Lake Hendricks Improvement Ass'n v. Brookings County Planning & Zoning Commission
877 N.W.2d 99
S.D.2016Background
- Developers (Crinion & Killeskillen, LLC) sought to build a dairy on LC Olson, LLP’s property and had a purchase agreement contingent on permit approval.
- Brookings County granted a conditional use permit (CUP); Lake Hendricks Improvement Ass’n, the City of Hendricks (MN), and Norris Patrick (collectively "City") filed a certiorari petition in circuit court challenging the CUP.
- LC Olson, LLP (Owner) was named and served as a respondent in the circuit-court proceedings but did not actively participate at that level.
- The circuit court affirmed the permit; City appealed to the South Dakota Supreme Court and served Owner.
- Developers filed a notice of review (cross-appeal) contesting City’s standing but failed to serve that notice on Owner.
- City moved to dismiss Developers’ notice of review for lack of service; the Supreme Court dismissed the notice of review and reserved the separate question whether standing may be raised as a jurisdictional issue despite the defective notice of review.
Issues
| Issue | Plaintiff's Argument (City) | Defendant's Argument (Developers) | Held |
|---|---|---|---|
| Whether Owner was a party required to be served with notice of review | Owner was named/responded in circuit court and remained a party; thus must be served | Owner did not appear at trial, so service unnecessary | Owner was a party; service required and failure to serve is fatal |
| Whether SDCL 15-6-5(a) excused service on Owner | SDCL 15-26A governs appeals and requires service on all other parties; §15-6-5(a) inapplicable | §15-6-5(a) excuses service on parties in default for failure to appear | §15-6-5(a) does not excuse service; appeals rules control |
| Whether aligned interests or practical unity with Owner excused service | Rule requires service on each party regardless of aligned interests | Aligned interests or joint outcome make service unnecessary | Alignment does not excuse service absent joint representation; no shared counsel here |
| Whether Developers may nonetheless argue City’s standing on jurisdictional grounds despite defective notice of review | Standing is jurisdictional; court should reach it regardless of defective cross-appeal | Defective notice of review deprives the Court of jurisdiction to consider cross-appeal issues | Court reserved ruling on whether standing may be argued despite dismissal of notice of review; further briefing ordered in related appeal |
Key Cases Cited
- Morrell Livestock Co. v. Stockman’s Commission Co., 77 S.D. 111, 86 N.W.2d 533 (S.D. 1957) (service of notice of appeal required on all adverse parties, appearance/default immaterial)
- Reese Tr. v. (In re Reese Trust), 2009 S.D. 111, 776 N.W.2d 832 (S.D. 2009) (failure to serve notice of appeal on a party is fatal; applies SDCL appeal-service rules)
- In re B.C., 2010 S.D. 59, 786 N.W.2d 350 (S.D. 2010) (continued application of service-on-parties rule for appellate jurisdiction)
- Estate of Flaws, 2012 S.D. 3, 811 N.W.2d 749 (S.D. 2012) (representation by same attorney for appealing and nonappealing party equates to service on nonappealing party)