author:
GILBERTSON, Chief Justice.
      SABERS, Justice

text:
    2004 SD 72
    Douglas J. BLOCK and Elaine M. Block, Plaintiffs and Appellees, v. Merlyn W. DRAKE and Bonnie L. Drake, Defendants and Appellants.
    No. 23013.
    Supreme Court of South Dakota.
    Considered on Briefs April 26, 2004.
    Decided May 26, 2004.

      Jack Hiéb of Richardson, Wyly, Wise, Sauek & Hieb, L.L.P., Aberdeen, South Dakota, Attorneys for plaintiffs and appel-lees.
    William E. Coester, Milbank, South Dakota, Attorneys for defendants and appellants.
   GILBERTSON, Chief Justice.

[¶ 1.] Merlyn Drake and Bonnie Drake (Drakes) appeal from various rulings of the circuit court concerning an -on-going real estate dispute with Douglas J. Block and Elaine M. Block (Blocks). For the reasons expressed herein, we affirm the judgment of the circuit court in part and remand in part.

FACTS AND PROCEDURE

[¶ 2.] This appeal revolves around a dispute between two neighbors owning property located near Enemy Swim Lake in Day County, South Dakota. At one point, Leo and Rose Fleischhaker (Fleisch-hakers) owned all the land at the héart of this dispute. In 1996, Fleischhakers sold a portion of their property known as Government Lot 7 (Lot 7) to the Blocks. Most of the Fleischhaker property directly abutting Enemy Swim Lake had been previously platted and sold to third parties. Drakes subsequently bought the remaining Fleischhaker property'leaving them with land to the north, east and south of Lot 7. Both Blocks and Drakes also owned a lot which adjoined the lake.

[¶ 3.] After purchasing Lot 7, the Blocks made improvements to several already existing pasture trails ■ on the property. Previously, Fleischhakers’ had platted and recorded an easement across the property which allowed access to the lake lots. This easement has at all times remained private, and it has never been dedicated as a public road. In 1996, the Blocks wanted to improve the platted easement so they could obtain year-round access to their lake property. As a result of the topography, however, the path used by the lot owners did not correspond to the location of the easement on the plat.

[¶ 4.] The Blocks sought permission from the Drakes to improve a portion of the private road which ran across the Drakes’ land in. a northerly direction to Lot 7. Based on their assertion that any road improvement should be a cooperative project involving all the lot owners, the Drakes refused to grant permission to the Blocks. In response, the Blocks filed an action against the Drakes seeking court permission to build the access road outside of the recorded easement on the plat. A trial to the court was held in June of 1998. At the end of the case, the Blocks and Drakes entered into a stipulation agreement which formed the basis for the circuit court’s judgment. Neither party appealed this judgment. Pursuant to the judgment, Drakes improved the road easements designated as Tracts “B” and “D” in 1998.

[¶ 5.] In the summer of 2002, the Sisse-ton-Wahpeton Sioux Tribe hired a registered land surveyor to ascertain the exact boundary of land it owned adjoining the property now in dispute. The surveyor determined that the location of the improved road easement on Tract “D” was actually on tribal land and not the Drake’s land as the parties previously believed.

[¶ 6.] Eventually, a second dispute arose over access to Enemy Swim Lake on land owned by the Drakes north of Lot 7. The 1998 judgment had made reference to such access. After the 1998 judgment, the Drakes’ platted and sold land which had traditionally provided this access to the lake. The Drakes’ then constructed a new access path or road. However, they put a gate at the south end of this property and locked it thereby preventing the public from accessing the newly constructed access path by vehicle. The exact location of' the gate cannot be ascertained from the record.

[¶ 7.] In 2003, the Blocks sought to reopen the 1998 judgment by filing a pleading entitled “Motion to Hold Defendants in Contempt or for Alternative Relief’ which requested:

1. The Drakes be held in contempt of court for failing to file an easement depicted as various tracts on the 1998 Judgment, and for failing to construct a road on their land depicted as Tract “D”;
2. The Drakes grant an easement which allowed access to the south bank of Enemy Swim Lake for the purposes of ensuring the public would have unfettered access to that area.

The trial court generally ruled in favor of the Blocks but did not hold the Drakes in contempt. The court’s order, however, made it clear that if the Drakes do not comply with its 2003 order, they will be held in contempt. The Drakes now appeal and raise three issues for our review:

1. Whether the trial court had jurisdiction to re-open the 1998 judgment.
2. Whether the trial court erred in ordering the relocation of the roadway designated as Tract “D”.
3. Whether the trial court erred by requiring the Drakes to provide a public easement to Enemy Swim Lake and to unlock a gate currently blocking such public access by vehicle.

STANDARD OF REVIEW

[¶ 8.] We review the trial court’s findings of fact under the clearly erroneous standard. City of Deadwood v. Summit, Inc., 2000 SD 29, ¶ 9, 607 N.W.2d 22, 25. “Clear error is shown only when, after a review of all the evidence, ‘we are left with a definite and firm conviction that a mistake has been made.’ ” New Era Mining Co. v. Dakota Placers, Inc., 1999 SD 153, ¶ 7, 603 N.W.2d 202, 204 (citation omitted). This Court reviews conclusions of law under the de novo standard with no deference afforded the trial court’s decision. Summit, Inc., 2000 SD 29, ¶ 9, 607 N.W.2d at 25. Statutory interpretation and application are questions of law. Steinberg v. State Dept. of Military Affairs, 2000 SD 36, ¶ 6, 607 N.W.2d 596, 599.

[¶ 9.] A trial court’s decision to reopen a judgment pursuant to SDCL 15-6 — 60(b) will not be reversed absent an abuse of discretion. Pesicka v. Pesicka, 2000 SD 137, ¶ 18, 618 N.W.2d 725, 728.

ANALYSIS AND DECISION

[¶ 10.] 1. Whether the trial court had jurisdiction to re-open the 1998 judgment.

[¶ 11.] Drakes argue that since the 1998 judgment was final and never appealed by the Blocks, the trial court was without jurisdiction to reopen the case in 2003. SDCL 15-6-60(b) controls this issue and provides in relevant part:

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a- final judgment, order, or proceeding for the following reasons:
(1) Mistake, inadvertence, surprise, or excusable neglect;
(2) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under § 15 — 6—59(b);
(3) Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;
(4) The judgment is void;
(5) The judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or
(6) Any other reason justifying relief from the operation of the judgment.

(emphasis added). The Drakes correctly point out that the first five criteria under this rule for re-opening do not apply here. Subsection (6) which allows a case to be reopened for “any other reason justifying relief from the operation of the judgment” does apply, however. In response, the Drakes claim five years is not a “reasonable time.” We disagree.

[¶ 12.] All parties to the 1998 litigation assumed the improved easement on Tract “D” was in compliance with that judgment until the 2002 survey by the Sisseton-Wahpeton Sioux Tribe. Furthermore, the dispute over the lake access did not exist until 2001 when the Drakes sold that portion of land which had previously provided the access contemplated by the 1998 judgment. Upon discovery of the survey problem, the Blocks promptly, moved for a reopening of the ease.

[¶ 13.] “The- purpose of Rule 60(b) is to preserve the delicate balance between the sanctity of final judgments and the incessant command of a court’s conscience that justice be done in light of all the facts.” Pesicka, 2000 SD 137, ¶ 17, 618 N.W.2d at 728 (citing Hrachovec v. Kaarup, 516 N.W.2d 309, 311 (S.D.1994)). We have held that “[r]elief under SDCL 15-6-60(b) is granted only upon a showing of exceptional circumstances.” Divich v. Divich, 2002 SD 24, ¶ 8, 640 N.W.2d 758, 760 (citing Pesicka, 2000 SD 137, ¶¶ 17-18, 618 N.W.2d 725, 728). We recognize, however, the “broad language [of 60(b)(6)] gives the courts ample power to vacate judgments whenever such action is appropriate to accomplish justice.” Zundel v. Zundel, 146 N.W.2d 896, 901 (N.D.1966) (quoting 3 Barron & Holtzoff, Federal Practice and Procedure § 1329 at 417)). We will uphold a trial court’s decision to exercise this power absent a showing of an abuse of discretion. Pesicka, 2000 SD 137, ¶ 18, 618 N.W.2d at 728. By 2002, the factual circumstances surrounding both Tract “D” providing access to the lake lots and the access path to the lake had changed. While the trial court was careful not to place blame on the Drakes for the erroneous placement of the path on Tract “D” which had been used for the previous 80 years in one form or another, the current factual situation rendered the Drakes in non-compliance with the 1998 judgment. The selling of the Enemy Swim access and the Drake’s act of locking the gate for the new access path were also not addressed in the 1998 order. Thus, in order to enforce its 1998 judgment in light of the new factual developments, the trial court did not abuse its discretion in allowing a reopening of this case in 2002. Id.

[¶ 14.] 2. Whether the trial court erred in ordering the relocation of the roadway designated as Tract “D”.

[¶ 15.] The 1998 judgment clearly required the Drakes to improve the easement on Tract “D” at their own expense by the end of 1998. Both the parties believed the Drakes had fully complied with the judgment. Nevertheless, as explained above, the tribal survey determined the actual location of the improvement was on tribal land, essentially establishing the Drake’s non-compliance with the 1998 judgment.

[¶ 16.] Drakes argue that since the path has been in its current location for decades and the Sisseton-Wahpeton Sioux Tribe has made no move to cut it off, they should not be required to build what amounts to a parallel road eighty feet to the east of the path they have already improved. The 1998 judgment required them to build such a road on their own land and this has not been done. Moreover, the Blocks have agreed that nothing need be done until such time as the current access is cut, if ever. The 2003 order states that a new road would be constructed only if “the tribe or its successors or assigns terminate or substantially hinder access via the road that was built by the [Drakes].” The 2003 judgment additionally states that should the Drakes and Blocks agree that construction of a new road is necessary, the cost will be born equally by the two parties. As the new road, if ever constructed, may extend northward into Lot 7 owned by the Blocks, both parties are directed to provide easements for its establishment.

