The federal appeals court based in Denver agreed last week that while two property owners in Costilla County have argued the process for permitting their septic tank should look different, the county’s existing protocol does not violate their constitutional rights.

Billie and Tracy Smith, a mother and son from South Carolina, sued two Costilla County officials for allegedly depriving them of due process and for taking their property without just compensation. The essence of the dispute was that the Smiths read Colorado law to require the county to issue a permit prior to the installation of their onsite wastewater treatment system — a septic tank — but the county would only issue the permit after installation.

A three-judge panel of the U.S. Court of Appeals for the 10th Circuit concluded the Smiths do not have a constitutionally protected property interest in a specific permitting procedure, even if Costilla County’s conflicts with state law.

“They expected to be able to build a home on the property, and the county’s procedure allows them to realize that expectation. Granted, the procedure requires them to work in a sequence they do not prefer,” wrote Judge Joel M. Carson III in the Oct. 11 order. “But they ‘must expect’ occasional restrictions on the use of their property.”

In October 2022, Billie Smith wrote to county land administrator Tara Medina to demand a permit for her property’s septic system. Although the Smiths had been told they could proceed with installing their proposed system, Medina emphasized the county’s process entailed issuing the onsite wastewater treatment permit after installation and inspection, not before.

The Smiths then filed suit in federal court. They alleged the county’s sequence did not follow the state’s onsite wastewater treatment system law and they were worried about participating in an “illegal scheme” subject to “criminal penalties.”

“Plaintiff has never seen a situation where county officials withhold a permit until after construction is completed,” wrote Billie Smith, representing herself.

However, the Smiths did not lodge claims for a violation of state law. Instead, they argued county employees were violating their constitutional rights. They asked a judge to order the county to provide a permit for their planned septic system.

In September 2023, U.S. District Court Chief Judge Philip A. Brimmer dismissed the lawsuit. He noted the county was not prohibiting the Smiths from developing their property and its process for permitting onsite wastewater treatment systems was reasonable.

“The County’s decision to issue a property owner the OWTS permit after the septic system is inspected is rationally related to advancing public health and safety. The County could conceivably believe that issuing the permit after inspection will help reduce groundwater contamination, the spread of diseases, or other environmental issues,” Brimmer wrote.

The Smiths appealed, arguing Brimmer failed to acknowledge the sequence allegedly laid out in state law and reiterating their fear that they would violate the law by installing a septic system without the county’s permit.

“In the year since this case began, the Smiths have had every opportunity to comply with Costilla County procedures and install the very system they prefer. Defendants have assured them of their right to do so,” responded attorneys for the defendants. “Simply put, the Smiths refuse to take ‘yes’ for an answer.”

The 10th Circuit panel agreed the county’s sequencing was fair, even if the Smiths raised valid reasons for why it should look different.

“But our task is not to decide if the county uses the best possible procedure,” wrote Carson. “We decide only whether its procedure remains within the wide boundaries set by due process. It does.”

The case is Smith et al. v. Medina et al.