(dissenting).
[¶ 40.] I respectfully dissent because the majority opinion fails to consider the relevant facts of the nuisance action and avoids the plain meaning of the word “manufacture” resulting in numerous mistakes and a wrongly decided opinion.
One is subject to liability for a private nuisance if, but only if, his conduct is a legal cause of an invasion of another’s interest in the private use and enjoyment of land, and the invasion is either
(a) intentional and unreasonable, or
(b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities.
Collins v. Barker, 2003 SD 100, ¶ 17, 668 N.W.2d 548 (citing Restatement (Second) of ToRts § 822 (1979)).12 “The conduct making an actor liable may consist of (a) an act; or (b) failure to act under the circumstances in which the actor is under a duty to take positive action to prevent or abate ... the invasion of the private interest.” Id. (quoting Restatement (Second) of ToRts § 825 (1979)). “An actor’s invasion is considered intentional if the actor (a) acts for the purpose of causing it; or (b) knows that it is resulting or is substantially certain to result from his conduct.” (emphasis added).
[¶ 41.] The circuit court found that the fans and compressors of Tour Ice create noise at random “24 hours per day 7 days per week.” Conveyor noise is made whenever the conveyor is running. Semi trucks are loaded with ice between the hours of 5:00 a.m. to 7:00 a.m. Monday through Friday, some Saturdays, and occasionally on Sundays and holidays.
[¶ 42.] Atkinson presented decibel readings taken at night with a digital hand held sound meter. The circuit court admitted the meter readings into evidence and incorporated them into its findings of fact. The court found that the noise in Atkinson’s apartment was generally in the 70-75 decibel range.13 At most, the court found that the noise in Atkinson’s apartment was comparable to that created by “a freight train.” On average, the court *803found that the noise level was that of a “vacuum cleaner.” Despite those findings, the circuit court denied relief finding that “the world is not silent.”
[¶ 43.] The Environmental Protection Agency, in a report on noise control, noted that “undue interference with activity and annoyance will not occur if ... indoor levels [of noise] ... are maintained at an energy level of 45 dB.”14 See Information on Levels of Environmental Noise Requisite to Protect Public Health and Welfare with an Adequate Margin of Safety, (EPA 1974) at http/Avww.nonoise.orgdibrary/lev-els74Zlevels74.htm.15
[¶ 44.] The trial court failed to consider that noise levels double every ten decibels. Mid States Coalition for Progress v. Surface Transp. Bd., 345 F.3d 520, 535 (8thCir.2003). Fifty-five decibels, therefore, is twice as loud as forty-five decibels. Consequently, the noise in Atkinson’s apartment at 70-75 decibels is about six to eight times the level that the EPA determines would be free from “annoyance” and “interference.” Clearly, it is a nuisance.
[¶ 45.] Other residents from Atkinson’s apartment complex also testified about the noise from Tour Ice.
[¶ 46.] Tom Cline, whose apartment faces Tour Ice, remarked:
But with the noise from that compressor, which is a — -which is not a noise you get used to because it’s a constant. It’s an off thing you can’t get used to. I can’t get used to it at least. The compressor runs for a period of time and then it turns off and you’re laying there trying to go to sleep and you say, “My God ain’t this nice,” you know. And you no more just about say “I’m ready to go to sleep,” and that thing kicks on again.
Cline compared the noise of the Tour Ice fans with that of a C-130 aircraft.16
[¶ 47.] Mary Conode’s bedroom faces the compressor unit of Tour Ice. She testified that she was “awakened” at 4:15 a.m. every morning in the summer of 2003. Additionally, she testified that Tour Ice has not gotten any quieter in the three years she has lived in her apartment.
[¶ 48.] Stephen Ellwein, the majority owner of Tour Ice, admitted that his business is noisy. When asked whether he found anything objectionable about Atkinson’s position, Ellwein responded, “Well ... we do generate noise.” Ellwein testified that the semi trucks were the noisiest aspect of the business.