[¶ 17.] The trial court’s most recent order requires the Drakes to do nothing at present. It is only if current access is cut off that the court’s order concerning construction of a new road to conform to the 1998 judgment will be required. We affirm on this issue.

[¶ 18.] 3. Whether the trial court erred by requiring the Drakes to provide a public easement to Enemy Swim Lake and to unlock a gate currently blocking such public access by vehicle.

[¶ 19.] Drakes take the position that no member of the public may access the lake without their permission. Blocks on the other hand argue that the public as well as the lot owners have unlimited lake access by the easement. Neither position concerning public access is supported by the current state of the record. For the reasons set forth, we remand to the circuit court for further proceedings on this matter. In so doing, we offer the following guidance.

[¶ 20.] In its 2003 decision, the trial court held one of the express provisions of the 1998 judgment was that the parties provide access to the south bank of Enemy Swim Lake so the public could access the same for hunting and fishing purposes. Additionally, it held the Drakes (and Blocks) were to grant easements across their properties so that all the lot owners would have access to their property. Finally, the trial court held that the Drakes’ actions of padlocking the gate at the south entrance to this access easement “[were] not consistent with the Court’s prior Judgment in this case.”

[¶ 21.] As previously noted, the 1998 judgment was the result of a stipulation between the Drakes and Blocks. The relevant part of the judgment read as follows:

That Doug and Elaine Block agree to grant a 60-foob-wide easement across the existing improved roadway lying on their land and depicted with dashed lines on Exhibit A for ingress and egress to Lots A through U and Government Lot 6 and that portion of Government Lot 4 that lies to the south of the south bank'of Enemy swim creek inlet. Such easement is granted exclusively for said property owners and expressly excludes any access right to that portion of Government Lot 5 that lies north of the Enemy Swim creed inlet. This easement will be perpetual and run with the land. In addition, Doug and Elaine Block agree to grant an easement across their land along the same route as the easement described previously in this paragraph which easement shall be to the public for the sole purpose of allowing the public to access the south bank of the Enemy Swim creek inlet to use this area for hunting and fishing.

(emphasis added). In the next paragraph of the judgment, the Drakes agreed to grant an easement which would “connect the roadway on the south end of the plat to the roadway depicted with dashed lines on Exhibit A and to extend the roadway to all properly lying to the south bank of the Enemy Swim creek inlet at the north end of the plat.” In its 2003 “findings” contained in the Order, the trial court held:

The Court finds that one of the express provisions of the previous Judgment entered in this case was that the parties provide access to the south bank of the Enemy Swim Creek inlet so the public could access the same for hunting and fishing purposes.

[¶ 22.] According to SDCL 43-13-5, “[t]he extent of servitude is determined' by the terms of the grant, or the nature of the enjoyment by which it was acquired.” Under this statute, neither the physical size nor the purpose or use of the easement may be expanded or enlarged beyond the terms granting the easement in the court’s 1998 judgment. Knight v. Madison, 2001 SD 120, ¶ 6, 634 N.W.2d 540, 542 (citing Townsend v. Yankton Super 8 Motel, 371 N.W.2d 162, 165-66 (S.D.1985)); see Kokesh v. Running, 2002 SD 126, ¶ 12, 652 N.W.2d 790, 793. “Unless the owner of the servient estate expressly agrees otherwise, the owner reserves the right to use the property in any manner or for any purpose, so long as the owner does not interfere with the use or enjoyment of the easement.” Knight, 2001 SD 120, ¶ 7, 634 N.W.2d at 543.

[¶ 23.] Although there is some reference to a public’s right of use to the easement, it is clear that it remains a private easement and was never dedicated to the public use. See generally Selway Homeowners Assoc. v. Cummings, 2003 SD 11, ¶ 21, 657 N.W.2d 307, 313-14 (defining “dedication” as “devotion of property to public use” and recognizing “the intention of the owner to dedicate” and public acceptance thereof as the essential elements of a valid dedication). Thus, the Drakes retained all rights to their realty not expressly granted or given away in the stipulation and accompanying judgment. On appeal, the Drakes argue that allowing unlimited public use was never their intent, and they point out such an interpretation renders the grant to the lot owners in the previous sentence redundant as they are part of the public in addition to being lot owners.

[¶ 24.] Unfortunately, the drafting of this disputed language is not without substantial vagueness. It is clear, however, that the specific grant to the lot owners gave them access to their lots. From the record we are also unable to ascertain the exact location of the gate. We assume it is located somewhere in Government Lot 5 or Government Lot 6 and along the easement shown in the plat attached to the easement which the trial court ordered the Drakes to sign.

[¶ 25.] “The fee owner of. a road has the right to erect a gate to limit public or third-party access to the road, as long as this does not interfere with the ingress and egress rights of the easement holder.” Knight, 2001 SD 120, ¶ 8, 634 N.W.2d at 543. In Knight, we held the landowner retained the right to erect a gate. We note the Drakes did not explicitly give this right away, and we acknowledge that gates may serve a multitude of valuable purposes. As we do not know the location of the gate, it is unknown whether the lot owners who have lots adjacent to Government Lots 5 and 6 have to go through it to reach their lots. We remand for further proceedings and findings as to whether the lot owners are affected by the gate and if so, what type of access to their lots they have been granted by the 1998 stipulation and other grants.

[¶ 26.] The right of the public to use the easement, however, was limited to “hunting and fishing.” In an affidavit, Merlyn Drake said the easement at issue was given only to “anyone having permission from Defendant [the Drakes] to hunt and fish along the South bank of the Enemy Swim inlet creek and nothing else.” Unfortunately for the Drakes, the vaguely drawn judgment did not explicitly require their permission for the public to enter. Nevertheless, the judgment solely granted the public the right of hunting and fishing access to the lake. There was no explicit grant of vehicle access to the public inside the gate, and such a right cannot be automatically implied. We acknowledge that one does not need a vehicle to hunt or fish. It also appears to be only a short walk to the lake. Unless granted away by easement, the owner of real estate retains the right to determine the extent of vehicular traffic he or she will allow on his or her property:

Herein the [judgment] created an easement in favor of [the public] but did not define its terms. Thus, we rely on the general law of easements to determine its terms. We express no opinion on those written easements where the specific rights and obligations of the parties are completely set forth in the document. In those instances such rights and obligations are created and defined . by the agreement itself.

Knight, 2001 SD 120, ¶ 10, 634 N.W.2d at 543, n. 3; see Selway, 2003 SD 11, ¶ 21, 657 N.W.2d at 314. Given this uncertainty, we remand to the trial court for further proceedings as to what access was granted to the public by the 1998 stipulation and judgment.

[¶27.] We affirm in part and remand in part to the trial court for further proceedings consistent with this opinion.

[¶ 28.] KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.

[¶ 29.] SABERS, Justice, concurs in result.

SABERS, Justice

(concurring in result).

[¶ 30.] It is neither necessary nor wise to reach Issue 1 because, in reality, this is an action to enforce the 1998 judgment, not to “open” or “re-open” it.

[¶ 31.] Even the majority opinion acknowledges that “the current factual situation rendered the Drakes in non-compliance with the 1998 judgment” and “the tribal survey determined the actual location of the improvement was on tribal land, essentially establishing the Drake’s noncompliance with the 1998 judgment.” This is an action to enforce the 1998 judgment, not to “open”, nor to “re-open” it. Since the Drake’s actions are out of compliance with the judgment, it is their actions which need to conform to the judgment, not vice versa.

[¶ 32.] We should not bend the law out of shape just because the parties misstate the issues. Therefore, I concur on the merits on Issues 2 and 3 only.

      . Although the facts of this case suggest subsection (2) might apply because of "newly discovered evidence", such a motion must be brought within a year after the judgment.

      . Blocks also claim that there is a dispute concerning the granting of an easement over an area depicted as "B" on the 1998 judgment. Because the Drakes do not raise this point in their brief, it is deemed not to be before us.

      . The trial court also found the Drakes' mistake as to the location of the road to be in good faith and thus did not find them in contempt. However, if the new road is required to be constructed, failure of the Drakes to comply with the 2003 order may result in a finding of contempt.

      .In Steiner v. County of Marshall, 1997 SD 109, ¶ 23, 568 N.W.2d 627, 632, we held that a private party cannot obtain a prescriptive easement against a governmentally owned parcel of real estate.

      . Drakes’ objection to the removal of the gate is based on their contention that "on a weekly basis vandalism has occurred to their fences, gates and enclosures allowing pastured cattle to roam outside the intended pasture.”

      . Motor vehicle use while hunting is prohibited in certain instances. See State v. Moschell, 2004 SD 35, 677 N.W.2d 551. (citing ARSD 41:06:04:07).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    2004 SD 73
    STATE of South Dakota, Plaintiff and Appellee, v. Joseph JOYCE, Defendant and Appellant.
    No. 22883.
    Supreme Court of South Dakota.
    Considered on Briefs Feb. 17, 2004.
    Decided May 26, 2004.
    Lawrence E. Long, Attorney General, Frank E. Geaghan, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Joel P. Landeen, Lawrence County Public Defender’s Office, Deadwood, South Dakota, Attorneys for defendant and appellant.
   PER CURIAM.

[¶ 1.] Joseph Joyce pled guilty to failure to provide information, a Class 6 felony. SDCL 32-34-5. He was sentenced to eighteen months in the penitentiary and ordered to pay $13,532.18 in restitution. We reverse.

FACTS

[¶2.] On November 29, 2002 at 10:27 a.m. the car driven by Patricia Christo-pherson was stopped waiting to make a left hand turn when her car was rear-ended. The driver of the other car fled. Police were dispatched for a hit and run.

[¶ 3.] Joseph Joyce was detained. He told the officer that he did not have a driver’s license, was on probation, and ran because he was scared. He also told the officer that one stipulation of his probation was that he was not to drive.

