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Lake Hendricks Improvement Ass'n v. Brookings Cnty. Planning & Zoning Comm'n

Supreme Court of South Dakota

March 2, 2016

LAKE HENDRICKS IMPROVEMENT ASSOCIATION; CITY OF HENDRICKS, MINNESOTA; and NORRIS PATRICK, Petitioners and Appellants,
v.
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

         Considered On Motion January 7, 2016

          APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT BROOKINGS COUNTY, SOUTH DAKOTA. THE HONORABLE VINCENT A. FOLEY. Judge.

         MITCHELL A. PETERSON REECE ALMOND of Davenport, Evans, Hurwitz & Smith, LLP Sioux Falls, South Dakota, Attorneys for petitioners and appellants.

         BRIAN J. DONAHOE, Sioux Falls, South Dakota, Attorney for respondents and appellees Michael Crinion and Killeskillen, LLC.

         ZINTER, Justice. GILBERTSON, Chief Justice, and SEVERSON, WILBUR, and KERN, Justices, concur.

          OPINION

Page 100

          ZINTER, Justice

          [¶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[1] 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 of review.

         Facts 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 presented.

         1. 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

Page 101

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 ...


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