SIOUX FALLS, S.D. (KELO) — Should the state of South Dakota have to adhere to local zoning regulations if it’s seeking to build a prison? Neighbors in rural Lincoln County living near a proposed prison site filed a lawsuit asking that very question. Now, after a circuit judge dismissed the case and an ensuing appeal, the question went before the South Dakota Supreme Court in Spearfish Tuesday. Justice Mark Salter highlighted how neighbors in the case are seeking due process.
“It’s a claim to subject the state to the zoning regulations of Lincoln County, which would require this use, which would be nonconforming in this area, to pursue authority either through a conditional use permit or an application to rezone,” Salter said. “So, maybe that’s indirect, but still I think the fact remains that this isn’t a direct action to stop the state dead in its tracks from building a prison.”
And A.J. Swanson, counsel representing the neighbors, concurs.
“Justice Salter, I think you were exactly correct in the saying that the entire tenor of our complaint is a plea for due process,” Swanson said.
Grant Flynn, who argued the state’s case, also agreed with Salter. But zoning, he says, can’t inhibit the state here.
“The construction, maintenance and operation of a prison constitutes an essential governmental function,” Flynn said. “And this court has held that such an essential function cannot be obstructed by local zoning laws. The circuit court found in favor of appellees on these issues, and we respectfully request that this court affirm that decision.”
Just like the question of where the new men’s prison will be located, this case is also still undecided; the state Supreme Court will issue a ruling at a later date.
“The state had no obligation to follow, to seek a conditional use permit or anything of that nature, based on the common law and based on this court’s adoption thereof,” Flynn said.
“To say that their interest in having the right to a hearing when there’s going to be such a major, potentially catastrophic change in use and operation of the widow Haug’s former farm, that the due process interest mean nothing to the state, quite frankly, is startling,” Swanson said.
A task force dubbed “Project Prison Reset” will meet for the first time on April 2 after a legislative effort to appropriate money to build a new men’s prison in Lincoln County failed in February. When KELOLAND News recently asked South Dakota Gov. Larry Rhoden on Feb. 27 if the site between Harrisburg and Canton remained the administration’s preference, Rhoden said anything is possible.