[¶ 4.] The State and Joyce entered into a plea agreement which provided, in part:

C. At sentencing the State will recommend that the Defendant serve a county jail sentence and a term of probation in lieu of a prison sentence and that he pay restitution;

[¶ 5.] The trial court found that there was a factual basis for the plea after Joyce and the State told the court:

THE DEFENDANT: I just got off work and I was driving over to Wal-Mart, was getting ready to change lanes, and a lady in front of me stopped to turn left and I just ran into the back of her. I was on probation, didn’t have a license, so I drove away.
THE COURT: What would be the factual basis the State would offer?
MR. FITZGERALD: Your Honor, very similar to what the Defendant has admitted to. There should be some reports perhaps in the file. But as I understand it, the woman in this case was injured and she was taken to the hospital over in Spearfish. A Patricia Christopherson. And I’ve spoken to her once or twice and her lawyer, and she is continuing to go to the doctor for some, I believe, neck pain. And there’s a fair amount of restitution that will probably become an issue in the case.

[¶ 6.] The State indicated that it would make a presentation regarding restitution at sentencing.

[¶7.] Joyce was sentenced on May 7, 2003. Joyce’s attorney told the court “at this point we’re most concerned about the restitution question.” He said:

But, I guess, in looking at it last night and preparing, I had to question whether or not any of the damages suffered were as a result of Mr. Joyce’s criminal activities. Because the criminal activity in this was his leaving the accident, it wasn’t in rear-ending Ms. Christopher-son; therefore, the damages were not a result of his criminal activity. And due to the circumstances, the fact that he left the scene of the accident did not increase her damages any.

The court sentenced Joyce to eighteen months in the penitentiary and ordered $5,473.35 in restitution for vehicle damages and $8,008.70 in restitution for medical expenses. He was also ordered to pay $53 in costs of the accident for LEOTF, $374.72 for court appointed counsel, and $243.60 in transportation costs.

[¶ 8.] Joyce moved to modify the sentence to reduce the amount of restitution. He argued that he should not be required to pay restitution for Christopherson’s medical and vehicle damages because they were not a result of his criminal activity. The court denied the motion.

ISSUE

[¶ 9.] Did the trial court err in awarding restitution as part of the judgment of conviction?

DISCUSSION

[¶ 10.] Joyce argues that he should not have been ordered to pay restitution for Christopherson’s medical and vehicle expenses because her damages were not caused by his leaving the scene of the accident, but rather by the accident itself.

[¶ 11.] Joyce pled guilty to violating SDCL 32-34-5 and was ordered to, pay restitution for that crime. SDCL 32-34-5 provides:

Any driver of any vehicle involved in an accident resulting in injury or death to any person, who fails immediately to stop such vehicle at the scene .of such accident and comply with the provisions of § 32-34-3 is guilty of a Class 6 felony, .and the Department of Revenue shall revoke the registration receipt of the person so convicted.

SDCL 32-34-3 provides:

The driver of any vehicle involved in any accident resulting in injury or death to any person or damage to property shall immediately stop and give his name and address, and the name and address of the owner and the license number of the vehicle he is driving to the person struck or the driver or occupants of any vehicle collided with and shall render to any person injured in such accident reasonable assistance, including the carrying of such person to a physician or surgeon for medical treatment if it is apparent that such treatment is necessary or is required by the injured person.

[¶ 12.] Restitution to victims of crimes is governed by SDCL ch. 23A-28. “It is the policy of this state that restitution shall be made by each violator of the criminal laws to the victims of the violator’s criminal activities to the extent that the violator is reasonably able to do so.” SDCL 23A-28-1. “Restitution” is defined as “full or^ partial payment of pecuniary damages to a victim.” SDCL 23A-28-2. “Victim” is defined, in part, as “any person, as defined in subdivision 22-1-2(31), who has suffered pecuniary damages as a result of the defendant’s criminal activities!)]” SDCL 23A-28-2(5). “Criminal activities” include “any crime for which there is a plea of guilty or a verdict of guilty upon which a judgment of conviction may be rendered and any other crime committed after June 30, 1979, which is admitted by the defendant, whether or not prosecuted.” SDCL 23A-28-2(2). “Pecuniary damages” include “all damages which a victim could recover against the defendant in a civil action arising out of the same facts or event, except punitive damages and damages for pain, suffering, mental anguish, and loss of consortium.” SDCL 23A-28-2(3).

[¶ 13.] In this case Joyce has steadfastly maintained that he should not be responsible for damages that were not incurred due to his criminal activity. The question becomes whether there is a causal connection between Joyce’s leaving the scene (hit and run) and Christopherson’s medical and vehicle damages.

[¶ 14.] The Iowa Supreme Court has held that its restitution statutes, which mirror those in South Dakota, require a causal connection between the conduct for which the defendant is convicted and the damages the victim suffers. In State v. Starkey, 437 N.W.2d 573 (Iowa 1989), Starkey, who was drinking, hit Shapley as she was changing a tire. Starkey did not stop. He was charged with leaving the scene of a personal injury accident. He pled guilty. No restitution was ordered. After Shapley’s leg was amputated and she was undergoing continuing medical treatment, the State asked the court to amend its judgment to include restitution. The court amended the judgment for restitution-for court costs and medical expenses.

[¶ 15.] Starkey argued that he should not have been ordered to pay restitution because Shapley’s damages were not caused by his leaving the scene. The Iowa Supreme Court agreed:

It is clear from the language of our hit- and-run statutes that the legislature had two objectives. One was to require immediate assistance for injured persons. The other was to prevent people from avoiding liability for their acts by leaving the scene without identifying themselves. Cf. Hartwell, 38 Wash.App. at 140, 684 P.2d at 780.
There is no evidence here that Starkey’s act of leaving the scene, the basis of the charge, either caused or aggravated the victim’s injuries. The only inference supported by the record is that Shap-ley’s injuries occurred before Starkey committed the offense with which he was charged: leaving the scene of an accident.
Had Starkey obeyed the law and remained, Shapley’s injuries, as far as this record is concerned, would have been the same. Starkey’s act of leaving the scene did not cause the victim’s injuries. The damages occurred independently of Starkey’s crime.
The State has offered various theories under which the restitution award could be justified. We reject the State’s theories because they would require us to find that the clear language of the restitution statutes is ambiguous. We have already determined that the language is not ambiguous. Our inquiries thus must stop there. See Saadiq v. State, 387 N.W.2d 315, 319 (Iowa 1986).
Absent any evidence that Shapley suffered pecuniary damages as a result of the hit-and-run offense of which Starkey was convicted, the district court should not have ordered restitution for her medical expenses. Because of this error, we reverse the portion of the district court’s decision that orders restitution to Shapley in the amount of $195,000. The portion of the court’s decision ordering restitution to Cerro Gor-do County for court costs in the amount of $477.33 is affirmed, however.

Starkey, 437 N.W.2d at 575.

[¶ 16.] South Dakota’s restitution statutes require a causal connection between a defendant’s crime and a victim’s damages. State v. Davis, 458 N.W.2d 812 (S.D.1990); State v. Munk, 453 N.W.2d 124 (S.D.1990). As in Starkey, 437 N.W.2d at 575, Joyce’s act of leaving the scene did not cause Christopherson’s injuries and resulting damages. Consequently, that portion of the judgment ordering restitution for Christopherson’s medical and vehicular damages is reversed.

[¶ 17.] GILBERTSON, Chief Justice, SABERS, KONENKAMP, ZINTER and MEIERHENRY, Justices, participating.


author: MYREN, Circuit Judge.

text:
    2004 SD 71
    Fred H. OLSON, Jr. and Jennifer Olson, Plaintiffs and Appellants, v. EQUITABLE LIFE ASSURANCE CO., Chris Jung in his individual capacity as Sheriff of Jones County, South Dakota and Chris Jung in his official capacity as Sheriff of Jones County, South Dakota, Defendants and Appellees.
    Nos. 22963, 22974.
    Supreme Court of South Dakota.
    Argued April 27, 2004.
    Decided May 26, 2004.

      Mark V. Meierhenry and Clint Sargent of Danforth, Meierhenry and Meierhenry, Sioux Falls, South Dakota, Attorneys for plaintiffs and appellants Olsons.
    Ronald A. Parsons, Jr., Scott N. Heide-priem and Scott Abdallah of Johnson, Hei-depriem, Miner, Marlow and Janklow, Sioux Falls, South Dakota, Attorneys for defendant and appellee Equitable Life Assurance Co.
    Gary Thimsen and Jeffrey L. Bratkiew-icz of Woods, Fuller, Shultz & Smith, Sioux Falls, South Dakota, Attorneys for defendant and appellee Sheriff Chris Jung individually and as Sheriff of Jones County-
   MYREN, Circuit Judge.

[¶ 1.] This is the second appeal involving a sheriffs sale of certain property in Jones and Stanley Counties. The circuit court granted summary judgment against the plaintiffs on three separate claims. We affirm.

FACTS

[¶ 2.] The facts underlying this case were established in the prior appeal. Equitable Life Assurance v. First National Bank, 1999 SD 144, 602 N.W.2d 291. Fred and Jennifer Olson (Olsops) owned ranchland in Jones and Stanley Counties. The Equitable Life Assurance Society of the United States (Equitable) held a mortgage on the Olsons’ ranch. First National Bank of Pierre (First National) held a second mortgage on the same ranch. Ol-sons went into default on both mortgages. Equitable foreclosed. The circuit court ordered a sheriffs sale and Jones County Sheriff Chris Jung (Sheriff Jung) proceeded to comply.

[¶ 3.] On the day before the scheduled sheriffs sale, Equitable and First National agreed that First National could purchase Equitable’s mortgage interest. Funds were wired that afternoon. Equitable called the sheriffs office to inform it that there was a 95 percent chance' the sale would be cancelled. • On the morning of the sheriffs sale, Equitable attempted to call the sheriffs office to cancel the sale, but was unable to get through. After the sale started, Equitable managed to talk to Sheriff Jung and told him to stop the sale. Equitable told the sheriff to cancel the sale before it had been completed. After speaking with the Jones County State’s attorney, Sheriff Jung proceeded with the sheriffs sale. The sale was completed and the sheriff issued a certificate of sale. The circuit court approved the sale. This Court reversed the circuit court’s endorsement of the sheriffs sale and ordered that the parties should be returned to' their positions as if the sale had been cancelled.

