Harold Green v. Cleary Water, Sewer & Fire District
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2003-CA-01062-COA
HAROLD GREEN, ET AL., AND CITY OF
RICHLAND, MISSISSIPPI
APPELLANTS
v.
CLEARY WATER, SEWER & FIRE DISTRICT
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANTS:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLEE
4/17/2003
HON. JASON H. FLOYD, JR.
RANKIN COUNTY CHANCERY COURT
JAY MAX KILPATRICK
PAUL B. HENDERSON
DAVID RINGER
MICHAEL D. CAPLES
JAMES A. BOBO
CIVIL-OTHER
SUMMARY JUDGMENT GRANTED TO
CLEARY WATER, SEWER & FIRE DISTRICT
AFFIRMED: 8/03/2004
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 OnSite 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 OnSite 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 Onsite 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.
2
Whether the Cleary Water, Sewer & Fire District had the statutory authority to enact the
Ordinance.
STATEMENT OF FACTS
¶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
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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.
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¶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.
ISSUE AND ANALYSIS
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,
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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 195-173 1 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.
1
Miss. Code Ann. § 19-5-173 (Rev. 2003) Board of commissioners; power to enact
regulations. The board of commissioners shall have the power to make regulations to secure the
general health of those residing in the district; to prevent, remove and abate nuisances; to regulate or
prohibit the construction of privy-vaults and cesspools, and to regulate or suppress those already
constructed; and to compel and regulate the connection of all property with sewers.
2
Miss. Code Ann. § 41-67-3(1) (Rev. 2001) Duties and responsibilities. (1) The State
Board of Health shall have the following duties and responsibilities:
(a) To exercise general supervision over the design, construction, operation and maintenance of
individual on-site wastewater disposal systems with flows substantially equivalent to a single family
residential generator, except when the property owner or lessee chooses to employ a professional
engineer to comply with this chapter. To effectively administer this law, the department and the
Department of Environmental Quality shall enter into a memorandum of understanding, which at a
minimum shall clearly define the jurisdiction of each department with regard to wastewater disposal and
procedures for interdepartmental interaction and cooperation;
(b) To adopt, modify, repeal and promulgate rules and regulations, after due notice and hearing, and
where not otherwise prohibited by federal or state law, to make exceptions to, to grant exemptions
from and to enforce rules and regulations implementing or effectuating the duties of the board under this
chapter to protect the public health. The board may grant variances from rules and regulations adopted
under this chapter, including requirements for buffer zones, or from setbacks required under Section
41-67-7 where the granting of a variance shall not subject the public to unreasonable health risks or
jeopardize environmental resources;
(c) To provide or deny certification for persons engaging in the business of the design, construction or
installation of individual on-site wastewater disposal systems and persons engaging in the removal and
disposal of the sludge and liquid waste from those systems;
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¶14.
The City of Richland contends that pursuant to Mississippi Code Annotated Sections 41-67-1-31,
the Legislature vested sole authority over individual on-site wastewater disposal systems in the Mississippi
State Department of Health. Moreover, it contends the Legislature provided that only municipalities or a
board of supervisors could adopt legislation similar to that in the Mississippi On-Site Wastewater Disposal
System Law. See Miss. Code Ann. § 41-67-15 (Rev. 2001)3. The City contends, as Green, that the
Ordinance is preempted by the Mississippi Individual On-Site Wastewater Disposal System Law.
¶15.
The District contends that the Ordinance is not preempted by Mississippi Code Annotated Sections
41-67-1-31 and moreover the Ordinance was enacted pursuant to Mississippi Code Annotated Section
19-5-173. The District contends the Ordinance was adopted pursuant to Mississippi Code Annotated
Section 19-5-173, as a regulation to “secure the general health” of residents of the District. As the supplier
of potable water, the District contends that the health of those in the district was threatened by untreated
or under-treated waste water observed by District personnel on private properties with on-site waste water
treatment systems. The District contends that the Ordinance was enacted merely as a safety precaution to
prevent the discharge of untreated waste water into the surface and ground water supplied by the District,
thereby endangering the health and safety of its customers. The District also contends that the Ordinance
(d) To suspend or revoke certifications issued to persons engaging in the business of the design,
construction or installation of individual on-site wastewater disposal systems or persons engaging in the
removal and disposal of the sludge and liquid waste from those systems, when it is determined the
person has violated this chapter or applicable rules and regulations; and
(e) To require the submission of information deemed necessary by the department to determine the
suitability of individual lots for individual on-site wastewater disposal systems.
3
Miss. Code Ann. § 41-67-15 (Rev. 2001) Authority of municipalities and boards of
supervisors to adopt more restrictive ordinances not impaired. Nothing in this chapter shall limit
the authority of a municipality or board of supervisors to adopt similar ordinances which may be, in
whole or in part, more restrictive than this chapter, and in those cases the more restrictive ordinances
will govern.
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was adopted by the suggestion of the MDH, and that the MDEQ and MDH both approved of the
Ordinance. Finally, the District contends that the affidavit of Ralph R. Turnbo, Jr. the MDH Director of the
Division of Onsite Wastewater Management, states that the Ordinance does not conflict, or usurp, the
authority of the Mississippi State Department of Health.
