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State: Bowing to local zoning in prison dispute ‘would be an absurd result’

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State: Bowing to local zoning in prison dispute ‘would be an absurd result’

Jan 22, 2024 | 8:41 pm ET
By John Hult
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State: Bowing to local zoning in prison dispute ‘would be an absurd result’
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The overflow room for a Jan. 22, 2024, court hearing in Canton about the proposed site of a new state penitentiary. (John Hult/South Dakota Searchlight)

CANTON — The notion that the state of South Dakota needs county permission to build a state penitentiary is absurd, a lawyer representing the state Department of Corrections said Monday.

That argument from Assistant Attorney General Grant Flynn came during a Monday hearing at the Lincoln County Courthouse in a lawsuit that aims to scuttle construction of a new state penitentiary on the state’s selected site 15 miles south of Sioux Falls.

A sign opposing the proposed prison site in Lincoln County, SD, as seen at a community meeting in Harrisburg, SD on Dec. 21, 2023. (Josh Haiar/South Dakota Searchlight)
A sign opposing the proposed prison site in Lincoln County, as seen at a community meeting in Harrisburg on Dec. 21, 2023. (Joshua Haiar/South Dakota Searchlight)

The state has asked Judge Jennifer Mammenga to dismiss the lawsuit from a group called “Neighbors Opposed to Prison Expansion,” or NOPE.

The lawsuit was born of opposition to the rural Lincoln County location of the planned 1,500-bed penitentiary, but the case could have serious, long-term implications for state capital projects if the landowners succeed.

For decades, the state has worked from the understanding that it has no legal need to comply with county or city rules when building on its own property.

But the landowners say that understanding is built upon a weak legal history.

The “general rule” giving the state the power to ignore localities has its roots in an advisory opinion from former Attorney General Bill Janklow. The landowners are challenging that opinion’s validity, as there is no state law or Supreme Court case explicitly exempting the state from adhering to local zoning rules.

But law and order is a “sacred” duty of the state in its constitution, Flynn said. The state also has a law on the books that grants condemnation power to the DOC for the purpose of building prisons. A ruling for landowners, who want the state to ask the county for a conditional use permit to build on its chosen site, “would be an absurd result,” Flynn said.

Blocking a prison in an area filled with farmsteads and acreages in the interest of protecting the county’s zoning master plan “may be a noble goal,” Flynn said, but it’s not a solid basis for a legal claim.

Counties only exist as a government entity because the state created them. 

“The master cannot be beholden to its creation,” he said.

Flynn also referred to counties as “children” of the state at one point, a line that elicited audible gasps from many of the 40-odd NOPE supporters packed into an overflow room for the hearing.

The courtroom was full long before the hearing began at 3:30 p.m.

Ernest Stratmeyer, whose 95-year-old mother lives on a family farm about 2 miles from the proposed penitentiary site, said afterward he felt “belittled” by that line of argument.

Stratmeyer said he’s not sure what will become of his family’s land if the prison is built, but “the value of it will change.” 

“What you get around a penitentiary is not high-end,” Stratmeyer said. 

Landowners: State should make its case to county

The state already owns the land it has selected for the new prison, which will replace the aging state penitentiary in Sioux Falls. DOC Secretary Kellie Wasko has described the building, which predates statehood, as outdated and unsafe for inmates and staff alike.

The land in dispute had been leased to farmers until last year, when the Department of Corrections took ownership of the property by way of a payment to the previous deed-holder, the state Office of School and Public Lands.

From left, Pennington County Sheriff Brian Mueller, South Dakota Secretary of Corrections Kellie Wasko and Ryan Brunner, senior policy adviser and director of legislative relations for Gov. Kristi Noem, participate in a groundbreaking ceremony for a women's prison Oct. 16, 2023, in Rapid City. (Seth Tupper/South Dakota Searchlight)
From left, Pennington County Sheriff Brian Mueller, South Dakota Secretary of Corrections Kellie Wasko and Ryan Brunner, senior policy adviser and director of legislative relations for Gov. Kristi Noem, participate in a groundbreaking ceremony for a women’s prison Oct. 16, 2023, in Rapid City. (Seth Tupper/South Dakota Searchlight)

The landowners argue that the fields should stay fields, and point to the county’s zoning plan as proof. It lists the area as agricultural for the foreseeable future.

A.J. Swanson, the lawyer representing the Lincoln County landowners, told Judge Mammenga that none of the laws or court decisions presented by Flynn give DOC Secretary Wasko carte blanche to ignore the county.

Flynn pointed to House Bill 1017 from the 2023 legislative session, for example. That bill allocated funds for the prison project, but Swanson said it didn’t clear a path for Wasko to disregard Lincoln County’s regulatory framework.

“She has not been given the authority to ignore local zoning,” Swanson said.

As to the law giving the DOC condemnation power for prisons, Swanson said “so what?” Eminent domain, he said, “has nothing to do” with what the proper zoning test for a state project ought to be.

In his rebuttal, Flynn said every response to the state’s arguments amounted to “so what? We still don’t want a prison here.”

Outside of the zoning sphere, he said, there is plenty of legal precedence that says state law trumps local law. There may not be a Supreme Court case in South Dakota directly tied to zoning, but the state’s high court has ruled that state laws overrule local laws that are more lenient or strict than state law provides.

“Disregard and disinterest do not change the reality of the laws we live under,” Flynn said.

Even setting aside the issue of which government entity is subordinate in matters of zoning, Flynn argued that the landowners have no legitimate cause of action against the state at this point.

No one has been hurt by the prison, he said, which hasn’t been built and won’t be for years. The landowners say property values will decline, he told the judge, but did not offer any proof.

“This is not supported by any data or analysis,” Flynn said.

The prison might not be welcome, he said, but it takes more than that to restrict the state’s duty to provide for law and order.

“No one wants a prison in their backyard,” he said. “But no one wants to live in a state without a prison.”

Opponents react

Tyler and Krista Johnson were among those listening to the hearing from the overflow room. The Johnsons are building a home about a mile from the prison site, and they said they’d saved up more than a decade to buy the land.

“We’re not even done yet,” Tyler Johnson said.

The site selected for the new South Dakota State Penitentiary in Lincoln County. (John Hult/South Dakota Searchlight)
The site selected for the new South Dakota State Penitentiary in Lincoln County. (John Hult/South Dakota Searchlight)

It took more than savings to secure a place in the Lincoln County countryside, they said. Land in the area – especially land with a building eligibility – is snatched up quickly. Krista said it’s “a prime location,” in part because it offers a slice of rural life to those who live there.

“That’s why we chose the place we did,” she said. “It was zoned for agriculture.”

Madeline Voegeli, who leads NOPE, said after the hearing that the group intends to appear at the Lincoln County Commission meeting Tuesday morning to call on commissioners to support a statement of support for a different prison site.

The issue of overriding local authority, Voegeli said, has drawn concerned citizens to the group from well outside the 3-mile radius of the prison site.

The state’s “lack of transparency” troubles the prison’s potential neighbors, but Voegeli said the issue of sidestepping locals is larger than one building project.

“We’re asking questions that are important and need to be answered,” she said.

Judge Mammenga said she would issue a written ruling in the coming weeks.