The
SD Supreme Court handed down two decisions this morning:
- CAFO conditional use permit upheld, with attorney fees
denied;
- Pre-marital agreement set aside because not signed
voluntarily by W;
Summaries
follows:
POWERS
v. TURNER COUNTY BOARD OF ADJUSTMENT, 2022 S.D. 77: This dispute evolves from an application for
a large concentrated animal feed operation (CAFO) in Turner County. The facts and history are set forth in the
opening paragraph of the Court’s opinion:
[¶1.] The Turner County
Board of Adjustment (Board) granted Steve and Ethan Schmeichel and Norway Pork
Op, LLC (Intervenors) a conditional use permit (CUP) for a large concentrated
animal feed operation (CAFO). Nearby landowners Jeffrey K. Powers and Vicky
Urban-Reasonover (Petitioners) petitioned the circuit court pursuant to SDCL
11-2-61 for a writ of certiorari challenging the legality of the CUP. Over the
objections of the Board and Intervenors, the circuit court determined
Petitioners had standing to challenge the conditional use permit but denied the
writ of certiorari. Petitioners appeal the circuit court’s denial of the writ
of certiorari. By notice of review, the Board and Intervenors appeal the issues
of standing and the circuit court’s refusal to impose attorney fees on
Petitioners under SDCL 11-2-65.
The SD Supreme Court affirmed in a 5-0 decision,
with opinion authored by Chief Justice Jensen.
As to the issue of attorney fees requested by the prevailing parties but
denied by the circuit court, the Supreme Court -- while acknowledging that there is statutory
authority for such an award -- states in surely-to-be-quoted language in ¶34, “[W]hen
the Legislature uses the word ‘may,’ fee awards are discretionary.” And, in furtherance of the example set by the
trial court, the SD Supreme Court also declined to award appellate attorney
fees.
ESTATE
OF EICHSTADT, 2022 S.D. 78: W signed a
premarital agreement which became the subject of litigation when H died. The resolution of this dispute is governed by
the South Dakota’s 1989 adoption of the Uniform Premarital Agreement Act
(UPAA), found in SDCL 25-2-16 thru -25.
The trial court held the agreement was not enforceable for two reasons:
1st, because W did not voluntarily sign it and, 2nd,
because the agreement was unconscionable. The SD Supreme Court affirmed the lower
court’s holding that W did not voluntarily sign the agreement, thereby
rendering it unenforceable. As to the
issue of unconscionability, the Court held that the lower court erred in
finding the agreement was unconscionable. The Court’s decision is a 3-1-1 ruling, with
opinion authored by Justice DeVaney.
Both Justice Kern and Justice Salter filed separate opinions in which
both express the view that the trial court’s decision was wrong altogether in
holding that the agreement was unenforceable.
These decisions may be accessed at
http://ujs.sd.gov/Supreme_Court/opinions.aspx .