[¶ 49.] It is clear that the noise generated by Tour Ice is an unreasonable interference with Atkinson’s leasehold. People *804should not be expected to live or sleep through noise that is comparable to vacuum cleaners or freight trains. The circuit court erred as a matter of law when it held that the noise generated by Tour Ice does not constitute an unreasonable interference.17
[¶ 50.] The circuit court relied on Patterson v. Robinson to support its holding. 620 So.2d 609 (Ala.1993). Specifically, the court cited Patterson for the proposition that “60 to 70 decibels are in the normal range for communities.” Thus, the circuit court found that Atkinson’s 70-75 reading was “in the top of the normal range but nowhere near a danger reading.”
[¶ 51.] A closer reading of Patterson demonstrates that the trial court’s reliance is flawed. First, the 60-70 normal range for communities is the standard when measured outdoors. Indeed, the Supreme Court of Alabama upheld the trial court’s order directing the defendants to keep noise at a 78 decibel standard outside the plaintiffs home and a 58 decibel standard indoors. Patterson, 620 So.2d at 612. Atkinson, on the other hand, had readings between 70-75 decibels inside her apartment. (emphasis added). As a result, the circuit court’s finding in this regard is clearly erroneous. -
[¶ 52.] Second, the “danger zone” referred to by the circuit court was the decibel level in which safety standards are triggered in an industrial setting. A requirement that noise approach “the industrial danger zone” before constituting an unreasonable interference has no place in the residential setting. To require the noise in one’s bedroom to reach a level where OSHA would be recommending ear plugs for an assembly line worker is error.
[¶ 53.] Third, the noise in Atkinson’s apartment is about six to eight times the permissible level that the EPA determines would be free from “annoyance” and “interference.”
[¶ 54.] In summary, Atkinson has met her burden of proof on the nuisance claim and is entitled to a remedy. The circuit court’s finding regarding 70-75 decibels to be in “the top of the normal range” is clearly erroneous because it misconstrued the decibel level and Patterson. The trial court’s requirement that noise reach the industrial danger zone should not apply to private residences in a nuisance action. As a result, the circuit court erred as a matter of law when it did not find the City’s determination of the existence of a nuisance to be “palpably unreasonable.”18
Interpretation of Zoning Ordinances
[¶ 55.] “We interpret zoning laws according to the rules of statutory construction and any rules of construction included in the enactments themselves.” City of Marion v. Rapp, 2002 SD 146, ¶ 5, 655 N.W.2d 88, 90 (citing Cole v. Bd. of Adjustment of City of Huron, 2000 SD 119, ¶ 7, *805616 N.W.2d 483, 485). “The interpretation of an ordinance presents a question of law reviewable de novo.” Id. “When interpreting an ordinance, we must assume that the legislative body meant what the ordinance says and give its words and phrases plain meaning and effect.” In re Frawley Planned Unit Development, 2002 SD 2, ¶ 6, 638 N.W.2d 552, 554 (emphasis added).
[¶ 56.] Manufacturing businesses are not permitted in Pierre’s central business district. Pierre City Ord. § 2-6-103 (1970). The 1970 ordinance, however, does not define the term “manufacture.” Tour Ice has not received a variance from the City of Pierre to manufacture ice in the district. Thus, if Tour Ice is a “manufacturing” business, it is operating unlawfully.
[¶ 57.] Because the term “manufacture” is undefined by the zoning ordinance, we must give it its plain and ordinary meaning. Frawley Planned Unit Development, 2002 SD 2, ¶ 6, 638 N.W.2d at 554. The AmeRican HERITAGE Dictionaby defines the term manufacture as “to make or process (a product), esp. with industrial machines.” 826-27 (3rd ed 1997). Neither the trial court nor the majority opinion claims that ice is not a “product.”
[¶ 58.] In regards to industrial operation, Tour Ice uses machines to freeze water and package it into both block and cube form. The process is performed with fans, conveyors, compressors, etc. Tour Ice produces, packages, and ships approximately 100,000 pounds of ice per day. Undoubtedly, Tour Ice is engaged in manufacturing ice in the plain and ordinary sense of the word “manufacture.”
