Council votes 5-2 to withdraw appeal in jail expansion case

County has special meeting set for 3:30 p.m. Thursday, Aug. 20

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BROOKINGS – The Brookings City Council voted 5-2 Tuesday to withdraw its appeal to the state Supreme Court, regarding a Circuit Court ruling on the county jail expansion. Dissenting votes were from Councilors Holly Tilton Byrne and Nick Wendell.

A judge ruled in Brookings County’s favor in March in the lawsuit between Brookings County and City of Brookings over the proposed Brookings County Detention Center expansion, saying the expansion could proceed. The council decided in April to appeal the decision.

Now that the city has agreed to withdraw its appeal, the Brookings County Commission has a special meeting planned for 3:30 p.m. Thursday, Aug. 20, at the Brookings City & County Government Center. 

Items on the agenda include action on a settlement agreement and release between the city and county; an amendment to the county’s agreement with Henry Carlson Construction; and an update and discussion on the issuance of bonds for the project. 

The resolution

City Attorney Steve Britzman on Tuesday explained the City Council resolution, which reads:

“The City of Brookings, in recognition of the potential additional financial costs and delay resulting from continued litigation, hereby withdraws its South Dakota Supreme Court appeal relating to the proposed expansion of the Brookings County Detention Facility and authorizes the City Manager to execute a settlement agreement and release to terminate the litigation. The timing of this agreement to terminate the City’s appeal to the South Dakota Supreme Court and execute a settlement agreement is intended to allow the County of Brookings to proceed with its favorable bid awards.”

“This resolution would authorize the city manager to execute a settlement agreement with the county of Brookings,” Britzman said.

Public comments

Janet Merriman, chair of the Brookings Historic Preservation Commission, said her organization still opposed the location of the proposed jail expansion.

The BHPC stated it did not agree with the county’s findings during the 11.1 review process, which were that the proposed jail expansion “would have no detrimental effects” on the courthouse square, which is on the National Register of Historic Places, she said.

The State Historic Preservation Office determined the project “would encroach upon, damage or destroy” historic property, Merriman said, adding “that’s when the question of authority came into play” with both the city and county going forward.

“The only concern we really have is whether the wording of the resolution could imply consent to the project and kind of lead to a precedent if expansion is needed in the future. ‘Cause we’re really worried about this project, about setting a precedence for expansion 20-30 years down the road.” Merriman requested the council reword the resolution so it doesn’t imply consent. 

“The BHPC has not changed our position,” Merriman said. “The expansion of (the jail on) the courthouse grounds will be a detriment to a very important historic resource within the city.”

“I would urge you to go forward with the appeal,” Pat Fishback said. “I also am concerned with the fact that we’re going forward on the jail expansion project on this site, spending up to $16 million on a building that does not need to be there. 

“The county’s needs are much greater than the size that the building can be,” Fishback said, adding that many reasons have been expressed why the jail expansion should not take place on the courthouse square. 

She pointed out the discussion item said the county would apply for a city building permit and asked if the county would have to answer questions about the building’s lot, height, density requirements, and general location of the public building.

“The city and the county would propose that the historic review of the property has been concluded,” Britzman said, adding the final plans for the historic review would not be materially changed at this point. “The last submission would be consistent with what the county approved at its determination on the historic review. So we feel that those issues have been addressed.”

Councilor comments

Wendell had a variety of questions, starting with how much money had been expended so far in the appeal process.

“I believe the appeal to the Supreme Court would be at about $35,000,” Britzman said, adding that doesn’t include circuit court costs.

Previous costs are about $38,000, Britzman said.

“It would seem that we have agreed, as a council, … that it was worth a $70,000 to $75,000 investment to proceed with the initial legal case and the appeal to the Supreme Court,” Wendell said.

“Now, we’re at the third quarter and we’re gonna take our ball and go home even though we’ve invested more than $70,000,” Wendell said, and not see it through to its conclusion. “We might as well have just buried $70,000 at the Dakota Nature Park at this point, because in my mind, if we don’t see this project through, we have completely abdicated responsibility both from a fiscal responsibility perspective, but also the importance of this project in our processes as a municipality.”

He said the way it reads, he takes it to mean that the city and county have not come to an agreement yet. 

