Green, et al. v. Cleary Water, Sewer & Fire Dist.
| Docket Number: | 2003-CT-01062-SCT Linked Case(s): 2003-CA-01062-COA ; 2003-CT-01062-SCT ; 2003-CT-01062-SCT ; 2003-CA-01062-COA |
|
| Supreme Court: | Opinion Link Opinion Date: 06-23-2005 Opinion Author: Graves, J. Holding: Reversed and Remanded |
|
| Additional Case Information: |
Topic: Regulation of disposal of wastewater - Water, sewer and fire district - Authority to enact ordinance - Section 41-67-3(1) - Section 41-67-11(2) - Section 41-67-15 - Section 19-5-173 - Section 19-5-175 - Department of Health regulations - Affidavits - Taking of private property Judge(s) Concurring: Waller and Cobb, P.JJ., Easley, Carlson, Dickinson and Randolph, JJ. Non Participating Judge(s): Smith, C.J., and Diaz, J. Procedural History: Summary Judgment Nature of the Case: CIVIL - OTHER Writ of Certiorari: Granted Appealed from Court of Appeals |
|
| Trial Court: |
Date of Trial Judgment: 04-17-2003 Appealed from: Rankin County Chancery Court Judge: Jason H. Floyd, Jr. Disposition: Court of Appeals affirmed trial court's grant of summary judgment in favor of Cleary. Case Number: 52041 |
|
| Note: | Nature of Case - Seeking declaration that city ordinance is invalid. the SCT reverses a prior judgment by the COA | |
| Party Name: | Attorney Name: | |||
| Appellant: | Harold Green, et al., and City of Richland, Mississippi |
DAVID RINGER, PAUL B. HENDERSON, JAY MAX KILPATRICK |
||
| Appellee: | Cleary Water, Sewer & Fire District | JAMES A. BOBO |
|
|
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
|
| Topic: | Regulation of disposal of wastewater - Water, sewer and fire district - Authority to enact ordinance - Section 41-67-3(1) - Section 41-67-11(2) - Section 41-67-15 - Section 19-5-173 - Section 19-5-175 - Department of Health regulations - Affidavits - Taking of private property |
| Summary of the Facts: | The Cleary Water, Sewer & Fire District adopted and implemented a “Decentralized Wastewater Use 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. The chancellor granted Cleary summary judgment. A divided Court of Appeals affirmed the chancellor’s decision. The Supreme Court granted certiorari. |
| Summary of Opinion Analysis: | Issue 1: Authority to enact ordinance 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 sections §§ 41-67-1 et seq., plaintiffs argue that Cleary is without authority to regulate individual septic systems to control water quality within the district it governs. While section 41-67-3(1) gives the Mississippi State Board of Health a general grant of power, there is no language giving the Board “exclusive” authority in this area, as plaintiffs contend. Water and/or sewer districts were given the authority to maintain “sewage holding tanks” with the Board of Health’s approval under section 41-67-11(2), yet omitted from section 41-67-15, which gave municipalities and boards of supervisors authority to enact ordinances that were more restrictive than those enacted by the Board of Health. Despite this omission, the statutory scheme of sections 41-67-1 et seq. does not prohibit water and/or sewer districts from regulating individual on-site wastewater systems. Though section 41-67-15 makes no mention of utility districts, it does not forbid Cleary from adopting the subject ordinance. In addition to the authority granted to water and/or sewer districts under section 19-5-173, section 19-5-175 grants Cleary “all the powers necessary and requisite for the accomplishment of the purpose for which such district is created” and states that none of Cleary’s enumerated powers “shall be construed to impair or limit any general grant of power.” Any ordinance Cleary enacts, which attempts to regulate individual wastewater disposal systems, must comply with the rules and regulations adopted by the Board of Health. While Cleary does have authority to adopt rules similar to those in its “Decentralized Wastewater Use Ordinance,” the rules and regulations adopted by the Department of Health must take precedence over any conflicting provisions in the Cleary Ordinance. Issue 2: Affidavits The plaintiffs argue that the court improperly considered affidavits which were not delivered to opposite counsel until the day of the hearing, and relied on the affidavits of state agency employees as being conclusive of the Department of Health’s position that the Cleary Ordinance did not conflict with its rules and regulations. Cleary has defended the charges brought by plaintiffs by not only stating that it has the authority to enact its ordinance but that such ordinance was adopted with approval of both the MDEQ and the Department of Health. These contentions are supported by various affidavits. Kenn Munn, who served as manager of the Cleary Water, Sewer and Fire District and was also the secretary on its Board of Commissioners, stated that the Department of Health recommended that Cleary adopt its ordinance, that he worked closely with both the Department of Health and the MDEQ in drafting the ordinance, and that the ordinance was adopted after receiving “review and comment” from both the Department of Health and the MDEQ. Cleary also introduced the affidavit of a professional engineer stated that it was his expert opinion that the Cleary Ordinance was an appropriate measure to protect the health of the residents who lived within the Cleary District. It is apparent that neither of these individuals has authority to speak for the Department of Health as to whether Cleary’s Ordinance conflicts with any departmental rules or regulations. However, Cleary also introduced the affidavit of the director of the Department of Health’s Onsite Wastewater division who stated in his affidavit that the Department of Health did recommend that Cleary adopt an ordinance and policy regarding on-site wastewater systems and that Cleary’s ordinance did not unlawfully encroach upon the authority of the Mississippi State Department of Health. While the chancellor did not err in considering any of the affidavits before him, he did err in granting summary judgment, as there is a genuine issue of material fact as to whether the ordinance enacted by the Cleary District conflicts with rules and regulations adopted by the Department of Health. Issue 3: Taking of private property Plaintiffs argue that enforcement of Cleary’s Ordinance would be an unconstitutional taking of private property under both the federal and state constitutions. Cleary states that the “Policy and Procedures” document it sent to customers was repealed prior to submission of the parties’ cross-motions for summary judgment. However, there is no record indicating whether these challenged policies were in fact repealed, as Cleary contends, or are still in force. Further, the lack of a developed record from the trial court prevents the Court from determining whether the chancellor even considered plaintiffs’ takings claim in rendering his judgment. Therefore, summary judgment is inappropriate. |
Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court
