BROOKINGS – The Brookings City Council voted 5-2 this week to move forward with a judicial determination and to retain outside counsel as part of an 11.1 review concerning the proposed Brookings County Detention Center Expansion Project.
Dissenting in the vote were Mayor Keith Corbett and Councilor Mary Kidwiler.
Although Brookings County commissioners have approved the jail expansion, the Brookings City Council wants to resolve a procedural question of which entity – the city, county or the governor – should issue a determination to complete an 11.1 historical review.
The history
After years of discussion, Brookings County commissioners approved the jail expansion in spring 2017.
They want the expansion to be built at the site of the current jail, on the Brookings County Courthouse square. Their reasons include proximity to the courthouse; safety of employees, both from better facilities and security features and from not having to transport inmates to and from the courthouse from a different site; and cost savings of adding on rather than buying additional land and building from scratch.
The decision has been controversial because the courthouse is a historic site and opponents feel the jail expansion will overshadow the courthouse, or they don’t like the proposed looks of the jail. Others don’t want the jail in a residential neighborhood, and some feel there are better ways to deal with some of the inmates, especially those with mental health or drug abuse problems, than incarcerating them. Many also feel the jail will eventually outgrow the current site.
The Brookings Historic Preservation Commission initiated and conducted an 11.1 review and submitted its official comment to the State Historic Preservation Office on July 31, 2018, according to an attachment to the agenda available on the city’s website.
The State Historic Preservation Office (SHPO) issued its recommendation on Aug. 29, 2018, and concluded that the proposed Brookings County Detention Center Project does not meet the Secretary of the Interior’s Standards for the Treatment of Historic Properties, according to the attachment.
On Nov. 6, 2018, Brookings County completed its own 11.1 review and determined that there were no feasible and prudent alternatives to the construction of the detention center expansion as outlined by its project plans, according to the attachment.
Legal side
“It’s kind of a complicated issue,” said City Attorney Steve Britzman in the council meeting this week.
He explained it might be necessary to obtain guidance from the court system to interpret the statute for the 11.1 historical review. Once the state makes an 11.1 review determination, it typically comes back to the city council, Britzman said, but the county felt it was the entity to make the determination under the 11.1 review.
“In reading the statute, the lawyers haven’t been much help in sorting that out, but it’s not for lack of trying,” Britzman said. They’ve spent several months trying to work through the issue but haven’t been able to resolve it to the satisfaction of both parties, he added.
Britzman suggested asking a circuit court to interpret the statute and give the city and county guidance so they stay within the law. It could take up to a year to get a decision, and that carries repercussions, such as additional cost, he added.
Britzman said the subject of the discussion Tuesday evening was whether the council should proceed with legal jurists to resolve the issue, including bringing a complaint which is the start of a judicial determination to get a court decision on the interpretation of the statute.
Corbett reinforced that the discussion was only about the motion to move forward with the judicial determination, not about the jail itself.
“I know there are a lot of emotions about the jail on both sides,” Corbett said.
Public opinion
Janet Merriman, the chair of the Brookings Historic Preservation Commission, expressed the organization’s support to go forward with the judicial determination.
The group negotiates with the owners of historic properties when they want to remodel or move, so they can understand the state’s standards.
Merriman said the county doesn’t have a board focused on preserving historic character or knowledge of the state’s standards.
The BHPC’s stance is the city should be given the opportunity to deny or approve because it has an organization that understands the historic character and interpreting the state’s standards.
Carl Kline, who lives in the historic district, said he was pleased when the city and county teamed up to construct the Government Center. Now he wonders, “Why we’re proceeding to a point where both of these entities will use tax payer dollars to go into the legal system, basically combating each other?”
He hopes no one has to go to court; that the city and county can work things out.
Pat Fishback encouraged the council to move forward and consult with legal counsel “to try to sort this out.”
From the start, “there’s been vocal opposition – not to the jail expansion, which we understand is much needed – but to the site of the jail,” she said.
There doesn’t seem to be any way to separate how the city and county are impacted, so the council should continue to seek input on the situation, Fishback said.
The county’s side
Mike Bartley, Brookings County commissioner, recapped some history of the project.