[¶ 59.] Instead of adhering to our longstanding principles of statutory interpretation, the majority opinion meanders back through the decades to find two obscure tax cases that examine the word “manufacture” as used in tax codes. See Ballard v. Kentwood Ice Mfg. & Bottling Works, Ltd., 147 La. 583, 85 So. 598 (1920) (business that makes and sells ice is a manufacturer and therefore exempt from license tax.); Commonwealth v. American Ice Co., 406 Pa. 322, 178 A.2d 768 (1962) (foreign corporations engaged in making ice were not entitled to “manufacturer’s” franchise tax exemption.). The majority opinion concludes that since there is a “division among courts” the City’s interpretation is not unreasonable.
[¶ 60.] The majority opinion’s holding ignores the plain meaning of “manufacture” and is devoid of common sense. Ell-wein certainly believed Tour Ice was in the manufacturing business. At trial, Ellwein testified that “we [Tour Ice] manufacture ice. I mean, that’s a given.” When asked about the noise generated by Tour Ice, Ellwein remarked, “the manufacturing itself isn’t the noisy part, it’s the eooling[.]” In describing the entire process, Ellwein testified, “after we manufacture the ice the ice is held in freezers.” Therefore, Tour Ice is not only manufacturing unlawfully in the central business district, but is unlawfully warehousing as well.
[¶ 61.] Richard Melcher, the prior owner of Tour Ice, believed Tour Ice was in the manufacturing business as well. Mel-cher had to apply for a building permit before Tour Ice moved to its current location. In two places on the permit application Melcher conspicuously wrote that he was applying for a special permit for “ice manufacturing.” See copy of Plaintiffs Exhibit “1 ” attached hereto.
[¶ 62.] Courts have used the word “manufacture” to describe the process of making and selling ice. See Empire Storage & Ice Co. v. Giboney, 357 Mo. 671, 210 S.W.2d 55, 55 (1948) (plaintiff “also manufactures and sells ice[.]”); Jefferson Ice & Fuel Co. v. Grocers Ice & Cold Storage Co., 286 S.W.2d 80, 81 (1955) (“Both of *806these companies are in the business of manufacturing ice.”); Hebert v. Loveless, 474 S.W.2d 732, 733 (Tex.Civ.App. 1971) (“The ice was manufactured by the defendant ice company-”); Justice Sutherland, writing for the United States Supreme Court, remarked, “It has been said that the manufacture of ice requires an expansive plant beyond the means of the average citizen.... ” New State Ice Co. v. Liebmann, 285 U.S. 262, 278, 52 S.Ct. 371, 76 L.Ed. 747 (1932). Justice Brandéis, writing in dissent, noted, “Nor can the Court properly take judicial notice that, in Oklahoma, the means of manufacturing ice for private use are within the reach of all persons who are dependent on it.” Id. at 289, 52 S.Ct. 371.
[¶ 63.] Certainly Ellwein, Melcher, and the authors of these writings are not all semantically challenged. Instead, they were using the word manufacture in its plain and ordinary meaning. Only the Pennsylvania Supreme Court and, now the majority opinion, claim that the making of ice commercially is not “manufacturing.”19 [¶ 64.] Because the city’s interpretation is at odds with the plain meaning of the term “manufacture,” the circuit court should be reversed on this issue. We should remand to the trial court to reach the correct decision and determine the proper remedy.
MEIERHENRY, Justice (dissenting).[¶ 65.] I join Justice Sabers’ dissent and write specially.
[¶ 66.] Atkinson has sufficiently established a basis for both a nuisance action against Tour Ice and a mandamus action against the City. The City should not get a free pass because it ignored the manufacturing nature of this business and its own zoning ordinances both before and after 1999.
