State law trumps county ordinances, Lincoln County judge rules
By: John Hult,
SD Searchlight
A Lincoln County judge has dismissed a lawsuit that claimed state officials need a county permit to build a men’s prison.
Judge Jennifer Mammenga sided with the state Wednesday, based on arguments presented in a January hearing. A group of neighbors to the Department of Corrections’ selected site for a 1,500-bed prison complex filed the lawsuit a year ago.
The neighbors argued that the state should not be allowed to bypass the county’s rules for conditional use permits, under which entities seek approval from county commissioners to build things that fall outside county zoning rules.
Mammenga agreed with the state, which argued, among other things, that the state is not subject to the rules of local governments. Lawmakers have passed bills that fund the prison’s construction and grant authority to the DOC to spend the money and select a site, and the judge ruled that state law trumps county ordinances.
“A county by its very nature is a legislative creation, and therefore seemingly lacks the authority to preempt state law,” Mammenga wrote.
Had the group been successful, DOC officials would have been forced to seek such a permit in public hearings, at which members of the public would be allowed to voice their support or opposition ahead of a vote by county commissioners to approve or deny a permit.
Opponents respond
The neighbors who sued are part of a nonprofit group called Neighbors Opposed to Prison Expansion, or NOPE, formed to push back against the state’s plans to build on the rural site 15 miles south of Sioux Falls.
The proposed location of a men’s prison in Lincoln County.
The land is owned by the state and was leased to farmers, with proceeds helping to fund education. The DOC obtained the property about a year ago through an $8 million funds transfer. That money was transferred from the DOC into a state trust fund whose proceeds will continue to flow to K-12 schools.
A Wednesday press release from NOPE said the group is disappointed with the outcome but will respect Mammenga’s decision. The release also pledged a continued fight with the state over its prison site selection.
“We are currently evaluating the next steps and anticipate that our efforts will shift to Pierre,” the release says. “There, we will work with the Legislature to address the hasty and rushed nature of the current plans, and will continue to engage with stakeholders to address concerns surrounding the proposed location.”
The group has talked through many of its concerns in public forums. It’s also had representatives on hand for discussions of the prison project in Pierre, and for discussions in the city of Harrisburg on the possibility of the state hooking into that city’s water and sewer infrastructure to service the prison site.
Concerns raised at forums
Harrisburg would have gotten $7.1 million as a one-time payment for agreeing to service the prison, and would have collected around $500,000 a year in fees from the state.
The Harrisburg City Council ultimately rebuffed the state, but the city of Lennox has since approached the state to discuss a potential connection to that town’s water and sewer infrastructure.
The NOPE group held a public forum on the issue just outside of Lennox late last month. The Lennox City Council has yet to make a decision. The matter is up for city council discussion again on Oct. 28.
“We’re not endorsing anything at this point,” Lennox City Council Member Chad Swier said during the Sept. 26 forum. “We’re just here gathering information. We’re going to do what is best for Lennox.”
As with previous forums, the speakers’ tables left places for Gov. Kristi Noem and DOC Secretary Kellie Wasko, both of whom were invited but did not attend the forums.
Speakers at the Sept. 26 forum questioned the feasibility of infrastructure upgrades and road paving that would accompany a men’s prison, suggesting that the area could see more flooding problems from the addition of impervious surfaces in an area hit hard by last spring’s heavy rains.
Others spoke about potential safety risks to families in the event of an escape, increased traffic flow, and the potential for strain on emergency medical services in a location removed from medical facilities in Sioux Falls.
Lawmaker: ‘not a done deal’
Rep. Kevin Jensen, R-Canton, was one of two lawmakers on hand for the forum. Jensen said the new prison would be a strain on the area’s rural water system, and argued that the DOC could expand the Jameson Annex, a newer facility on the current penitentiary grounds, to suit the DOC’s space needs. The proposed men’s prison is intended to replace much of the existing Sioux Falls penitentiary, which dates to 1881.
“This is a whole lot bigger than just the location, folks,” Jensen told the crowd. “I will stand here and tell you that it is my wholehearted belief that we do not need a new prison. What we need is a little more space, and we can do that.”
When asked if the mood in the Legislature has shifted on the issue – lawmakers voted overwhelmingly in favor of funding the men’s prison – Jensen said more of his fellow elected officials are asking questions about the wisdom of the project.
Some members of the budget-setting Appropriations Committee have pushed Wasko during meetings this year about her assertions that a Jameson Annex expansion wouldn’t give the DOC enough space, as well as on the project’s price tag. Lawmakers have allocated $569 million for the men’s prison, which does not yet have a locked-in cost estimate.
“I would say right now, this is not a done deal,” Jensen said.
Rep. Karla Lems, R-Canton, said she’s hearing more questions from lawmakers on the prison project, and that the answers coming from the DOC haven’t done enough to address their concerns.
“We better make sure that we got the right location, the right building, and that this is really what is going to be right for South Dakota before we say yes,” Lems said.
EDITOR’S NOTE: This story has been updated with a clarification to accurately reflect the nature of talks between the state and the city of Lennox.
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