“Legal counsel for both parties have been negotiating (a proposed settlement agreement) … the last three or four days,” Britzman said.

“I have to say that my faith in good action from Brookings County is shaken,” Wendell said. “I have real concerns in the way that Brookings County has followed this process.”

Wendell said he requested a joint public study session between the county and council two years ago, but others didn’t think it necessary.

“We assumed that they would follow the pre-established processes as good faith actors. Now, we’ve learned that they’ve not followed the 11.1 review process or its findings. They’ve not abided by the ruling of the state historic preservation process, and I have to wonder how they will be able to abide by the true spirit of our city permitting process,” Wendell said.

“I am really perplexed at why we would step back at this stage of the game,” Wendell said. “Brookings is the best community in the state of South Dakota but … it didn’t get that way by accident.”

“To me, this seems like we’re turning a corner that’s gonna be pretty impossible for us to come back from,” he said, adding he’s fearful of the precedent this case will set for the relationships between governing bodies across the state. 

Wendell brought up the need to invest in the municipal law enforcement center. In the future, will there be two expensive facilities, one for the county and one for the city, he asked. Won’t people ask why the residents of Brookings County couldn’t get together to build a joint facility? 

“I will be embarrassed to say I sat on the council that allowed that to move forward,” Wendell said.

He said the council should continue the appeal process, and if the city loses, the council would need to consider ways to partner with the county. 

Councilor Joey Collins considered how much the taxpayers have already spent. The jail expansion cost started around $10 million and is now around $17 million. And he’s not sure the city can win the case, which will cost even more money. 

“Thirdly, we have to have a jail now,” Collins said. 

A joint facility is not in the city’s budget – “we have no money until 2028,” Collins said.

“I don’t think any of us want to prolong the process and see those costs extended,” Wendell said, but those costs are on the county for pursuing this path. 

“I recognize there’s tremendous need for a jail expansion,” Wendell said.

But if the county outgrows the jail in 20-25 years, the only option is to abandon a multi-million-dollar facility and build someplace else, Wendell said. Now is the time to “reinvest in the core of our community.”

Councilor Leah Brink pointed out when the council started this process, there was no COVID-19 pandemic, which was life-altering to many budgets. She thought the legal fees were going to be closer to $35,000, not $70,000.

“I don’t think this is the right place for the jail,” Brink said. She doesn’t think it’s good for the central downtown, historic district, or business community.

“I feel at this point in time that our chances of being successful with this appeal are maybe lower than what I previously had thought,” Brink said, adding they didn’t have a plan in place if they had won the appeal. 

If construction proceeds, the county can take advantage of lower estimates available during the pandemic, thus lowering the cost of the project, she hoped.

“I feel like we’re faced with … two bad choices, and they both don’t taste good to me,” Brink said.

“I wasn’t real crazy about suing the county … thought it was a bad thing to begin with,” Councilor Ope Niemeyer said. The judge shot down the city, and Niemeyer wasn’t in favor of appealing the decision. “I think we wasted time and money on this.”

He said he doesn’t think the proposed jail is in the right place and has talked to county commissioners to explain that, “and it went on deaf ears.”

He lamented that the relationship with the county might be permanently damaged, but said it was time to move on. 

Councilor Holly Tilton Byrne said the city had committed financial resources to this fight, and to pull out now doesn’t make sense. 

She said it was important to adhere to the permitting process on these projects and allow the courts the opportunity to weigh in and not assume how the judicial aspect will be decided.

“We have struggled with this since I’ve been on council,” Councilor Patty Bacon said, adding there are passionate people on both sides of the issue.

Bacon said she struggles with the financial aspect to date, as well as the costs going forward and the impact on taxpayers. 

“This is one of the hardest decisions I’ve had to work on,” Bacon said.

There are repercussions, and not just the cost of the court process, Wendell said.

“There are tremendous needs in our current police department facility,” Wendell said.

The city and county should combine their money to build a joint facility “or we go it alone from here and the decision we make tonight, I think, will haunt us,” Wendell said, “because the conversation around the police facility won’t go away; it will intensify. And we will be moving forward alone.”

Contact Jodelle Greiner at jgreiner@brookingsregister.com.