Landowners sue to put prison site in front of county zoning board

State immunity from local scrutiny hinges on 46-year-old Janklow opinion

By: - November 6, 2023 4:44 pm
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)

The state should ask for Lincoln County’s permission before building a new prison there, according to a lawsuit from a group of landowners.

The lawsuit was filed in Lincoln County late last week by a recently formed group called “Neighbors Opposed to Prison Expansion” — or the acronym NOPE for short — as well as four individual neighbors aligned with the group.

On Oct. 6, the state Department of Corrections announced its plans to build a 1,500-bed penitentiary in rural Lincoln County as a replacement for the antiquated penitentiary in Sioux Falls. 

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The site’s long-term use as farmland is a key point argued in the landowners’ lawsuit. They contend that the county’s zoning master plan never envisioned – and does not permit – what amounts to an industrial property on the land.

The lawsuit demands that the state release more information on its search for an appropriate prison site, and that the DOC be either required to request a conditional use permit from the county or seek a ruling on its right to build from a judge before proceeding with prison construction.

Either option would offer landowners – who were not given notice about a potential prison near their respective properties – an opportunity to voice their opposition.

A conditional use permit, if issued by the county, could then be appealed for review by a judge.

“We want to encourage the state to appear before the county planning commission, which would give us the fundamental rights that we have as landowners to appear, examine witnesses and the right of appeal,” said A.J. Swanson, the Canton-based attorney representing the landowners.


State: Local zoning does not apply

The state contends that it needn’t seek the approval of county officials, largely because of a 46-year-old opinion from former Gov. William Janklow. Janklow was serving as the state’s attorney general at the time, and his letter was meant to clarify a clause in the state Constitution on the state’s immunity from lawsuits.

“The Legislature shall direct by law what manner and in what courts suits may be brought against the state,” the clause reads.

Ten years before Janklow penned his now-disputed letter of legal guidance, lawmakers passed a bill giving counties the right to manage land use through zoning. But that law didn’t specify whether county zoning rules would apply to the state.

Janklow’s opinion, therefore, was not built on express legislative guidance or South Dakota Supreme Court precedent. Instead, Janklow wrote, it was crafted based on accepted practices and legal doctrines in place in other states, as well as the immunity clause in the state Constitution.

Janklow’s letter, referred to in the lawsuit as the “general rule,” essentially says the state can assert eminent domain and sidestep county zoning laws. In the context of his letter, the state was free to build a satellite dish for its public broadcasting system in Vermillion without adhering to that city’s zoning rules.

The prison site lawsuit argues that Janklow’s “general rule” has never been blessed by the state Supreme Court as a controlling doctrine for disputes over land use in matters involving state entities, nor has such a right been explicitly established by lawmakers.

“We find no Legislative direction that the State may just do as it wishes,” the complaint says.

Landowners: Make the state comply

Among other demands, the plaintiffs in the lawsuit want a judge to determine if Janklow’s guidance nearly five decades ago ought to apply, or whether the courts ought to weigh the state’s interests in the construction of a prison against the long-term planning goals of the county.

That could take the form of a conditional use permit hearing, Swanson told South Dakota Searchlight, or be considered by a judge using a “balance of interests” test to determine whether the state made a good faith effort to select the best possible site.

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Swanson argues that by the state’s own request for proposal for a site – which included proximity to an interstate and existing roadways – the Lincoln County site falls short.

The cost to build infrastructure like roads and water lines works against the state’s assertion that the land was a good deal for taxpayers, he said. The site is about 15 miles south of Sioux Falls.

“They’re putting it way out in the country, where it’s even more costly, because distance and space are the primary factors in why infrastructure costs so much,” Swanson said.

The DOC has said the 320-acre site was the best option in part because the state already owned the land, which had previously been held in trust and leased for farming, with the lease payments used to support South Dakota schools. The DOC pledged to purchase it for $7.9 million from another state agency, the Office of School and Public Lands, to convert it from agriculture to a prison site (the money would go into a trust fund supporting schools). 

The DOC did not immediately respond to a request for comment on the lawsuit on Monday, but DOC Secretary Kellie Wasko has addressed some of the issues raised by the lawsuit through public statements and letters. 

“This site is the best choice for a modern correctional facility that supports our state’s public safety needs, minimizes the impact on community growth, and keeps us close to available workforce,” Wasko said in a press release announcing the prison site.

In a letter to Swanson now included in the court file, Wasko wrote that the state’s position supports the agency’s ability to sidestep local zoning rules.

“… neither zoning ordinances nor land use approvals are required for state-owned property … this is not only the department’s position, but the state’s long-standing position,” Wasko wrote, in addition to citing a state law allowing the DOC to condemn private land.

She also wrote that land near the city of Sioux Falls was quite difficult to find during the 15-month search for a site, and that “many landowners declined to even discuss selling their land.”

Lawmakers set aside $323 million last winter for the penitentiary project.


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John Hult
John Hult

John is the senior reporter for South Dakota Searchlight. He has more than 15 years experience covering criminal justice, the environment and public affairs in South Dakota, including more than a decade at the Sioux Falls Argus Leader.