Asper v. Nelson , 2017 S.D. LEXIS 61 ( 2017 )

#28006-a-LSW
2017 S.D. 29IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
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TIMOTHY ASPER and
GALAZIN FAMILY, LLC, Petitioners and Appellants,
v.
BRADLEY NELSON, ROBERT
SICHMELLER and RAY LARDY,
as supervisors for Raritan Township
and RARITAN TOWNSHIP,
DAY COUNTY, SOUTH DAKOTA, Respondents and Appellees.
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APPEAL FROM THE CIRCUIT COURT OF
THE FIFTH JUDICIAL CIRCUIT
DAY COUNTY, SOUTH DAKOTA
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THE HONORABLE JON S. FLEMMER
Judge
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DAVID A. GEYER of
Delaney, Nielsen & Sannes, PC
Webster, South Dakota Attorneys for petitioners
and appellants.
JAY M. LEIBEL
Madison, South Dakota Attorney for respondents
and appellees.
****
CONSIDERED ON BRIEFS
APRIL 24, 2017
OPINION FILED 05/24/17
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WILBUR, Justice
[¶1.] Two township residents petitioned the circuit court to issue a writ of
mandamus compelling the township to repair and maintain two secondary roads.
After two hearings, the circuit court denied the request to issue a writ because the
court concluded that the township proved that it was unable to perform its
mandatory duty to repair and maintain the two secondary roads. The residents
appeal. We affirm.
Background
[¶2.] On November 19, 2015, Timothy Asper and Galazin Family, LLC
petitioned the circuit court to issue a writ of mandamus ordering Raritan Township
in Day County, South Dakota, to either repair and maintain 132nd Street and 431st
Avenue and make the roads passable or show cause why it should not be done.
SDCL 31-13-1 imposes a duty on the Raritan Township Board to repair and
maintain 132nd Street and 431st Avenue, which are secondary roads within the
Township. The roads had provided Asper and Galazin Family access to their real
property located within the Township. In their affidavits supporting their petition
for a writ of mandamus, Asper and Galazin Family alleged that they had repeatedly
requested that the Township repair and maintain the roads, but the Township had
refused to do so for the last four years.
[¶3.] On December 22, 2015, the circuit court issued an alternative writ of
mandamus. The court ordered the Township and the Township board members to
repair and maintain 132nd Street and 431st Avenue or show cause why the writ
should not be made permanent. The court held a hearing in February 2016.
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During the hearing, the court heard evidence from Asper and the Township. Asper
testified that he owns approximately 97 acres on which his home resides. He
purchased the property in 2008 and had access to the property via 132nd Street and
431st Avenue. Galazin Family owns approximately 280 acres of farmland in the
same vicinity and had access to the property via 132nd Street and 431st Avenue.
Both 132nd Street and 431st Avenue are improved section-line roads and portions
of both roads border a lake. In the spring 2011, the water level of the bordering
lake flooded and made impassable portions of both 132nd Street and 431st Avenue.
Asper testified that to access his home, he must now cross private pasture land,
State land, private farmland, and private crop land. Galazin Family must also
cross private land to get to its property.
[¶4.] The Township, via testimony from the township clerk, identified that
its yearly budget for road maintenance was approximately $25,000, and in 2015, the
Township had approximately $9,000 remaining. The clerk also testified that no
maintenance had been done on 132nd Street or 431st Avenue since 2010. Township
Board Supervisor Brad Nelson had been a township supervisor for the past nine
years. He testified that the Township received $23,470 in 2015, which included
$12,897 in real estate taxes. Nelson explained that although the Township had
approximately $56,000 in a money market account, that money had been given to
the Township by FEMA and was allocated to other roads not including 132nd Street
or 431st Avenue. Nelson asserted that the Township, with assistance of various
governmental entities, had spent approximately $256,000 from 1995 to 2010 to
repair and keep the roads passable in light of the ever-increasing water levels of the
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bordering lake. Nelson claimed that after those initial repairs the Township never
discussed doing a special levy to fund subsequent repair and maintenance of the
roads.
[¶5.] At the conclusion of the hearing, the circuit court held that the
Township had a mandatory duty to repair 132nd Street and 431st Avenue. The
court, however, found that “[h]ere, it isn’t a matter of the township neglecting the
road, it’s a matter of whether or not the township has the ability to correct the
problem.” The court concluded that it could not decide that question until the
Township obtained a recent estimate for the cost of repair. The court issued
“mandamus for the sole purpose” of “directing the [T]ownship to obtain a written
estimate to raise the road so that that amount can then be reviewed by the
[T]ownship and a determination made at [its] discretion whether [it is] able to
generate the funds necessary to complete that - - that estimate.” It directed that
the matter would remain open and that Asper and Galazin Family could request
further review by the court. The court issued findings of fact and conclusions of
law.
[¶6.] In a subsequent hearing on August 26, 2016, the parties offered
competing estimates to the circuit court. Asper presented an estimate from Hofland
Engineering, which was the same engineering company that had raised the road in
prior years. According to Hofland Engineering’s estimate, the cost to repair the
roads would be $473,000 with possible additional expenses in the future. Asper
testified that he and Galazin Family would contribute $25,000 to assist the
Township in building up the roads.
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[¶7.] The Township, through testimony by current Township Board
Chairman Robert Sichmeller, testified that the Township received estimates from
Webster Scale, Inc. for $1,380,500 and Foothill Contracting for $1,178,560.
Sichmeller also testified that the Board held a special meeting in March 2016 to
decide whether the Township could build a road for Asper and Galazin Family. The
Board concluded, based on the estimates it had received, that the Township could
not repair the roads. On cross-examination, Sichmeller agreed that the Board had
not conducted a special tax assessment to fund the repair of the roads and that the
Board had never taken a vote to get a bond to improve the roads. He, however,
claimed that the Board’s attempt to obtain additional funding from the Township’s
residents would not be “favorable.”