¶16. The Mississippi Supreme Court has recognized that “[t]he police power confers upon the states and
local governmental units broad regulatory authority over public health, welfare, and morals.” Collins v. City
of Hazlehurst, 709 So. 2d 408, 412 (Miss. 1997); citing Davidson v. City of Clinton, Mississippi, 826
F.2d 1430, 1433 (5th Cir. 1987). In Collins, the Court upheld a city ordinance that was more restrictive
than the state statute pertaining to the sale of alcohol.
¶17.
The Mississippi Supreme Court has also said:
that any exercise of police power is valid if it has for its object the protection and
promotion of the public health, safety, morality or welfare, if it is reasonably related to the
attainment of that object, and if it is not oppressive, arbitrary or discriminatory. (citations
omitted) In other words, when governmental entities act pursuant to their police powers,
and in the absence of a binding agreement, they are free to conduct their affairs in a manner
consistent with their best interests provided their actions are reasonably related to the
attainment of those interests and are not arbitrary, oppressive or discriminatory.
Hollywood Cemetery Ass'n v. Board of Mayor and Selectman of City of McComb City, 760 So.
2d 715, 719 (¶ 13) (Miss. 2000) .
¶18.
As the District acted under the authority of its general police powers we find that the Ordinance
is a valid exercise of its authority. See Miss. Code Ann. § 19-5-173 (Rev. 2003). The Mississippi On-Site
Wastewater Disposal System Law, while not mentioning sewer districts, does not expressly prevent sewer
districts from regulating the use or maintenance of individual on-site wastewater disposal systems. See Miss.
Code Ann. §§ 41-67-1-31(Rev. 2001). Furthermore, Mississippi Code Annotated Sections 41-67-1-31,
( “Mississippi On-Site Wastewater Disposal System Law”) did not repeal Mississippi Code Annotated
8
Section 19-5-173 (which confers upon the board of commissioners power to regulate the general health
of those residing in the district) , and cannot be read as such. The District must be given the ability to
protect the potable water that it supplies to its customers through regulations protecting the health of these
customers.
¶19.
Finally, the Ordinance was adopted at the request of the Mississippi State Department of Health,
the agency given the authority under the Mississippi Individual On-Site Wastewater Disposal System Law
over wastewater disposal systems. See Miss. Code Ann. § 41-67-3 (1) (Rev. 2001). The Ordinance was
adopted with the express approval of the MDH and MDEQ, and as such we do not find that the District
usurped its authority under Mississippi Code Annotated Section 19-5-173.
¶20.
This Court has a well-established, and very familiar, standard of review of a trial court’s grant of
summary judgment:
This Court employs a de novo standard of review of a lower court's grant or denial of
summary judgment and examines all the evidentiary matters before it--admissions in
pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be
viewed in the light most favorable to the party against whom the motion has been made.
If, in this view, there is no genuine issue of material fact and, the moving party is entitled
to judgment as a matter of law, summary judgment should forthwith be entered in his favor.
Otherwise, the motion should be denied. Issues of fact sufficient to require denial of a
motion for summary judgment obviously are present where one party swears to one
version of the matter in issue and another says the opposite. In addition, the burden of
demonstrating that no genuine issue of fact exists is on the moving party. That is, the
non-movant should be given the benefit of the doubt.
Williamson ex rel. Williamson v. Keith, 786 So.2d 390, 393 (¶ 10) (Miss. 2001) (citations omitted).
¶21.
We find that there were no material disputed issues of fact, and that the District acted in accordance
with its police power pursuant to Mississippi Code Annotated Section 19-5-173. Accordingly, we do
not find that chancellor erred in granting summary judgment to the District.
9
¶22. THE JUDGMENT OF THE CHANCERY COURT OF RANKIN COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED TO THE APPELLANTS.
IRVING, MYERS, AND CHANDLER, JJ., CONCUR. GRIFFIS, J., DISSENTS
WITH SEPARATE WRITTEN OPINION JOINED BY LEE, J. BRIDGES AND
SOUTHWICK, P.JJ., NOT PARTICIPATING.
GRIFFIS, J., DISSENTING:
¶23.
I am of the opinion that the majority has incorrectly determined that the Cleary Water, Sewer &
Fire District had the statutory authority to regulate individual on-site wastewater disposal systems and that
the Mississippi Individual On-Site Wastewater Disposal Law does not preempt the regulation of individual
on-site wastewater disposal systems. Therefore, I respectfully dissent.
¶24.
In Lepre v. D'Iberville Water and Sewer Dist., 376 So.2d 191, 194 (Miss. 1979), the
Mississippi Supreme Court held that a water/sewer district may only exercise such powers as are expressly
delegated to it by the legislature.
¶25.