[¶ 4.] After this Court issued its prior decision, Olsons filed suit against Equitable, First National, and Sheriff Jung. Sheriff Jung was sued as an individual and in his official capacity as sheriff.

[¶ 5.] Olsons alleged Sheriff Jung was negligent in failing to discontinue the sheriffs sale after being informed that Equitable had been paid in full and no longer wanted to proceed with the sale. In a separate count Olsons asserted a claim under 42 USC § 1983, contending Sheriff Jung violated their constitutional rights.

[¶ 6.] Olsons alleged Equitable was negligent in failing to cancel the sheriffs sale before it started and in failing to stop the sale before it was completed. In a separate negligence count, Olsons alleged that-Equitable was negligent because its agent, Sheriff Jung, failed to discontinue the sheriffs sale.

[¶ 7.] Olsons alleged (in three separate counts) that First National was negligent, breached its fiduciary duty, and breached a contract by failing to cancel the sheriffs sale. First National Bank filed cross claims against Sheriff Jung and Equitable.

[¶ 8.] Equitable and First National filed motions to dismiss on February 8, 2001. Sheriff Jung filed a motion for summary judgment on February 9, 2001. On February 26, 2001, Olsons filed a motion for a continuance regarding the summary judgment motions. They noted that discovery was not complete, no depositions had been taken, and that eight depositions were scheduled to occur during the week of March 12, 2001.

[¶ 9.] Oral argument on the pending motions was held on March 6, 2001. No testimony was presented. The circuit court ruled that Olsons had not actually or substantially complied with the notice requirements of SDCL 3-21-2. On that basis, the circuit court granted summary judgment with respect to Olsons’ negligence claim against Sheriff Jung. The circuit court dismissed Olsons’ § 1983 claims against Sheriff Jung and found that “there [had] not been a clear violation of [a] constitutional or statutory right which a reasonable person from the perspective of the Sheriff would have known.” The circuit court also concluded that qualified immunity barred the claims.

[¶ 10.] On March 28, 2001, the circuit court entered an order denying the motion for a continuance and granting Sheriff Jung’s motion for summary judgment on Olsons’ complaint and First National’s cross claim. The circuit court declined to make that order a final judgment under SDCL 15 — 6—54(b). This Court denied a request for an intermediate appeal of the order.

[¶ 11.] In July 2008, Olsons reached a settlement agreement with First National. With the agreement of all parties, Olsons’ complaint against First National and First National’s cross claim against Equitable were dismissed with prejudice. This ended First National’s involvement in this case.

[¶ 12.] Equitable filed a motion for summary judgment on June 30, 2003. Equitable also filed a motion for leave to amend its answer and assert a counterclaim for barratry against Fred Olson. The circuit court denied the motion for leave to amend and granted Equitable’s motion for summary judgment. The circuit court ruled that Sheriff Jung’s actions were a superseding cause.

[¶ 13.] A final judgment in this matter was entered on August 8, 2003. Olsons filed a timely appeal. Equitable filed a timely notice of review asking this Court to reverse the circuit court’s decision not to allow Equitable to amend its answer to add a counterclaim for barratry. No argument has been advanced regarding this notice of review issue. It is deemed waived.

ANALYSIS AND DECISION

[¶ 14.] At issue is whether the circuit court correctly granted three separate motions for summary judgment. For clarity, each motion will be addressed separately. The same standard of review applies to each ruling.

[¶ 15.] Summary judgment is authorized “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” SDCL 15-6-56(6). This Court will affirm only when there are no genuine issues of material fact and the legal questions have been correctly decided. Bego v. Gordon, 407 N.W.2d 801, 804 (S.D.1987). All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party. Morgan v. Baldwin, 450 N.W.2d 783, 785 (S.D.1990). The burden is on the moving party to clearly show an absence of any genuine issue of material fact and an entitlement to judgment as a matter of law. Wilson v. Great N. Ry. Co., 83 S.D. 207, 212, 157 N.W.2d 19, 21 (1968).

[¶ 16.] No party to this action has asserted that there were any genuine material issues of fact. Thus, this Court reviews the legal decisions of the circuit court to determine whether they were correct.

ISSUE ONE

[¶ 17.] Did the circuit court correctly apply the doctrine of superseding cause to dismiss Olsons’ claim that Equitable was negligent in failing to stop the sale?

[¶ 18.] It is undisputed that Equitable tried to stop the sale before it was concluded. The circuit court concluded that Sheriff Jung’s act of continuing the sale in contravention of Equitable’s instructions constituted a superseding cause. The doctrine of superseding cause has long been recognized by this Court. See Schmeling v. Jorgensen, 77 S.D. 8, 19, 84 N.W.2d 558, 564 (S.D.1957). This Court most recently addressed the subject in Braun v. New Hope Township, 2002 SD 67, 646 N.W.2d 737. In Braun, this Court utilized the Restatement (Second) of Torts (1984) as a resource. See Braun, 2002 SD 67 at ¶¶ 13-15, 646 N.W.2d at 741. We also observed the following premise:

Prosser notes that in those situations, an original actor is sometimes “free to assume that when a third party becomes aware of the danger, and is in a position to deal with it, the'third person will act reasonably. It is only where misconduct was to be anticipated, and taking the risk of it was unreasonable, that liability will be imposed for consequences to which such intervening acts contributed.” [W. Page Keeton et ah, Prosser & Keeton on the Law of Torts § 44 at 313 (5th ed 1984)]. If a third person fully discovers the danger, and then proceeds, in deliberate disregard of it ... to inflict upon the plaintiff the danger which the third person has discovered the responsibility is shifted to the third party. Id. § 44 at 318-19.

Braun, 2002 SD 67 at ¶ 19, 646 N.W.2d at 742 (emphasis added).

[¶ 19.] Equitable was the bank that requested the sale of the foreclosed property. Assuming Equitable was negligent in failing to cancel the sale before it began, its negligence, left unchecked, might have resulted in harm to Olsons. However, Equitable’s negligence was not left unchecked. Equitable told Sheriff Jung to cancel the sale. No damages would have resulted if Sheriff Jung had complied with Equitable’s instructions to cancel the sale.

[¶ 20.] This is consistent with the Restatement analysis referenced in Braun from § 452. See Braun, 2002 SD 67 at ¶ 15, 646 N.W.2d at 741 (quoting Restatement (Second) of Torts at §§ 452(1) & 452(2)). The general rule is that: “ ‘the failure of a third person to act to prevent harm to another threatened by the actor’s negligent conduct is not a superseding cause of such harm.’” Id. However, paragraph two provides an exception: “ ‘[w]here, because of lapse of time or otherwise, the duty to prevent harm to another threatened by the actor’s negligent conduct is found to have shifted from the actor to a third person, the failure of the third person to prevent, such harm is a superseding cause.’ ” Id. (emphasis omitted).

[¶ 21.] Sheriff Jung chose to proceed with the sale in contravention of Equitable’s instructions’. Although Sheriff Jung may have been acting as Equitable’s agent at some point, at that moment he stepped outside the agency and shifted responsibility for the consequences of completing the sale. See SDCL 59-3-1 & 7 and SDCL 59-5-1 & 2.

[¶ 22.] No material facts are in dispute. Equitable took action to prevent the harm. If Sheriff Jung had followed Equitable’s instructions, the harm to Olsons would have been prevented. Instead, Sheriff Jung chose to proceed with the sale and reinstituted the potential of harm. A reasonable person would have expected the sheriff to follow the directions and orders provided by Equitable. Sheriff Jung’s conduct altered the relationship between the parties. Sheriff Jung’s conduct superseded any negligence by Equitable. The circuit court correctly granted summary judgment in favor of Equitable.

ISSUE TWO

[¶ 23.] Was the circuit court correct in granting summary judgment on Ol-sons’ § 1983 claim?

[¶ 24.] The circuit court granted Sheriff Jung’s motion for summary judgment on Olsons’ claim for damages under 42 USC § 1983. To establish a right to relief under 42 USC § 1983, claimants must allege facts which show that someone acting under color of state law or authority deprived them of a right, privilege, or immunity secured by the Constitution and laws of the United States. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978); Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976); Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).

[¶ 25.] No material issues of fact are in dispute. The circuit court correctly concluded that Olsons failed to assert a viable claim under 42 USC § 1983. Thus, the court correctly granted Sheriff Jung summary judgment.

ISSUE THREE

[¶ 26.] Was the circuit court correct in granting summary judgment on Ol-sons’ negligence claim because of lack of notice under SDCL 3-21-2?

[¶ 27.] SDCL 3-21-2 provides:

No action for the recovery of damages for personal injury, property damage, error or omission or death caused by a public entity or its employees may be maintained against the public entity or its employees unless written notice of the time, place and cause of the injury is given to the public entity as provided by this chapter within one hundred eighty days after the injury.

SDCL 3-21-3(2) requires notice to the county auditor whenever any claim is made against the county or its employees.

[¶28.] Olsons note that SDCL 3-21-2 only applies when the claim against the government is tort-based. They contend that their negligence claim against Sheriff Jung was based on SDCL 15-2-14. However, that statute is clearly a statute of limitation. It does not create any cause of action. Clearly, Olsons’ negligence claim was tort-based.

[¶ 29.] Olsons also argue that they were not required to give notice to the county auditor regarding their claim against Sheriff Jung in his “individual capacity.” Olsons have hot cited any authority for this proposition. They sued Sheriff Jung for actions he took as the Sheriff of Jones County. Their argument runs contrary to the plain language of SDCL 3-21-2.

[¶ 30.] Olsons did not give any notice to the county auditor. Olsons did nothing that was aimed at giving notice to the county auditor. There is no evidence in the record that the county auditor actually received any notice of the claim. Still, Olsons contend that they substantially complied because Sheriff Jung testified that he knew that a “lawsuit was likely to result” and that “this [was] going to end up in court.”

“Substantial compliance” with a statute means actual compliance in respect to the substance essential to every reasonable objective of the statute. It means that a court should determine whether the statute has been followed sufficiently so as to carry out the intent for which it was adopted. Substantial compliance with a statute is not shown unless it is made to appear that the purpose of the statute is shown to have been served. What constitutes substantial compliance with a statute is a matter depending on the facts of each particular case.