[¶8.] The court issued an oral ruling at the conclusion of the hearing. The
court referred to the parties’ estimates and acknowledged that Asper and Galazin
Family agreed to pay $25,000. The court also recognized that it could order the
Township to go through the steps of attempting to obtain the necessary funding.
But, according to the court, “that would seem to be a further expenditure of
resources on the part of all parties that isn’t going to be able to accomplish” Asper
and Galazin Family’s goal. The court held that the Township established that it
was not possible for the Township to fund the repair and maintenance of 132nd
Street and 431st Avenue as identified in the estimates—including the estimate from
Hofland Engineering for $473,000. The court issued findings of fact and conclusions
of law and an order denying the alternate writ of mandamus, amended alternate
writ of mandamus, and Asper and Galazin Family’s motion for further review.
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[¶9.] Asper and Galazin appeal, asserting that the circuit court abused its
discretion when it denied the issuance of a writ of mandamus.
Analysis
[¶10.] Asper and Galazin Family argue that the Township failed to prove that
mandamus would be unavailing because the Township has yet to attempt
everything possible to raise the funds necessary to perform its mandatory duty to
repair and maintain 132nd Street and 431st Avenue. Asper and Galazin Family
emphasize that they have a clear legal right to have the roads repaired and
maintained and that they have no legal remedy other than mandamus. So, in their
view, until the Township exhausts all potential funding resources, such as the
issuance of a bond under SDCL chapter 8-11, the circuit court did not have
discretion to deny the writ of mandamus.
[¶11.] “Circuit courts possess discretion in deciding whether to grant a writ of
mandamus; thus, the appropriate standard of review on appeal is abuse of
discretion.” Willoughby v. Grim, 1998 S.D. 68, ¶ 6, 581 N.W.2d 165, 167. “The
granting of a writ of mandamus is not a matter of absolute right, but is vested in
the sound discretion of the court; and, where there is reason to doubt the necessity
or propriety of issuing it, it should be refused.” Anderson v. City of Sioux Falls,
384 N.W.2d 666, 668 (S.D. 1986). It is also “the generally accepted rule that there
may be considerations of justice which will justify a refusal of the writ, although
there may be no other appropriate and adequate remedy.” City of Sioux Falls v.
Sioux Falls Traction Sys., 53 S.D. 471, 221 N.W. 84, 85 (1928). For example, “[i]n
some instances, difficulties in enforcement of mandamus may call for denial of
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relief.” Willoughby, 1998 S.D. 68, ¶ 12, 581 N.W.2d at 169. Likewise, “[m]andamus
will not be granted when it would be unavailing.” Id. (quoting State v. Hahn,
69 S.D. 275, 278, 9 N.W.2d 502, 503 (1943)).
[¶12.] The Township has an affirmative duty to repair and maintain 132nd
Street and 431st Avenue, and Asper and Galazin Family have a clear legal right to
the performance of the Township’s duty. The circuit court recognized as much. But
the court also held that the Township proved that it was unable to perform its legal
duty because it would be unable to procure the funds necessary to repair and
maintain the roads. From our review, the court did not abuse its discretion.
[¶13.] This is not a case of a lack of immediate funds or a mere financial
hardship. The Township offered testimony that it receives approximately $13,000 a
year in real estate taxes, and it operates on an annual budget for road maintenance
at approximately $25,000. The lowest estimate to repair the roads was $473,000,
and that estimate indicated that additional repairs in the future may be necessary.
[¶14.] Yes, the Township is statutorily authorized to sell bonds upon approval
“by a two-thirds vote of the registered voters present and voting at any annual
township meeting or special township meeting called for that purpose.” SDCL
8-11-3. But the Township would have to raise approximately 19 times its annual
budget to cover the lowest estimate to repair the roads, a number which does not
include the costs associated with calling for an election to raise money by selling
bonds. And in order to repay the bonds, the Township must levy a tax to be used
specifically for the repayment of the bonds. SDCL 8-11-7. We also note that neither
the parties nor the court addressed any constitutional or statutory limits on the
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Township’s ability to incur debt or the viability of issuing and selling bonds. See
S.D. Const. art. XIII, § 4; SDCL ch. 31-13. Similarly, the evidence supports the
court’s view that a special assessment would obligate the subject property for
potentially more than the property’s value.
[¶15.] Nonetheless, Asper and Galazin Family argue that the Township must
“prove that it was impossible to get the funding to repair the roads.” (Emphasis
added.) They also claim that any difficulty in obtaining funds is immaterial because
“[e]quitable defenses have no bearing in this matter.” On the contrary, “the right to
a writ of mandamus may turn on equitable considerations[.]” United States v.
Helvering, 301 U.S. 540, 543, 57 S. Ct. 855, 857, 81 L. Ed. 1272 (1937). We also
note that the court could not order the Township to use or exhaust particular
methods, including special assessment or bond, to attempt to obtain the funds. The
Township has discretion in how it carries out its duty to repair and maintain its
roads. See Willoughby, 1998 S.D. 68, ¶ 11, 581 N.W.2d at 169 (“Orders compelling
the exercise of this discretion are ill-suited to mandamus relief.”). Because the
Township proved that it “has not willfully placed itself in a position where it cannot
perform its legal duty, and it appears that it is unable to do so,” the circuit court did
not abuse its discretion when it denied the writ. See Sioux Falls Traction Sys.,
53 S.D. 471, 221 N.W. at 86.
[¶16.] Affirmed.
[¶17.] GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and KERN,
Justices, concur.
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