[¶ 67.] First, no matter how the City wants to redefine the business of Tour Ice, it is clearly engaged in manufacturing. Not only does the owner openly admit he is in the business of manufacturing and *807storing ice, but the evidence also supports that conclusion. Particularly telling is the owner’s testimony in which he says, “Just [] so everybody understands what we’re talking about, we manufacture ice. I mean, that’s a given.” Additionally, the application for a building permit clearly indicates that the “use of the building” was “ice manufacturing.”
[¶ 68.] Second, whether the business is manufacturing, warehousing, or assembly and packaging, it is a nonconforming or excluded use under the City’s zoning ordinances. In its brief, the City does not dispute that Tour Ice presents a nonconforming use. The trial court determined that the business activity fell within the zoning category of “assembly and packaging,” which is a nonconforming use. In spite of this characterization, the court determined that the “conditional use permit [was] not needed [because] the existing use by Tour Ice predate[d] the 1999 ordinance,” and that “[t]he City’s interpretation that making ice is not manufacturing will not be disturbed where the existing use by Tour Ice predates the 1999 ordinance.” The trial court reasoned that because the City has always failed to enforce the zoning ordinance, its present failure to enforce its ordinance is excused. Such reasoning is faulty. Grandfathering in a mistake should not justify enlarging the mistake at the expense of the citizens of the City. Additionally, this manner of applying prior existing use concepts is contrary to the City’s Zoning Ordinance Section 12-1-110 and our previous holdings.
[¶ 69.] Section 12-1-110 allows a prior lawful use to continue but disallows “extension of the building for a non-conforming use.” Additionally, we have consistently held that grandfathered nonconforming uses are not to be expanded. We said:
The policy towards nonconforming uses is to prevent their expansion beyond the bounds of the nonconforming use at the time of the effective date of the zoning ordinance. Even moderate expansion to meet new needs or to keep up with competition are (sic) generally not allowed. The policy aims toward eventual phaseout of nonconforming uses and seeks to do so as quickly as possible.
Brown County v. Meidinger, 271 N.W.2d 15,18-19 (S.D.1978) (citations omitted).
[¶ 70.] Manufacturing was not a conforming use in this zone under any of the zoning ordinances — before or after the 1999 ordinances. At no time did the City grant the business a variance or use permit. In fact, on two occasions after 1999, the City allowed expansion of the facility'— still not identifying the “use” of the business as a prohibited or non-conforming use. Regardless of whether this business is characterized as manufacturing, warehousing, or packing and assembling, it is not a conforming use. The City consequently has failed to enforce its own ordinances.
[¶ 71.] In its brief, the City admits that the remedy of a writ of mandamus is appropriate “when the duty to act is clear.” The City, relying on Hentz v. City of Spearfish, argues that a writ cannot issue to undo a completed act. 2002 SD 74, 648 N.W.2d 338. The completed act, the City argues, is the granting of the building permit to Tour Ice on two occasions for expansion. Its own witness, however, testified that a building permit is not a substitute for a “use” permit under the zoning statutes.
[¶ 72.] The City is responsible for enforcing its own zoning ordinances. By failing to apply the ordinances, it has failed to act. Failure to act when a clear duty exists is a basis for mandamus. In order to avoid the City’s duty, City officials overlooked the true nature of the business. The City official testified he had deter*808mined that the business was not a manufacturing business, that it was a permitted use in the central business district, and that it did not need a conditional use permit. When pressed, the City official said he did not know whether the expansion for which the building permits were issued presented warehouse-type scenarios. He said he called them “parking garages.” The trial court rejected the official’s characterization as a “parking garage” and determined, instead, the building’s use was assembly and packaging. Consequently, even under the court’s determination, it was a non-conforming use requiring a mandamus to issue.
[¶ 73.] The City’s omission in this case harmed both the business owner and the neighbors. The neighbors were subjected to unlawful manufacturing noise; the business was subjected to a nuisance lawsuit. The underlying theory of a zoning plan is to prevent these kinds of actions. I would reverse and remand for the trial court to issue the writ against the City and to craft an appropriate remedy for the nuisance action.
*809[[Image here]]
. The evidence is sufficient to find a nuisance under either statutory nuisance as defined in SDCL 21-10-1 or common-law nuisance.