Myears v. Charles Mix Co., 1997 SD 89 at ¶ 13, 566 N.W.2d 470, 474 (citations omitted).

[¶ 31.] When an employee of the government is sued, it is not enough to give notice to that employee. The statute specifically requires that notice be given to a person officially responsible to receive notice. This is presumably a person trained and authorized to act in the government’s best interests. There is no evidence in this record that the county auditor received any type of timely notice (actual or constructive) that a lawsuit might be coming. Mere knowledge of the possibility of a claim by one employee of the county, without more, cannot serve as “constructive notice” to the county auditor. Such a construction would eviscerate SDCL 3-21-2. The purpose of the notice statute was not met.

[¶ 32 J The circuit court correctly dismissed Olsons’ negligence claim for failure to provide the required notice under SDCL 3-21-2.

[¶ 33.] Affirmed.

[¶ 34.] GILBERTSON, Chief Justice, and KONENKAMP, Justice, and LIEBERMAN, Circuit Judge, and MILLER, Retired Justice, concur.

[¶ 35.] MYREN, Circuit Judge, for SABERS, Justice, disqualified.

[¶ 36.] LIEBERMAN, Circuit Judge, for ZINTER, Justice, disqualified.

[¶ 37.] MILLER, Retired Justice, for MEIERHENRY, Justice, disqualified.

      . Olsons contend that the circuit court erred when it denied their request for a continuance to conduct discovery on this issue. They knew whether they had given notice to the county auditor. The circuit court did not abuse its discretion. State v. Karlen, 1999 SD 12, 589 N.W.2d 594.


author: STREIT, Justice.

text:
    In the Matter of the ESTATE OF Fay HURT, Deceased. Joyce Carney and Sandra Baldwin, Appellants, v. Roger Hurt and Roger Hurt, as Executor of the Estate of Fay Hurt, Appellees.
    No. 03-0069.
    Supreme Court of Iowa.
    June 16, 2004.
    Thomas H. Claypool and James E. Clay-pool, Williamsburg, for appellants.
    C. Joseph Holland of Holland & Anderson LLP, Iowa City, for appellees.
   STREIT, Justice.

In her will, Fay Hurt gave her son the family farm, except for a small parcel of land containing her home. She left this parcel to her two daughters. She also gave her son the right to cross the daughters’ parcel when farming. The daughters argue this provision of the will is null and void because it results in a violation of a local zoning ordinance.

The district court found Fay clearly wanted her son to be able to drive farm machinery across her daughters’ land, and directed the executor of the estate to ask the Johnson County Zoning Board Of Adjustment for an exception. The court also enjoined the daughters from formally objecting to this request.

• We hold a zoning ordinance cannot prevent an otherwise valid devise of real property, and affirm in part. Because we find an injunction is not proper in these circumstances, however, we vacate that, part of the district court’s order.

I. Facts and Prior Proceedings

Prior to her death in 2001, Fay Hurt owned a 115 acre farm in Johnson County. Fay, a widow, had three grown children: Roger Hurt, Joyce Carney, and Sandra Baldwin.

Fay’s farm had two houses. Fay lived in the “new” house located on the far northeast corner of the farm. Roger lived in the “old” house due west of his mother’s residence.

A ravine divides the farm into two parts, and separates the two houses. It is steep and runs from northeast to southwest. One may travel between the two houses on a public road which forms the northern boundary of the farm.

In order to get to the farm’s southern fields, Roger has used an access located just to the east of his mother’s house. This access extends due south from the public road on the farm’s northern border. Part of the access, it appears, doubles as a driveway to the new house, and is to some extent graveled.

Roger has used this access almost every day for the past forty years. It is his primary access from his residence to the southern fields. Although there is another access to the southern fields which cuts directly across the ravine, crossing this secondary access with farm machinery is difficult, if not impossible. It is too narrow for modern farm machinery, and one must negotiate a steep incline. The culvert at the bottom also often washes out.

In her will, Fay left the farm to Roger, but gave her residence and a small parcel of land surrounding it to Joyce and Sandra. This parcel of land contained Roger’s primary access to the southern fields. Roger was given an option to purchase his sisters’ share for its appraised value, but declined to do so.

The dispute between the parties centers on another provision of the will, which stated:

[M]y son, Roger D. Hurt, will be entitled to have a right-of-way for ingress and egress for agricultural purposes over the east 30 feet of the property which ... I now occupy as my residence. .

Later in the will, Fay referred to this right-of-way as “an easement for ingress and egress for agricultural purposes to the rest of the farm that I have bequeathed to him.” '

Joyce and Sandra contend their mother did not have the power to make such a devise to their brother, because any easement would conflict with a county zoning ordinance. The ordinance, it is argued, requires agricultural easements to be set back at least thirty feet from a home. See Johnson County, Iowa, Ordinances § 8:1.24(III)(8) (2002). Because the new house is located approximately forty feet from the eastern property line, the sisters note it is impossible to put a thirty-feet-wide agricultural easement east of the house. They maintain this provision of the will is therefore null and void.

Roger, as executor, filed an “Application for Orders and Direction,” in which he asked the district court to determine whether he was entitled to a thirty-feet-wide agricultural easement across his sisters’ property. He also “pray[ed] for such other and further orders as the Court deems equitable and just in the premises.” In a pre-hearing memorandum, Roger specifically asked the court to enjoin his sisters from thwarting his plan to seek a variance from the local zoning board.

The district court ruled Fay clearly intended Roger have an easement. For this reason, the court ordered Roger to seek a variance from the local zoning board of adjustment, and enjoined Joyce and Sandra “from objecting to the variance or from taking any action which would defeat the Testator’s intent to allow the easement.”

Joyce and Sandra appealed. They argue (1) Fay did not have the power to devise an easement which violates a local zoning ordinance without first obtaining a variance, and therefore this provision of the will is null and void; (2) they did not have fair notice of an injunction; and (3) an injunction was not, in any event, warranted under these circumstances.

II. Standard of Review

This action was tried in probate as a proceeding in equity. Iowa Code § 633.33 (2001). Our review is de novo. In re Estate of Thomann, 649 N.W.2d 1, 3 (Iowa 2002).

III. Merits

A. Effect of Zoning Ordinance Upon the Will

Joyce and Sandra maintain a testator does not have the power to devise real property in a manner which results in the violation of a zoning ordinance. For this reason, they claim the provision in Fay’s will granting Roger an easement is null and void, because it offends a set-back provision of the Johnson County Zoning Ordinance. They contend their mother needed to obtain a variance if she wanted to make such a conveyance.

Neither party cites a case with similar facts. The daughters cite cases which contain the general proposition that when an act is prohibited or penalized by a statute, the act is void and unenforceable. See, e.g., Pangborn v. Westlake, 36 Iowa 546, 548-49 (1873) (affirming general rule that a penalty implies a prohibition, but recognizing exception where manifest prohibition not intended). Roger, on the other hand, relies upon several cases which reiterate the familiar maxim that the intent of the testator is the “polestar” of our analysis when interpreting wills. See, e.g., In re Estate of Larson, 256 Iowa 1392, 1395, 131 N.W.2d 503, 504 (1964). These cases are all distinguishable, however, because they do not address the impact of zoning ordinances upon testamentary disposition.

While this question appears to be one of first impression in this jurisdiction, several other courts have unanimously held zoning ordinances cannot prevent otherwise valid devises of real property. In re Estate of Sayewich, 120 N.H. 237, 413 A.2d 581, 583 (1980); Metzdorf v. Borough of Rumson, 67 N.J.Super. 121, 170 A.2d 249, 252-54 (1961); Estate of Williams by Lorgan v. Williams, 357 Pa.Super. 476, 516 A.2d 359, 362 (1986). Williams is particularly helpful in resolving the case at bar. Prior to his death, Gilbert Williams owned thirty-three acres of land. Williams, 516 A.2d at 360. In his will, he left one acre to each of his two sons. Id. The trial court voided the devises, because they resulted in the creation of tracts of land smaller than the minimum lot size mandated by a local zoning ordinance. Id. at 361.

The Pennsylvania Superior Court reversed. The court reasoned as follows:

We do not agree that the devises failed because they violated the zoning ordinances .... Zoning pertains to a permissible use of land, not to an individual’s right to hold land .... Zoning law has no application to the resolution of disputes between private parties over real estate interests. A zoning board is empowered to enforce the use of property in a manner consistent with the provisions of a zoning ordinance. A zoning ordinance per se cannot prevent an otherwise valid devise .... However, a zoning board does have the authority to refuse to permit the holder of the land to use or improve a tract smaller than that mandated in the zoning ordinance or to refuse to permit a developer to improve land not subdivided according to the zoning ordinance. Nothing in the zoning ordinance can make illegal the devise .... A devisee who receives real estate not in conformity with the zoning ordinance can hold the land unimproved, can apply for a variance to the zoning ordinance so that he can improve the land or can sell the land.

Id. at 362 (citations omitted, emphasis in original). Appellate courts in New Hampshire and New Jersey also upheld devises under analogous circumstances: both courts held a zoning ordinance — which is directed at the use of land, not its alien-ability — cannot prevent an otherwise valid devise of real property. See Sayewich, 413 A.2d at 583 (Zoning ordinances “are not a means of controlling the alienability of land, but of promoting the orderly and planned growth of a community .... Although these controls may restrict certain [inter vivos] transfers of real property, their focus is on the use and development of land and not its alienability.”); Metzdorf, 170 A.2d at 253 (“The zoning power, in its proper exercise, is not operative upon the alienability of land, but is concerned solely with the manner in which its owner seeks to utilize it.”).

This distinction between alienability and use is important. We have repeatedly stated that a zoning ordinance is merely a restraint upon an owner’s use of property for the protection of the general welfare, and nothing more. Brackett v. City of Des Moines, 246 Iowa 249, 258, 67 N.W.2d 542, 547 (1954); Boardman v. Davis, 231 Iowa 1227, 1231, 3 N.W.2d 608, 610 (1942). Such ordinances cannot invalidate an otherwise valid devise. Fay’s will conveyed an easement to Roger; the provisions of the Johnson County Zoning Ordinance are irrelevant to the alienability of the challenged interest in land.