The county has held meetings and public hearings to keep everyone informed and communicate with the public and organizations, changing plans along the way. The county submitted documentation to SHPO that the courthouse square was the best site for the project.
“We had presented alternatives, and it was recognized by SHPO on the state level,” Bartley said.
While communicating with SHPO, the county was trying to find out if it needed a building permit from the city for the jail. State law is vague on that point, but the county found out Minnehaha County did not need a permit for an addition to the jail in Sioux Falls, and neither did Pennington County in Rapid City, Bartley said.
They decided to proceed with construction plans, he said.
“In this particular case, we now have one public entity suing another public entity, and there’s cost involved,” Bartley said, adding the city will use sales tax and property tax revenue to cover the costs. The county will use property tax revenue from the city and the entire county to defend its side of the lawsuit. It could run into the hundreds of thousands of dollars, he estimated.
“Is that good use of public tax money? I don’t believe it is,” Bartley said.
Time delays and moving it to a new site could increase costs from the current projected $13.7 million to almost $23 million, he said. A bond issue for $7.5 million has already been passed, he said.
“If we’d have asked for a bond issue for $23 million, I guarantee you it’d probably been voted down,” Bartley said.
He estimated it’s already cost the county $1.5 million in delays in the past two years. A delay of a year for the judicial determination will probably add another million dollars, he figured.
“So the question for you tonight is, is this an appropriate expenditure of money, for one public entity to sue another using tax payer money – and think about that: taxpayer money, not yours, not mine, taxpayer money – to move a jail that can’t be moved?” Bartley said.
Council perspective
Councilor Nick Wendell asked Britzman if the county had submitted or requested permits from the city on prior projects associated with the facility.
“We determined the county had applied for a building permit for the elevator addition, not necessarily the jail facility itself,” Britzman confirmed.
Councilor Dan Hansen asked Britzman if the city has offered to go through the mediation process. There was informal mediation with the assistant attorney general in January, with the county’s attorney and himself, Britzman confirmed, characterizing it as a “good line of communication” and that briefs were filed.
Hansen asked if any decision tonight prevents a compromise outside the judicial system. It does not, Britzman confirmed.
Hansen expressed his frustration at the impasse, adding the county is asking the city to turn a blind eye to the interpretation of the law, which puts the city in a tough spot the next time a situation like this comes up.
“I think you answered a lot of your own questions. It’s just your … you guys are really just being too stubborn to go through the correct process and trying to find a way around what you believe won’t end in your favor,” Hansen said. He added that the county should follow the correct procedure or the city should get judicial opinion so it goes into state law.
Councilor Patty Bacon thanked Hansen, saying it was not the project itself, but the precedent they were voting on that night.
“I’m not a big fan of using taxpayer money to sue taxpayer money,” said Councilor Ope Niemeyer. He asked Britzman what had been mediated. “What were some of the things we just couldn’t get past?”
The impact, the footprint, whether changes could be made in the layout to reduce impact on the courthouse, Britzman said. Architects said some changes can be made, but the city and county couldn’t reach an agreement on the changes.
There were many discussions about the interpretation of the law, Britzman said, but “we just weren’t making any progress in terms of a change of layout.”
If the county sought a building permit for an elevator addition, “I would think that a $14 million jail expansion on that exact location might also require some review on behalf of the city of Brookings,” Wendell said.
What started as a $7 million project has escalated to $14 million, because of obstacles, Councilor Mary Kidwiler said.
“The clock continues to tick, and with every tick, the price of that jail goes up, and it’s all at taxpayer expense,” Kidwiler said.
Now, the city has to decide if it is going to force the county to get a building permit. There are two reasons for a building permit, Kidwiler said, to make sure the property is properly assessed on the tax rolls and to force inspections.
“Government property is not on the tax rolls; it’s exempt. And by state law, government buildings are required to have inspections. So there’s really no logical reason to force them to get a building permit,” Kidwiler said.
Passing the resolution slows the process down, adding to taxpayer expense, both city and county, Kidwiler said.
Voting to proceed with the legal review were Hansen, Niemeyer, Tilton Byrne, Wendell and Bacon. Voting no were Kidwiler and Corbett.
Contact Jodelle Greiner at jgreiner@brookingsregister.com.