. As the circuit court accurately pointed out, a decibel or "dBA” is a unit for measuring sound levels, approximately equal to the smallest difference in loudness detectable by the human ear. The range runs from one dBA, the faintest audible sound, to 130 dBA, the loudest audible sound. Souders v. Washington Metropolitan Area Transit, 48 F.3d 546, 548 n. 1 (D.C.Cir.1995).
. The EPA explains that these numbers are not to be regarded as rigid standards, but a recommendation of what the agency believes "are requisite to protect the public from adverse health and welfare effects."
. The majority opinion claims it is unfair to examine E.P.A. studies on noise levels because "... these materials were never presented to the trial court and thus were never considered ...” by it. The trial court's written decision, however, is laden with opinions and factual findings as to what constitutes appropriate decibel levels. The trial court went so far as to rely on expert testimony, reproduced in an Alabama appellate .case, as to what decibel range is normal for communities. As explained in ¶ 12 supra, the trial court misread the case upon which it relies.
Because the trial court made extensive scientific findings as to appropriate sound levels, it is not "unfair" to examine whether those findings were consistent with the report of a federal agency on the same subject matter. In fact, the Eighth Circuit has referenced the same materials in determining whether an agency's methodology pertaining to noise calculations was arbitrary and capricious. Mid States, 345 F.3d at 537. Clearly it was fair game.
.The C-130 Hercules is a massive transport plane utilized by the United States Air Force.
. The concurring opinion claims I am conducting "an appellate retrial of the facts.” The concurrence fails to recognize that, for the most part, I am simply restating the trial court's findings of fact. As outlined in ¶¶ 2 and 3, supra, the trial court found the following facts: (1) on average, the noise in plaintiff's apartment is comparable to that of "a vacuum cleaner;” (2) noise levels in plaintiff's apartment occasionally reach the same noise level as that of a "freight train,” and (3) the noise is generated at random, "24 hours per day 7 days per week.” I am not retrying the facts, I am-relying on them. The facts show that the trial court's legal determination was in error. No resident of any South Dakota city should have to tolerate the level of noise found by the trial court.
. The record reflects that Atkinson met her burden on the intentional element. Ellwein was put on notice on numerous occasions that his company's actions were causing excess noise in Atkinson's apartment.
. The concurring opinion avoids giving the term "manufacture” its plain and ordinary meaning. Instead, the concurrence would defer to the City’s interpretation because Atkinson failed to introduce the 1970 ordinances into evidence and, according to the concurrence, "there is no evidence of that ordinance in the record.” Concurrence ¶ 36. The concurrence claims that the rules of deference are therefore dispositive.
I do not agree that there is no evidence of the 1970 ordinance in the record. Norm Weaver, the city official charged with enforcing and interpreting zoning ordinances, engaged in the following exchange with plaintiff's counsel concerning the 1970 ordinances:
Plaintiff’s Counsel: You’ve heard the discussion here regarding what was allowed or what was restricted prior to the '99 changes as to manufacturing being a restricted use. Do you regard the activities carried on by Tour Ice as being manufacturing as interpreted under the zoning ordinances?
Weaver: To us — and we — when Mr. Mel-cher moved ... we did not consider making ice manufacturing and, you know, the use was previously permitted and so we based all of our understanding, I guess, from — from that point on, and I guess we have not changed our mind.
Thus, Mr. Weaver does not dispute that the 1970 ordinances prohibited manufacturing in the central business district. Neither do any of the parties. Nor did the trial court. Nor does the majority opinion. Why in the world would the majority opinion strain to conclude making ice was not manufacturing if manufacturing was not prohibited by the ordinance? It is not necessary to reproduce the ordinance when no one disputes what it says.
Even if the City is afforded the highest degree of deference, its interpretation ■ still fails to make basic sense. The freezing of water, cutting, packing, storing, and shipping of 100,000 pounds of ice per day constitutes manufacturing in the plain and ordinary sense of the word.