Title simply passed as Fay intended at the moment of her death. Iowa Code § 633.350 (title to real property passes to beneficiary under terms of will when testator dies); see In re Estate of Austin, 236 Iowa 945, 949, 20 N.W.2d 445, 447 (1945) (“[T]he primary concern of courts is to determine the intent of the testator and give it effect unless contrary to some rule of law or public policy.”). Although our decision might appear, at first glance, to undermine the weighty-public policy behind zoning laws and countenance the illegal,

the passage of title to a devisee has no bearing on the use or development of that property .... Compliance with [a zoning ordinance] is neither excused nor obviated by the division of property under the terms of a will.

Sayewich, 413 A.2d at 583. To the contrary, to accept the daughters’ argument would result in the imposition of the rules of partial intestacy, a result which we have long disfavored. See id.; accord Estate of Austin, 236 Iowa at 948, 20 N.W.2d at 447 (partial intestacies disfavored). Assuming the ordinance applies on these facts, Roger takes title to an interest in his sisters’ land, subject to the existing county zoning laws and with the right to seek a variance.

B. The Injunction

In the district court, Roger filed an application requesting the court resolve the parties’ dispute. At the end of his application, Roger included a general prayer for relief, in which he asked for “other and further orders as the Court deems equitable and just in the premises.” Just prior to the hearing on the application, Roger specifically asked the court to enjoin his sisters from taking any measures which might thwart his plan to seek a variance, including challenging his formal request before the local board of adjustment.

After determining the zoning ordinance did not inhibit Fay’s power to devise an easement, the district court “enjoined [Joyce and Sandra] from objecting to the variance or taking any action which would defeat [Fay’s] intent to allow the easement.” The court concluded an injunction was necessary to give effect to its ruling, and would expedite the estate proceedings. Joyce and Sandra claim they did not have adequate notice Roger would seek an injunction. They also maintain an injunction was not, in any event, proper under these circumstances. Because we determine an injunction was not proper, we need not decide whether Joyce and Sandra were afforded adequate notice.

We have repeatedly cautioned an injunction is “an extraordinary remedy that is granted with caution and only when required to avoid irreparable damage.” Skow v. Goforth, 618 N.W.2d 275, 277-78 (Iowa 2000); see Nelson v. Agro Globe Eng’g, Inc., 578 N.W.2d 659, 662 (Iowa 1998). In order to obtain an injunction, a party must show

(1) an invasion or threatened invasion of a right, (2) substantial injury or damages will result unless an injunction is granted, and (3) no adequate legal remedy is available.

Skow, 618 N.W.2d at 278. As Joyce and Sandra point out, no right presently possessed by Roger is threatened; as we have indicated, the will grants Roger title to an interest in his sisters’ land, i.e., an easement, but that mere fact does not entail a corresponding right to have the board of adjustment grant him a variance, should he choose to ask for one. Although we have countenanced the use of an injunction to restrain one party from pursing legal relief against another, in this case the mere satisfaction of testator intent is an insufficient basis for the issuance of such an injunction. Cf. In re Lulof, 569 N.W.2d 118, 124 (Iowa 1997) (citations omitted) (a court should not enjoin a party from pursuing legal relief “unless ... clearly necessary to protect against continued vexatious or oppressive litigation”); Cushing v. Fort Worth Nat'l Bank, 284 S.W.2d 791, 795 (Tex.Civ.App.1955) (dissolving district court order enjoining heirs from seeking further recovery of estate assets). The injunction must be dissolved.

IV. Conclusion

We affirm in part and reverse in part. A zoning ordinance cannot prevent an otherwise valid devise of real property, and therefore the district court correctly refused to invalidate this portion of Fay’s will. Because no presently possessed right of Roger is threatened, however, the district court wrongly enjoined Joyce and Sandra from contesting Roger’s request for a variance before the local board of adjustment. We thus vacate this part of the district court’s order.

Costs on appeal are assessed against Joyce and Sandra.

AFFIRMED IN PART AND REVERSED IN PART.

      . The daughters also contend another provision in the ordinance requires agricultural easements be at least twenty-five feet wide, and so a narrower conforming agricultural easement could not be placed east of the house. See Johnson County, Iowa, Ordinances § 8:1.22(v)(7)(f)(5) (2002).

      . It is important to point out that in the foregoing discussion we have assumed, without deciding, that Roger's continued use of the right-of-way is subject to the Johnson County Zoning Ordinance. Nothing in this opinion should be construed to hold that a zoning ordinance is applicable to facts such as these, which could be understood as nothing more than an agreement between private parties. We do not decide, then, whether Roger is required to apply for a variance to use his right-of-way. (Nor do we construe or apply the Johnson County Zoning Ordinance.) We have simply assumed the ordinance applies, and held this mere fact would not invalidate any part of Fay’s will.


author: WIGGINS, Justice.

text:
    ABC DISPOSAL SYSTEMS, INC., Appellant, v. DEPARTMENT OF NATURAL RESOURCES, Appellee.
    No. 03-0147.
    Supreme Court of Iowa.
    June 16, 2004.

      Douglas H. Napier of Napier, Wolf & Napier, Fort Madison, for appellant.
    Thomas J. Miller, Attorney General, and David R. Sheridan and David L. Dorff, Assistant Attorneys General, for appellee.
   WIGGINS, Justice.

ABC Disposal Systems, Inc. (ABC) owns property in Hiawatha, Iowa, which it used for truck-to-trailer transfers of solid waste. Prior to investing in the equipment to perform truck-to-trailer transfers, ABC relied on advice from the Iowa Department of Natural Resources (DNR) that truck-to-trailer transfers did not require a sanitary disposal project permit. The DNR subsequently reversed its decision and ordered ABC to obtain a permit for its Hiawatha facility. It also levied a civil penalty against ABC in the sum of $5000 for ABC’s failure to obtain a permit. On administrative appeal, the Iowa Environmental Protection Commission (Commission) affirmed the DNR’s order that ABC was required to obtain a permit but reversed the Commission’s order assessing the civil penalty. ABC sought judicial review of the Commission’s decision in district court. The district court agreed with the Commission that ABC was required to obtain a permit for its Hiawatha facility. ABC appealed the district court’s decision. Because we agree that ABC is required to obtain a permit for its Hiawatha facility, we affirm the district court.

I. Background Facts and Proceedings.

ABC operates a solid waste collection business in Hiawatha, Iowa. In 1997, ABC began considering whether transfer trailers, which Brothers Industries (Brothers) manufactured, would be a good investment for ABC. Transfer trailers have expandable' sides on the receiving end and a two-way walking floor. Brothers specially designed the transfer trailer for the direct truck-to-trailer transfer of materials such as solid waste. Using a ramp, the driver of the route-collection truck backs up into the transfer trailer and unloads its contents directly onto the trailer’s floor. ABC’s driver then hauls the transfer trailer to a landfill, where the waste is disposed. The advantage of transfer trailers is that it enables ABC to consolidate waste collected by two to three route-collection trucks in a single transfer trailer and transport largé loads of solid waste to less expensive out-of-state disposal sites.

In the process of deciding whether to purchase transfer trailers, Ted Carter, a representative of ABC, met with a Brothers representative. As part of the sales pitch, the Brothers representative showed Carter a copy of a letter Brothers received from the DNR’s solid waste section. The letter, which was dated November 20, 1996, stated, “a transfer station permit is not required in order for route-collection trucks to backup and unload into the rear of a transfer trailer with expandable side walls and a two-way walking floor.”

, In order to determine whether the above letter was legitimate and to ensure it was still the DNR’s position that transfer trailers did not require a permit, Carter contacted the author of the above letter, who 'reaffirmed his earlier position. Additionally, Carter contacted ' another DNR employee who told him the same thing.

Ultimately, Carter purchased four transfer trailers and tractors to pull the trailers. ABC used its property located in Hiawatha to transfer the solid waste from the route-collection trucks to the. transfer trailers. The Hiawatha facility had a concrete ramp, which the drivers of the route-collection trucks used to back their trucks up to the transfer trailers. Once the. route-collection truck and the transfer trailer were in position, the transfer, would take place. After the transfer was completed, ABC would haul most of the solid waste it collected to a private landfill in Milan, Illinois, where ABC received more favorable tipping rates as compared to the tipping rate it received at the local Iowa landfill. On occasion, ABC has also taken solid waste to Iowa landfills. The transfer trailers loaded with solid waste remain on the Hiawatha facility for less than twelve hours, excluding weekends or holidays.

On July 8, 1998, the DNR informed Brothers that it was reversing its prior opinion concerning the need of a permit for truck-to-trailer transfers of solid waste. The letter stated, “A transfer station permit is now required for truck-to-truck transfer of solid waste.” The letter also listed other requirements for applicants to submit in order to obtain a permit. Over three months later, the DNR sent a similar letter to ABC informing ABC of the change in its requirements. The letter gave ABC until January 8, 1999, to comply with the requirements for obtaining a permit. ABC argued it was not a “facility” under the statute and resisted the DNR’s request to obtain a permit. From July 1999 to January 2001, there was no communication between the DNR and ABC. The DNR explains the, lapse in time was because it was in the process of reviewing 567 other cases.

On November 29, 2000, at the request of the DNR, the Attorney General’s office issued an opinion concerning the requirements for operation of solid waste transfer stations in Iowa. The opinion concluded, “solid waste transfer stations are sanitary disposal projects within the meaning of Iowa Code section 455B.301Q.8), for which permits are required pursuant to Iowa Code section 455B.305.”