The appellants argue that the District's authority is derived from Mississippi Code Annotated §§
19-5-151- 257 (Rev. 2003) and is limited by the following statement of the District’s general powers:
Districts . . . shall have the powers enumerated in the resolution of the board of supervisors
creating such districts but shall be limited to the conducting and operating of a water
supply system, a sewer system, . . . or a combined water and sewer system, . . . and
to carry out such purpose or purposes, such districts shall have the power and authority
to acquire, construct, reconstruct, improve, better, extend, consolidate, maintain, and
operate such system or systems. . . .
Miss. Code Ann. § 19-5-175 (Rev. 2003) (emphasis added). The District argues that its authority is much
broader and that its authority to enact the ordinance comes from Mississippi Code Annotated § 19-5-173
(Rev. 2003), which provides:
The board of commissioners shall have the power to make regulations to secure the
general health of those residing in the district; to prevent, remove and abate nuisances; to
10
regulate or prohibit the construction of privy-vaults and cesspools, and to regulate or
suppress those already constructed; and to compel and regulate the connection of all
property with sewers.
¶26.
Mississippi Code Annotated Section 19-5-175 (Rev. 2003) expressly limits the District’s authority
to “sewer systems.” Mississippi Code Annotated Section 49-17-5(c) (Rev. 2003) sets forth a definition
of a “sewerage system” to mean “pipelines or conduits, pumping stations, and force mains, and other
structures, devices, appurtenances and facilities used for collecting or conducting wastes to an ultimate point
for treatment or disposal.” I can find no definition, either statutory or otherwise, that would suggest that
a sewer system includes individual on-site wastewater disposal systems or septic tanks.
¶27.
Clearly, the legislature recognized a difference between sewer systems and septic tanks by enacting
the Mississippi Individual On-Site Wastewater Disposal System Law. Miss. Code Ann. §§ 41-67-1 et
seq. (Rev. 2001). The Mississippi Individual On-Site Wastewater Disposal System Law provides for a
comprehensive statutory scheme for regulating septic tanks. Miss. Code Ann. § 41-67-3(1) (Rev. 2001).
The legislature specifically granted the power to promulgate rules and regulations regarding septic tanks to
the Mississippi State Board of Health. Miss. Code Ann. §§ 41-67-3(1)(b) and 41-67-3(4) (Rev. 2001).
¶28.
The majority rejects the statutory limitations on the District’s powers, as established in Mississippi
Code Annotated Section 19-5-175 (Rev. 2003), and bases its decision on the general police powers of
Mississippi Code Annotated Section 19-5-173 (Rev. 2003). Section 19-5-173 grants regulatory power
to the District to: (1) make regulations to secure the general health of residents in a district; (2) prevent,
remove and abate nuisances; (3) regulate or prohibit construction of privy-vaults and cesspools; (4)
regulate or suppress privy-vaults or cesspools already constructed; and (5) compel and regulate the
connection of all property with sewers. The District’s ordinance does not relates to any type of nuisance
and it does not attempt to connect all property with sewers. Privy-vaults and cesspools refer to outhouses
11
and other structures that retain sewage but provide little or no treatment before releasing the sewage to
the surrounding area. Thus, the majority determines that the ordinance was enacted to secure the general
health of residents.
¶29.
The Mississippi Individual On-Site Wastewater Disposal System Law ensures that individual on-
site wastewater disposal systems (septic tanks) are properly designed, constructed, operated and
maintained. Miss. Code Ann. § 41-67-3(1)(a) (Rev. 2003). The legislature granted the State Board of
Health with primary responsibility over septic tanks and specifically authorized the Mississippi Department
of Environmental Quality to assist in the administration of the State Board of Health’s responsibilities and
clearly defined each department’s role and responsibilities in overseeing the use of septic tanks. Id. Thus,
by statutory enactment, the State Board of Health and the Mississippi Department of Environmental Quality
have the responsibility to ensure that septic tanks do not adversely affect the general health of residents.
Id.
¶30.
In Mississippi Code Annotated Section 41-67-15 (Rev. 2003), the legislature determined that
“nothing in this chapter [the Mississippi Individual On-Site Wastewater Disposal System Law] shall limit
the authority of a municipality or board of supervisors to adopt similar ordinances which may be, in whole
or in part, more restrictive than this chapter, and in those cases the more restrictive ordinances will govern.”
The District is neither a municipality nor a board of supervisors. Accordingly, the Mississippi Individual
On-Site Wastewater Disposal System Law preempts the regulation of individual on-site wastewater
disposal systems, or septic tanks, by the District. As such, the District had no authority to promulgate rules
and regulations regarding septic tanks.
¶31.
In conclusion, the individual appellants are not served by the District’s centralized sewer system.
As a result, they are required to install an individual septic tank pursuant to the rules and regulations of the
12
State Board of Health. If the District were to install a centralized sewer system to everyone within its
boundaries, then the District would have the statutory authority to require that every resident be connected
to the District’s system. Through the enactment of this ordinance, I find that the District has acted beyond
its jurisdictional bounds and has no authority to regulate individual on-site wastewater disposal systems,
and the chancellor erred as a matter of law in granting the summary judgment in favor of the District.
LEE, J., JOINS THIS SEPARATE OPINION.
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