John Hult, South Dakota Searchlight
If the state wants to build a prison on land zoned for agriculture, it should get the county’s permission first.
Or it shouldn’t.
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 court’s call on the matter has implications for a Lincoln County prison project that’s 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 prison’s 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 that’s 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.
Prison opponents: State can’t act 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 (DOC) 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 there’s 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. There’s another complication in this case, Justice Mark Salter pointed out. Lincoln County didn’t sue the state over the DOC’s failure to seek its approval. The neighbors did. The county eventually filed a “friend of the court” brief that sided with the neighbors, but it’s not leading the charge.
Salter asked Swanson if there’s a place in state law or a Supreme Court decision to suggest that neighbors can file a private lawsuit to enforce public zoning laws.
“I’m 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: Neighbors can’t ask for a hearing on behalf of county
Flynn told the justices that the neighbors “do not qualify” for the kind of legal remedy they’re 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 state’s essential functions, Flynn said.
Justices Salter and Patricia DeVaney both pointed out, however, that the neighbors didn’t 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 didn’t disagree with the justices’ characterization of the case. But he said there’s 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 they’re attempting to use the county zoning laws to prevent that from happening.”
NOPE group: State wants to ‘trample’ 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 doesn’t fit.
Until its transfer to the DOC, the ground had been leased for farming by the state’s 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, shouldn’t 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 can’t believe they can so easily trample those interests. I find that incomprehensible.”
Prison site’s 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 state’s 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 men’s 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.