LAKE HENDRICKS IMPROVEMENT ASSOCIATION; CITY OF HENDRICKS, MINNESOTA; and NORRIS PATRICK, Petitioners and Appellants,
BROOKINGS COUNTY PLANNING & ZONING COMMISSION; BROOKINGS COUNTY PLANNING & ZONING COMMISSION SITTING AS THE BROOKINGS COUNTY BOARD OF ADJUSTMENT; MICHAEL CRINION; KILLESKILLEN, LLC; and LC OLSON, LLP, Respondents and Appellees
On Motion January 7, 2016
FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT
BROOKINGS COUNTY, SOUTH DAKOTA. THE HONORABLE VINCENT A.
A. PETERSON REECE ALMOND of Davenport, Evans, Hurwitz &
Smith, LLP Sioux Falls, South Dakota, Attorneys for
petitioners and appellants.
J. DONAHOE, Sioux Falls, South Dakota, Attorney for
respondents and appellees Michael Crinion and Killeskillen,
Justice. GILBERTSON, Chief Justice, and SEVERSON, WILBUR, and
KERN, Justices, concur.
[¶1] Petitioners/appellants Lake Hendricks
Improvement Association, City of Hendricks, Minnesota, and
Norris Patrick (collectively referred to as " City"
) move to dismiss a notice of
review/cross-appeal filed by Michael Crinion and
Killeskillen, LLC (collectively referred to as "
Developers" ) because Developers failed to serve their
notice of review on appellee LC Olson, LLP ("
Owner" ). We dismiss Developers' notice of
review/cross-appeal. However, we reserve ruling on the
question whether Developers may argue standing as a
jurisdictional issue regardless of the status of their notice
and Procedural History
[¶2] Developers desire to build a dairy on
Owner's property in Brookings County. Developers have an
agreement to purchase Owner's property contingent on
approval of the dairy by government authorities. Developers
obtained a conditional use permit for the dairy from
Brookings County. City then filed a petition for a writ of
certiorari in circuit court challenging the permit. The
circuit court affirmed the granting of the permit. City then
appealed to this Court, serving the various parties,
including Owner, with its notice of appeal. Developers
subsequently filed a notice of review to challenge City's
standing. Developers concede, however, that they did not
serve their notice of review on Owner. City therefore filed a
motion to dismiss Developers' notice of
review/cross-appeal. City relies on the rule that "
[f]ailure to serve a notice of appeal on a party before the
time for taking an appeal has expired is fatal to the appeal
and requires its dismissal." In re Reese Tr.,
2009 S.D. 111, ¶ 14, 776 N.W.2d 832, 836 (applying SDCL
15-26A-4(3)). Developers raise several arguments in
resistance to City's motion to dismiss. We address
Developers' arguments in the order in which they were
Whether Owner was a party who was required to be served with
the notice of review.
[¶3] Developers argue that Owner was not a
party required to be served
with the notice of review because Owner did not appear in the
circuit court and did not take any action to protect its
interests at that level. As to the question of "
parties," City's original petition for a writ of
certiorari specifically alleged that " [Owner] . . . is
the entity that owns the property which is the subject to the
CUP [ i.e., conditional use permit] application . .
. [Owner] is named as a Respondent in this Petition, because
it has an interest in the outcome of this action."
Additionally, Owner was personally served with the petition
by serving a partner; Owner was named as a party in the
captions of the later pleadings; and although ...