If the state wants to build a prison on land zoned for agriculture, it should get the countys permission first.
Or it shouldnt.
A 45-minute session of oral arguments Tuesday at Black Hills State University in Spearfish laid the groundwork for the South Dakota Supreme Court to decide, for the first time, whether the state should bow to local zoning officials under certain circumstances. The justices will rule at a later date.
The high courts call on the matter has implications for a Lincoln County prison project thats proven controversial and is now paused, thanks to its lukewarm reception during the 2025 legislative session.
But there are wider implications for the state as a whole.
If the justices rule in favor of the proposed prisons neighbors and force the state to seek permission to build, the state argues, locals could brow-beat planning boards into saying no to nearly any building project thats necessary for the general public but unpopular with its neighbors.
State officials, Assistant Attorney General Grant Flynn argued, would not be able to perform their essential governmental functions if they had to follow county ordinances.
State acts unilaterally
The case is an appeal from a group called Neighbors Opposed to Prison Expansion, or NOPE. Lincoln County Judge Jennifer Mammenga ruled against the group late last year, saying the state is immune from lawsuits over county zoning.
NOPE sued in 2023, shortly after the state Department of Corrections announced its intent to build a 1,500-bed prison on a farm site 14 miles south of Sioux Falls.
The neighbors argued that such a massive project would fundamentally alter the character of land Lincoln County had envisioned as agricultural in its long-term zoning plan.
If the state wants to build something industrial in an area zoned for farming, they argued, it ought to ask for a conditional use permit, like anyone else.
A.J. Swanson, the lawyer for a group of prison opponents, told the justices theres no solid reason to strip a county of its right to plan its land use.
The high court has never waded directly into the question of state vs. county supremacy in zoning matters. Theres another complication in this case, Justice Mark Salter pointed out. Lincoln County didnt sue the state over the DOCs failure to seek its approval. The neighbors did. The county eventually filed a friend of the court brief that sided with the neighbors, but its not leading the charge.
Salter asked Swanson if theres a place in state law or a Supreme Court decision to suggest that neighbors can file a private lawsuit to enforce public zoning laws.
Im not aware of a prior case in South Dakota that would have involved a comparable set of circumstances, Swanson replied. I have found that, generally speaking, county boards are pretty vigilant about enforcing their comprehensive plans and zoning ordinances. And I think in this case, Lincoln County was the clear exception.
State: No standing
Flynn told the justices that the neighbors do not qualify for the kind of legal remedy theyre after. In her ruling, Judge Mammenga referred to the general rule of sovereign immunity, which essentially shields the state from most legal actions that might stem from the carrying out of its public responsibilities.
Housing prisoners is part of a states essential functions, Flynn said.
Justices Salter and Patricia DeVaney both pointed out, however, that the neighbors didnt ask Judge Mammenga to stop the prison. They only asked for a hearing before the county.
I understand your response to the merits of that, but can they seek that? DeVaney said.
Flynn didnt disagree with the justices characterization of the case. But he said theres no state law or case law that gives private citizens a right to be heard in a situation where the state is acting to carry out an essential function.
Moreover, Flynn said, the motivations of the opponents are clear. The neighbors, he said, simply do not want this prison in their backyard, and theyre attempting to use the county zoning laws to prevent that from happening.
Due process?
Swanson seized upon the due process issue in his rebuttal.
For decades, Swanson said, the state has been a good neighbor in the rural section of Lincoln County. The state obtained the property a few years before the county adopted an ordinance requiring landowners to ask for a conditional use permit to build something that doesnt fit.
Until its transfer to the DOC, the ground had been leased for farming by the states School and Public Lands Office, with profits from the operation used to help fund education.
The decision to bring the catastrophic change of a large prison to the neighborhood, Swanson said, shouldnt be made with the stroke of a pen by the DOC secretary.
That these due process interests mean nothing to the state, quite frankly, is startling, Swanson said. I cant believe they can so easily trample those interests. I find that incomprehensible.
Prison sites uncertain future
The arguments over the prison site came one week before the first meeting of a task force dubbed Project Prison Reset by Gov. Larry Rhoden. The governor had hoped to convince lawmakers to approve the final round of funding for prison construction during the 2025 legislative session, but was unable to convince enough of them to sign off on the $825 million project.
As envisioned by the states executive branch, the prison would largely replace the oldest portions of the South Dakota State Penitentiary in Sioux Falls, which was built in 1881.
In 2024, lawmakers allocated $62 million to plan for a new mens prison at the Lincoln County site.
All but $7.9 million of that money has been spent to design and prepare for a 1,500-bed prison there.
The task force group, set to meet April 2 in Sioux Falls, is supposed to address the concerns that brought about the demise of that hoped-for facility: cost, size, necessity and location.
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