Lincoln County votes to support landowner position in prison site lawsuit

CANTON — Lincoln County officials want a judge to decide if the state has the right to build a prison in the county without public input or local review.

On Tuesday, county commissioners voted to submit a legal argument in support of the landowners who’ve sued the state Department of Corrections, though the scope of their official support is narrower than the prison opponents’ ultimate aim to force the state to pick another location.

Those who live near the proposed prison site south of Harrisburg organized as a nonprofit called “Neighbors Opposed to Prison Expansion” on Oct. 13. That was less than two weeks after the state announced the location for the prison, which is meant to house 1,200 male inmates and replace the aging penitentiary in north-central Sioux Falls.

The landowners say they weren’t consulted, that their property values will fall and that the area lacks the infrastructure to manage what will essentially amount to a small town, rapidly erected on cropland encircled by gravel roads and neighbored by little more than other cropland and rural acreages.

Most relevant to the county is the landowner lawsuit’s primary assertion: That the state is not immune to local zoning laws.

“I think they should have to abide by our local zoning requirements,” said Commissioner Michael Poppens.

On a 3-1 vote, the commissioners authorized their state’s attorney to file an amicus, or “friend of the court,” brief to make that argument.

Commissioners: County should review prison plans

The amicus brief will not make the county a party to the lawsuit or give it the right to make legal maneuvers in the case. It will, however, make clear that county officials want the courts to adopt a “balance of interests” test for situations in which the state’s plans for its land conflict with county rules.

Rather than allowing the state to do with its property what it will, such a test would define the criteria under which the state would be required to work with county officials.

Commission Chair Tiffani Landeen was the lone “no” vote on the amicus brief issue. Her concern, she said, was that taking a position in the lawsuit would complicate any zoning decisions on the prison, should any appear.

The prison doesn’t fit with the county’s comprehensive plan, which anticipates that the land around the prison site will remain agricultural. If the state loses the lawsuit, it would need to ask the county for a conditional use permit to build, and citizens would have the right to offer public input on that permitting decision.

Siding with landowners now could mar commissioners’ neutrality in a future vote on such a permit, Landeen said.

“Arguably, we’re putting ourselves in a position of having to conflict off (the decision) and stop acting like the judges we’d have to be if this comes back in front of us,” said Landeen, even as she said she “doesn’t like what the state did, either.”

Commissioner Joel Arends, however, said taking a side on the question of whether the state needs county permission isn’t the same as taking a side on the prison project as a whole.

Decisions on the merits of a conditional use permit application wouldn’t come until the state asks for one.

“We can’t say we think one side is better than the other, because that would disqualify us, and we’d essentially be abdicating our duties as commissioners,” Arends said. “However, we’re not at that point yet, because there is no pending application.”

Opponents: Give us a voice

Arends and Poppens were among the commissioners in attendance at a public meeting on the prison project that drew more than 200 people to a Harrisburg event barn last Thursday.

Opponents also brought in area lawmakers for that meeting, some of whom suggested the price of the prison could balloon well beyond the estimated $600 million due to inflation and other factors. The question of cost has also appeared about a new women’s prison in Rapid City. In her budget address, Gov. Kristi Noem said that the West River project faces a $27 million budget shortfall, though she did not offer an explanation for the increased price.

Rep. Kevin Jensen, R-Canton, told the group that “inflation is going to outrun the money we’re putting aside.”

The prison will bring costs to the county, as well, opponents say. Thursday’s meeting saw Arends talking about how Lincoln County would be on the hook to pay for legal representation for inmates charged with crimes inside the prison, were it to be built in Lincoln County.

Questions of cost also bubbled up during Tuesday’s meeting, where dozens of prison opponents packed into the commission room to urge an affirmative vote for an amicus brief in the landowner lawsuit.

Landowner Mike Hoffman referenced a series of budget adjustments made by commissioners before the prison lawsuit discussion began, during which a series of county department heads asked for additional money to cover cost overruns.

All those numbers were small compared to the $600 million construction estimate for the prison, he said, and the actual cost — to the state and the county — is unknown.

“This is a large, large, large number, and we can’t even get an answer on what that number is,” Hoffman said.

A lack of answers has been a sticking point for the prison location opponents, who’ve urged their fellow citizens to pick up signs and write lawmakers demanding accountability. DOC Secretary Kelli Wasko had planned to visit the group, but canceled their meeting after the lawsuit was filed.

Landeen pointed out on Tuesday that the lawmakers who’ve expressed support for landowners largely backed the 2023 bill that set aside $323 million for the men’s prison.

But Michelle Jensen, one of the landowners who filed the lawsuit, said the legislators who voted for the prison before site selection didn’t know the state would sidestep local officials and affected neighbors.

“In that legislation, it was more of an appropriation of funds,” Jensen said. “I don’t believe they were aware that this was going to be placed in Lincoln County without any regard for zoning.”

Mary Geraets lives on an acreage less than a mile from the proposed prison site. She begged commissioners on Tuesday to “be our voice” and throw support behind their efforts to get answers on prison site deliberations.

“We are sickened by the state’s lack of transparency,” Geraets said.

County stakes its position on authority issue

Commissioner Poppens said he’s “trying to stay neutral” on whether the prison should be built, given the possibility of a conditional use permit. But he also said he feels strongly that the county ought to at least have the right to review plans for a project the size and scope of a prison.

In its response to the Lincoln County lawsuit, attorneys for the DOC argue that state law trumps local law in situations where one conflicts with the other. They also pointed to state Supreme Court cases overruling township-level regulatory objections to county-level projects as proof that the state – a government entity larger than both townships and counties – needn’t adhere to local laws.

The landowners assert that the principle is less than settled law. Their hope is to see the courts draw clearer lines around when the state can and cannot claim immunity from local rules. A hearing on the state’s move to dismiss the case is set for Jan. 22 in Canton.

Were the county to avoid taking a position now, Poppens said, it would have no other opportunity to stake out a position in the future.

“We don’t have an alternative other than to do this,” Poppens said.

This article originally appeared on Sioux Falls Argus Leader: Lincoln County votes to support landowner position in prison site lawsuit