(concurring specially in part and dissenting in part).
[¶ 42.] 1. On Issue 1, I would reverse on liability and remand for trial.
[¶ 43.] The trial court incorrectly concluded that our holding in Tri County I was conclusive on the question of liability for a § 1983 claim. While there may exist an overlap in the evidence offered to satisfy the “truly irrational” standard, our holding in Tri County I, that the County acted in an “arbitrary and capricious” manner, does not automatically satisfy this burden. See Chesterfield, 963 F.2d at 1104. This issue needs to be determined by the trial court on remand as the right to a jury trial has been waived.
[¶ 44.] On remand, the trial court has the onerous burdep of traversing the path the majority opinion has laid before it. The trial court must be wary because this is not a case of “simple rote allegations that the zoning decision is arbitrary and capricious.” Lemke, 846 F.2d at 473 (Arnold, J., concurring). The facts underlying our holding in Tri County I must rise to the level of the “truly irrational” standard and not merely an arbitrary and capricious action to create liability for the County in a § 1983 claim. Yet that does not mean our determination in Tri County I that the actions of the County were arbitrary and capricious negates the possibility of such a showing. In fact, they substantially support it.
[¶ 45.] A County is bound by the actions of its duly elected commissioners. See McQuillin, Municipal Corporations § 26.81.20 (3d ed. 1995) (discussing the validity of subsequent actions by commissioners). Therefore, a subsequent reversal of a prior decision by newly elected commissioners is clearly wrong, “arbitrary and capricious.” These facts under Chesterfield go a long way to “give rise to a violation of rights secured by the Constitution,” even if it does not do so “automatically.” See Chesterfield, 963 F.2d at 1104. Therefore, even if not “automatically” “truly irrational” and subject to summary judgment by the court, it is prima facie evidence for the trial court in this case.
[¶ 46.] Therefore, to show that a protected property interest exists, it is only necessary for Tri County Landfill to show “a lack of discretion on the part [of Brule County to deny the issuance of the permit].” See Villager Pond, Inc. v. Town of Darien, 56 F.3d at 379. The majority’s statement that “[p]rior decisions from an elected official’s successor in no way binds the elected official currently occupying the elected position” is wrong. While it is beyond dispute that incoming officials can change “policies, procedures, and even key personnel of their predecessors ... and implement their own policies” they cannot ignore a constitutionally protected property interest if it is found to exist. On remand, this is part and parcel of the factual questions to be determined by the court.
[¶ 47.] Therefore, I concur in the result but not the language of the remand for retrial of Issue 1.
*677[¶ 48.] 2. I would reverse Issue 2 on damages based on our determination of Issue 1, require the vacation of the Judgment and remand for retrial.
[IT 49.] 3. I would reverse Issue 3 on attorney’s fees based on our determination of Issue 1 and remand for retrial.
[¶ 50.] The discretionary reasonable attorney’s fees to be awarded as part of the costs may include background reading material, if included as part of the attorney’s fee agreement with the client, Landfill. “It is settled law that attorney fees are allowed in actions ... when specifically provided by statute or agreement of the parties.” In re Rich, 520 N.W.2d 63, 69 (S.D.1994); Meisel v. Piggly Wiggly Corp., 418 N.W.2d 321, 325 (S.D.1988); Lowe n Steele Constr. Co., 368 N.W.2d 610, 614 (S.D.1985).
[¶ 51.] The burden of establishing the fee agreement and the billable time and expense thereunder is upon Landfill, (not Landfill’s attorney as attorney is not a party to the action). “[A] party filing a motion for an award of attorney’s fees bears the burden of proving by a preponderance of evidence its entitlement to such an award.” Hartman v. Wood, 436 N.W.2d 854, 857 (S.D.1989).
[¶ 52.] 4. I would reverse Issue 4 on prior litigation costs based on our determination of Issue 1, require the vacation of the Judgment, and remand for retrial.
[¶ 53.] 5. I would affirm the first part of Issue 5 on the right to jury trial because it was waived by County and would not reach the second part of Issue 5 on adding a counterclaim as that issue can best be decided on remand.
[¶ 54.] 6. I would not reach Issue 6 on the constitutionality of SDCL 34A-6-103 as it can best be dealt with on remand.
[¶ 55.] 7. I would not reach Issue 7 concerning judicial notice as it would also be best dealt with on remand.
[¶ 56.] 8.1 would affirm Issue 8 on allowing the challenge to attorney fees and costs.
[¶ 57.] 9. I would reverse Issue 9 on administrative capacity of County on the permit reapproval, based on our determination of Issue 1 and remand for retrial.
[¶ 58.] 10. I would not reach Issue 10 on additional damages because it can best be resolved on remand.
[¶ 59.] 11. I would not reach Issue 11 on the admission of numerous exhibits as it is also best dealt with on remand.