On January 5, 2001, the DNR once again informed ABC that it must obtain a sanitary disposal permit for its Hiawatha facility. The DNR gave ABC a deadline of February 28, 2001, to obtain the permit. ABC continued to deny it needed a permit. At ABC’s request, on April 4, 2001, an inspector from the DNR observed and videotaped a transfer of solid waste from a route-collection truck to a transfer trailer. The purpose of the DNR inspection was to gather information regarding the process that is involved with the transfer of solid waste from the route-collection trucks to the enclosed trailers. The inspector reported ABC uses two or three transfer trailers each- day to haul approximately forty tons of solid waste to the landfill. Further, the inspector observed a small amount of solid waste that escaped during the transfer, which a worker immediately recovered and placed in the transfer trailer. The inspector also observed a small amount of liquid dripping from the floor of the transfer trailer onto the concrete ramp. The liquid was leachate. Leachate is “fluid that has percolated through solid waste and which contains contaminants consisting of dissolved or suspended materials, chemicals, or microbial waste products from' the solid waste.” Iowa Code § 455B.30R9) (2001). ABC informed the inspector an underground tank collects the leachate through a drain connected to the tank. The underground tank was on the property when ABC purchased the property. ABC had the drain installed by a third party, who is now deceased. No person at ABC knew anything about the size of the tank or the material from which it was constructed. ABC told the inspector it emptied the tank twice á week, depending on rainfall. After emptying the tank, ABC then would spread the leachate on construction debris, which absorbed more liquid than other waste materials. ABC would then put the construction debris in the transfer trailer with the other waste. After this inspection, the DNR maintained its previous position regarding ABC’s need for a permit at the Hiawatha facility.

On July 24, 2001, the DNR issued an administrative order requiring ABC to submit, within fourteen days, all sanitary disposal project permit application documents or cease operation until ABC submits the requested documentation. The order also required ABC to pay a civil penalty of $5000. ABC appealed this order to the Commission pursuant to Iowa Code section 455B.308.

An administrative law judge from the Iowa Department of Inspections and Appeals conducted the hearing. Iowa Admin. Code r. 561-17.12(1). The administrative law judge entered her proposed decision affirming the portion of the order requiring ABC to obtain a permit for its Hiawatha facility but reversing the portion of the order that assessed the $5000 civil penalty. The Commission upheld the administrative law judge’s proposed decision. The district court, on judicial review, affirmed the decision of the Commission. ABC appeals.

II.Issues.

ABC raises several issues on appeal. They are: (1) whether the DNR . has the statutory authority to require a sanitary disposal project permit for truck-to-trailer transfers; (2) whether ABC operates a transfer station; (3) whether the statutes governing The issuance of permits for sanitary disposal projects are unconstitutionally vague; and (4) whether the DNR is estopped from issuing an administrative order based on its past representations to ABC that no permit was required for its truck-to-trailer transfer operations.

III. Standard of Review.

In reviewing the decision of the district court, we must apply the standards set forth in Iowa Code section 17A.19(10) and determine whether our application of those standards produce the same results as reached by the district court. Auen v. Alcoholic Beverages Div., 679 N.W.2d 586, 589 (Iowa 2004). Section 17A.19(10) allows the district court to grant relief to a party seeking judicial review if the court determines that substantial rights of the person seeking judicial relief has been prejudiced by the agency action because the agency action, meets any one of the several enumerated provisions in paragraphs a through n. Iowa Code § 17A.19(10). Neither party claims that if we find that one of the enumerated provisions of section 17A.19(10) has been met, that the agency’s action does not affect the substantial rights of ABC. We will set out the applicable provisions of section 17A.19(10) as they relate to each issue.

IV. Did the Commission Have the Statutory Authority to Require a Sanitary Disposal Project Permit for Truck-to-Trailer Transfers?

Standard of Review. The crux of the argument made by ABC on this issue is that the Commission in the agency proceeding erroneously interpreted section 455B.301(18) by finding a “sanitary disposal project” to include transfer stations using transfer trailers. ABC’s claim is covered by one of two of the enumerated provisions contained in Iowa Code section 17A.19(10). Paragraph c provides:

Based upon an erroneous interpretation of a provision of law whose interpretation has not clearly been vested by a provision of law in the discretion of the agency. - -

Iowa Code § 17A.19(10)(e). Paragraph l provides:

Based upon an irrational, illogical, or wholly unjustifiable interpretation of a provision of law whose interpretation has clearly been vested by a provision of law in the discretion of the agency.

Id. § 17A.19(10)(l). To determine which provision is applicable to this appeal, we must determine whether the legislature clearly vested by a provision of law in the discretion of the Commission the interpretation of the term “sanitary disposal project.” If the legislature vested this matter by a provision of law in the discretion of the Commission, paragraph l applies; otherwise, paragraph c supplies the standard of review.

The Iowa Code created the Commission as a part of the DNR. Id. § 455A.6. By statute, the legislature has given the Commission the authority to establish policy for the DNR and adopt rules necessary to provide for the effective administration of Iowa Code chapter 455B. Id. § 455A.6(6)(a). The legislature has also given the Commission the power to establish rules for the proper administration of part I of division IV of Iowa Code chapter 455B

relating to the establishment and location of sanitary disposal projects, sanitary practices, inspection of sanitary disposal projects, collection of solid waste, disposal of solid waste, pollution controls, the issuance of permits, approved methods of private disposition of solid waste, the general operation and maintenance of sanitary disposal projects, and the implementation of this part.

Id. § 455B.304(1). The legislation requiring a permit for the operation of a sanitary disposal project is contained in part I, division IV of chapter 455B. Id. § 455B.305(1). Because the legislature has clearly vested the interpretation of the provisions of the law dealing with the permitting of a sanitary disposal project in the discretion of the Commission, we can disturb the Commission’s interpretation of the law based only upon an irrational, illogical or wholly unjustifiable interpretation of this provision of the law. Id. § 17A.19(10)(l)• Additionally, we are required to give deference to the view of the agency because the legislature vested in the discretion of the agency the permitting of a sanitary disposal project. Id. § 17A.19(ll)(c).

Analysis. Iowa Code section 455B.305 requires the director of the DNR to issue permits for the operation of a sanitary disposal project. Id. § 455B.305(1). The Iowa Code defines a sanitary disposal project as:

[a]ll facilities and appurtenances including all real and personal property connected with such facilities, which are acquired, purchased, constructed, reconstructed, equipped, improved, extended, maintained, or operated to facilitate the final disposition of solid waste without creating a significant hazard to the public health or safety, and which are approved by the executive director.

Id. § 455B.301(18). By rule, the Commission has defined a transfer station as “a fixed or mobile intermediate solid waste disposal facility for transferring loads of solid waste, with or without reduction of volume, to another transportation unit.” Iowa Admin. Code r. 567-100.2.

In interpreting a statute, our goal is to determine the legislature’s intent when it enacted the statute. State v. Tague, 676 N.W.2d 197, 201 (Iowa 2004). “We do not speculate as to the probable legislative intent apart from the words used in the statute.” State v. Adams, 554 N.W.2d 686, 689 (Iowa 1996); accord State v. Welton, 300 N.W.2d 157, 160 (Iowa 1981) (stating, “when a statute is plain and its meaning is clear, courts are not permitted to search for meaning beyond its expressed terms”). If the statute’s language is clear and unambiguous, we apply a plain and rational meaning consistent with the subject matter of the statute. City of Waukee v. City Dev. Bd., 590 N.W.2d 712, 717 (Iowa 1999). Finally, courts construe environmental statutes liberally. State v. DeCoster, 596 N.W.2d 898, 902 (Iowa 1999).

“All facilities and appurtenances ... connected with such facilities ... to facilitate the final disposition of solid waste” are sanitary disposal projects. Iowa Code § 455B.301(18). “Facilities,” “appurtenances,” or “facilitate” are not defined in part 1 of division IV of chapter 455B. ABC contends the court should use the definitions of “disposal” and “facilities” contained in sections 455B.482(1) and (2) to interpret section 455B.301(18). We disagree. The definitions in sections 455B .482(1) and (2) are to be used in interpreting part 9 of division IV of chapter 455B, not part 1 of division IV where section 455B.301(18) is found. Id. § 455B.482.

The plain meaning of a facility is “something that is built, constructed, installed, or established to perform some particular function.” Webster’s Third New International Dictionary 812-13 (unabr. ed.2002). “Appurtenances” are “accessory objects used in any function.” Id. at 107. “Facilitate” means “to make easier or less difficult.” Id. at 813. A transfer station is “a fixed or mobile, intermediate solid waste disposal facility for transferring loads of solid waste, with or without reduction of volume, to another transportation unit.” Iowa Admin. Code r. 567-100.2. Under the plain language of section 455B.301(18), a transfer station is built, constructed, installed, or established to make it easier to finally dispose of solid waste. The use of transfer trailers are accessory objects used in the function to make the final disposition of solid waste easier. The Commission was correct in interpreting a sanitary disposal project under section 455B.301(18) to include transfer stations that use transfer trailers.

V. Does ABC Operate a Transfer Station?

Standard of Review. ABC claims the Commission erred in concluding its facility in Hiawatha is a transfer station. The legislature gave the Commission the discretion to conduct the appeal hearing. Iowa Code § 455B.308. We can grant ABC relief only if the determination of fact made by the commission “is not supported by substantial evidence in the record before the court when that record is viewed as a whole.” Id. § 17A.19(10)(f). The agency’s decision does not lack substantial evidence merely because the interpretation of the evidence is open to a fair difference of opinion. Myers v. F.C.A. Servs., Inc., 592 N.W.2d 354, 356 (Iowa 1999). Section 17A.19(10)(f)(3) requires the adequacy of the evidence

to support a particular finding of fact must be judged in light of all the relevant evidence in the record cited by any party that detracts from that finding as well as all of the relevant evidence in the record cited by any party that supports it....

We can disturb the agency’s application of law to fact only if the agency’s application is irrational, illogical, or wholly unjustifiable because the application of law to fact has been clearly vested by a provision of law in the discretion of the agency. Iowa Code § 17A.19(10)(m).

