that he mentioned the McLaens' drainage project to the Township Board of Supervisors at its March 2016 annual meeting and that he did "not recall any opposition or other discussion."

[¶4.] From 2015 to July 2019, the McLaens performed some work on the drainage project. However, it is not clear from the record exactly what work has been done. It is undisputed that the McLaens experienced delays on the project due to their attempt to obtain a certified wetlands determination to ensure their project would not impact wetlands, and they did not begin the drain tile and lift station portions of the project until late July 2019. Steven claimed that when they began these portions of the project, the Marshall County drainage administrator informed him that the Township was concerned about what the McLaens were doing. The McLaens ceased work on their project, and on August 2, 2019, Matthew attended a meeting with the Township Board to discuss the intended project. He informed the supervisors that both the County and the Township had previously approved the project. Then, using a large Township map, Matthew explained how the proposed project would drain water into a Township right-of-way and where culverts would be installed under Township roads.

[¶5.] Seibel was no longer a supervisor on the Township Board because he was replaced by DuWayne Bosse after the 2016 annual meeting. None of the current supervisors (Bosse, Douglas Chapin, and Bryan Hawkinson) recalled approving the McLaens' project in the past and informed Matthew of their concern that it had not in fact been approved by the Township. They asked Matthew to provide the documents reflecting the project's approval. Around August 7, Steven provided the supervisors certain documents related to the project; however, those documents are not in the record. The supervisors testified in their depositions that the documents included the McLaens' application to Marshall County for a drainage permit, an estimate for the project, a site map of the tiling grid, some letters, and waivers from landowners.

[¶6.] The supervisors met again to discuss the McLaens' project at a special meeting on August 17, 2019, at Bosse's place of business, Bolt Marketing. Twenty-four hours prior to the meeting, Bosse posted notice of the meeting on the front door of Bolt Marketing. Bosse could not recall telling the McLaens about the August 17 meeting, and it is undisputed that the McLaens did not have knowledge of the meeting prior to it occurring.

[¶7.] Bosse testified that during the meeting, the supervisors discussed the project as proposed by the McLaens. Bosse and Chapin testified that they were under the impression from Matthew that the McLaens' project involved manipulating the ditch on the south side of 103rd Street such that the depth of the ditch would be deeper. This concerned Bosse because it "would cause a larger slope to the ditch and [could] possibly [be] harmful for a car, if a car would drive in it." Bosse was also concerned that the McLaens' proposal would change the natural flow of the water in the ditch and that there was not, in his view, a guarantee that the water would flow all the way to Wild Rice Creek. He explained that based on his experience it would hurt the roadbed to have water sitting in the right-of-way because when water sits next to a road, it could permeate through and cause the road to become soft. Chapin and Hawkinson testified in their depositions to having similar concerns.

[¶8.] The August 17 meeting minutes reflect that the supervisors passed a motion "to allow the drainage proposal" under six conditions, as follows:

1. A solid pipe would be used to run water from section 16 all the way to the Wild Rice Crick [sic] in section 23. The pipe would run on the south side of the road along 103rd St.
2. No manipulation will be done in any township right-of-way to allow surface drainage.
3. New easements/waivers will need to be obtained from landowners on the north side of section 22.
4. Due to past approval expiration several years ago, the entire drainage project needs to be reapproved by the Marshall county drainage board.
5. If any township roads are cut/dug to lay a pipe underground, Matt McLaen will be responsible for any and all repairs at the specific spot of the cut for the next 5 years.
6. We would strongly suggest Matt get approval from the Wild Rice Watershed board.

[¶9.] Bosse testified that a day or two after the August 17 meeting, he gave Matthew the meeting minutes when Matthew stopped by his office. Bosse further testified that a copy of the minutes was given to the Marshall County Drainage Board. He also claimed that he had two or three phone calls with Steven to discuss the project and the Township's conditions. According to Bosse, during these conversations, Steven did not agree with having to install a pipe in the right-of-way and threatened to file a lawsuit against the Township.

[¶10.] On September 21, 2019, the Township Board held a special meeting at which they passed a motion to hire an attorney to represent the Township in any legal actions brought by the McLaens. Similar to the August 17, 2019 meeting, the Township posted notice of this meeting 24 hours prior to it occurring by attaching a paper notice on the door of Bolt Marketing. The McLaens were unaware of the Township meeting. The minutes of the meeting reflect that the Township voted to hire Attorney Jay Leibel. The supervisors met again on September 23, 2019, and immediately went into executive session to discuss the lawsuit the McLaens were threatening to bring. The minutes reflect that the supervisors discussed their concerns about the McLaens' project but no official action was taken at that meeting.

[¶11.] Although the McLaens had a permit for the drainage project from Marshall County, they sought reapproval of that permit from the County, consistent with one of the conditions set by the Township. Their request was considered at the September 24, 2019 Marshall County Drainage Board meeting. The Township supervisors, Attorney Leibel, Steven and Matthew McLaen, and the McLaens' attorney attended this meeting. The meeting minutes reflect that the County Drainage Board considered a report by a County administrative official about the drainage project along with a letter from one of the McLaens' neighbors disapproving of the project. Neither the report nor the letter is in the record, and there is no transcript of the County Drainage Board meeting.

[¶12.] The meeting minutes reflect that during the meeting, counsel for both the Township and the McLaens spoke about the...

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