Analysis. The record indicates that ABC transfers most of the solid waste collected by its route-collection trucks to the transfer trailers at the Hiawatha facility. Approximately forty tons of solid waste are transferred at the ABC Hiawatha facility each day. This amounts to more than ten thousand tons of solid waste in a year. This is more solid waste than is accepted by permit at some landfills located in the State of Iowa. During the transfer process, solid waste does fall to the ground and leachate drips from the route-collection truck and the transfer trailer. Although ABC immediately picks up the solid waste and puts it in the transfer trailer, ABC allows the leachate to accumulate in an underground tank. At the time of the DNR inspection, ABC informed the inspector that it empties the leachate tank twice a week depending on rainfall. At the hearing, ABC testified that it emptied the underground tank only twice last summer. There are no records indicating whether the tank is intact or if any of the leachate is being absorbed into the soil and entering the ground water.

The legislature has declared the goal of solid waste disposal in part 1 of division IV of chapter 455B to be “[t]he protection of the health, safety, and welfare of Iowans and the protection of the environ-ment_” Iowa Code § 455B.301A(1). The statutory charge given to the Commission by the legislature when the Commission adopted the rule defining transfer station was to “reflect and accommodate as far as is reasonably possible the current and generally accepted methods and techniques for treatment, and .disposition of solid waste.Id. § 455B.304(1).

Although the record indicated that persons normally think of transfer stations as sites where route-collection trucks dump their solid waste on the ground to be recollected and transferred into other vehicles for shipment to another site, the evidence also indicated that transfer stations do not always dump the solid waste on the ground. One example given at the hearing was where the route-collection trucks transferred the solid waste directly to compactors, rather than on the ground. There is no statutory authority requiring route-collection trucks at a transfer station to off-load their waste onto the ground.

Substantial evidence supports the finding ABC uses the Hiawatha facility to transfer loads of solid waste from one transportation unit to another. The evidence also supports a finding ABC uses fixed and mobile components to hold the solid waste at the Hiawatha facility for a period before ABC transports solid waste to its final destination. Applying these findings of' fact to the rule defining a “transfer station,” we conclude the Commission’s application of law to fact was rationál, logical, and wholly justifiable. ABC is required to obtain a sanitary disposal permit to operate its Hiawatha facility. Iowa Code § 455B.305(1).

VI. Were the Statutes Governing the Issuance of Permits for Sanitary Disposal Projects Unconstitutionally Vague?

Standard of Review. Iowa Code section 17A.19(10)(a) allows us to grant relief from agency action if the action is “[u]neonstitutional on its face or as applied or is based upon a provision of the law that is unconstitutional on its face or as applied.” Iowa Code § 17A.19(10)(a). Under the doctrine of separation of powers, the judiciary is required to determine the constitutionality of legislation and rules enacted by the other branches of government. Luse v. Wray, 254 N.W.2d 324, 327 (Iowa 1977). We will not give any deference to the view of the agency with respect to the constitutionality of a statute or administrative rule, because it is exclusively up to the judiciary to determine the constitutionality of legislation and rules enacted by the other branches of the government. Iowa Code § 17A.19(11)(b). When a party raises constitutional issues in an agency proceeding, our review is de novo. Rosen v. Bd. of Med. Exam’rs, 539 N.W.2d 345, 348 (Iowa 1995).

Analysis. Under the Due Process Clause, a civil statute is unconstitutionally vague “when its language does not convey a sufficiently definite warning of the proscribed conduct.” Devault v. City of Council Bluffs, 671 N.W.2d 448, 451 (Iowa 2003). The legal test for determining vagueness is: “[i]f the statute’s meaning is fairly ascertainable by reliance on generally accepted and common meaning of words used, or by reference to the dictionary, related or similar statutes, the common law, or previous judicial constructions, due process is satisfied.” Knight v. Iowa Dist. Court, 269 N.W.2d 430, 432 (Iowa 1978). There is a presumption of constitutionality and a litigant can only rebut this presumption by “negating every reasonable basis oh which the statute can be sustained.” Devault, 671 N.W.2d at 451. “Literal exactitude or precision is not required.” Id. “A statute is not unconstitutionally vague merely because a key word has not been specifically defined.” Id. To avoid a rule from unduly restricting the regulation of certain matters, a certain degree of indefiniteness is necessary. Fisher v. Iowa Bd. of Optometry Exam’rs, 510 N.W.2d 873, 876 (Iowa 1994).

ABC argues section 455B.301(18), which defines a “sanitary disposal project,” does not give sufficient notice to ABC that its Hiawatha facility is a sanitary disposal project subject to permitting; therefore, the statute is unconstitutionally vague. It argues every act of handling, transporting, compacting, sorting, moving, or dumping of solid waste facilitates the final disposition of solid waste. It contends the simple act of transferring solid waste from a wastebasket to a dumpster at an office building or the transfer of the solid waste from the dumpster to the route-collection truck facilitates the final disposition of solid waste, making the dumpster a sanitary disposal project under the statute. The' district court upheld the statute as not being unconstitutionally vague by interpreting the statute to mean the facility must substantially facilitate the final disposition of solid waste. ABC contends the district court recognized the vagueness of the statute by implicitly adding the word “substantially” to clarify the definition of a solid waste disposal project and to avoid dumpsters from being solid waste disposal projects under the statute. ABC concludes its argument by contending that the district court impermissibly delegated to the DNR the power to determine when a facility is a sanitary disposal project on an ad hoc and subjective basis. The DNR argues otherwise.

It is not necessary to read the word “substantially” into the statute to cure its alleged vagueness. The statute is not vague as written. The statute defines “[a]ll facilities and appurtenances ... which are acquired, purchased, constructed, reconstructed, equipped, improved, extended, maintained, or operated to facilitate the final disposition of solid waste ...” as sanitary disposal projects. - The facility must not only “facilitate the final disposition of solid waste,” but must also be “acquired, purchased, constructed, reconstructed, equipped, improved, extended, maintained, or operated” for that purpose. A dumpster located at an office building is not located at a facility “acquired, purchased, constructed, reconstructed, equipped, improved, extended, maintained, or operated to facilitate the final disposition of solid waste.” The legislature has not given the DNR the authority to define sanitary disposal projects on an ad hoc or subjective basis. If the facility is acquired, purchased, constructed, reconstructed, equipped, improved, extended, maintained, or operated for the purpose to facilitate the final disposition of solid waste, it is a sanitary disposal project. This definition is not so uncertain that it fails to give fair notice to the public as to which facilities are sanitary disposal projects. ABC had fair notice its Hiawatha facility was a sanitary disposal project.

VII. Is the DNR Estopped from Issuing an Administrative Order Based on its Past Representations to ABC that no Permit was Required for its Truck-To-Trailer Transfer Operations?

Standard of Review. The argument made by ABC on this issue is whether the Commission erroneously interpreted or applied the doctrine of equitable estoppel to the DNR’s enforcement of Iowa Code section 455B.305, requiring ABC to obtain a permit for its Hiawatha facility. The principles governing our review of this issue are the same as those applied in division IV of this opinion.

The doctrine of equitable es-toppel is a common law doctrine preventing one party who has made certain representations from taking unfair advantage of another when the party making the representations changes its position to the prejudice of the party who relied upon the representations. Ahrendsen v. Iowa Dep’t. of Human Servs., 613 N.W.2d 674, 678 (Iowa 2000). The legislature has not delegated any special authority or power to the agency to interpret or apply the common law doctrine of equitable estoppel. Thus, our review of the agency’s action is for the correction of errors of law. Iowa Code § 17A.19(10)(c). We are also not required to give any deference to the agency’s interpretation and application of the doctrine of equitable estoppel. Id. § 17A.19(11)(b). We are free to substitute our judgment de novo for the agency’s interpretation and application of equitable estoppel. Auen, 679 N.W.2d at 590. Equitable estoppel must be proven by clear and convincing evidence. Fencl v. City of Harpers Ferry, 620 N.W.2d 808, 816 (Iowa 2000).

Analysis. The elements of equitable estoppel are “(1) a false representation or concealment of material facts; (2) lack of knowledge of the true facts on the part of the actor; (3) the intention that it be acted upon; and (4) reliance thereon by the party to whom made, to his prejudice and injury.” City of Akron v. Akron-Westfield Cmty. Sch. Dist., 659 N.W.2d 223, 226 (Iowa 2003). ABC acknowledges that as a general rule, equitable estoppel cannot be invoked against the state. Iowa Dep’t of Transp. v. Nebraska-Iowa Supply Co., 272 N.W.2d 6, 14 (Iowa 1978).

ABC relies on Nebraska-Iowa Supply Co. to support the application of equitable estoppel in the present case. In Nebraska-Iowa Supply Co., the Iowa Department of Transportation (DOT) brought an equitable action asking the court to order Nebraska-Iowa Supply Company to remove its billboards located near primary highways because it failed to file a timely permit application. 272 N.W.2d at 8-9. Nebraska-Iowa Supply Company claimed it filed the applications late because the proper forms were not available at the DOT’S office. Id. at 9. This court did not rely on the doctrine of equitable estoppel to find against the DOT but relied on the defense of unclean hands. Id. at 14-15.

We have consistently held equitable estoppel will not lie against a government agency except in exceptional circumstances. Bailiff v. Adams County Conference Bd., 650 N.W.2d 621, 627 (Iowa 2002). A person seeking to invoke the doctrine of equitable estoppel against a government body “bears a heavy burden, particularly when the government acts in a sovereign or governmental role rather than a proprietary role.” Id. In the present case, when the DNR initially advised ABC that the transfer trailers would not require a sanitary disposal project permit, the agency official was acting in good faith and within the ambit of his duties even though he made an erroneous interpretation of the law. The agency official was clearly acting in his governmental role in compliance with the statutory duties assigned to him. Under this set of facts, there are no exceptional circumstances that would justify an exception to the general rule that the doctrine of equitable estoppel cannot be used against government agencies. See City of Lamoni v. Livingston, 392 N.W.2d 506, 511-12 (Iowa 1986).

VIII. Disposition.

Having concluded (1) the DNR had the statutory authority to require a sanitary disposal project permit for truck-to-trailer transfers; (2) ABC operates a transfer station; (3) the statutes governing the issuance of sanitary disposal project permits are not unconstitutionally vague; and (4) the DNR was not estopped from issuing its administrative order, we affirm the judgment of the district court.

AFFIRMED.