Legal expert weighs in on CoreCivic’s desire to open ICE detention facility without city permit

LEAVENWORTH, Kan. (KCTV) - A private prison company is trying to get around city permit rules to open an ICE detention facility in Leavenworth.

The rules would seem cut and dried. A prison or jail needs a special use permit to operate. KCTV5 presented the ordinance and CoreCivic’s history at the now dormant site to a law school professor to find out if the company had a leg to stand on.

Steve Leben, a professor at UMKC School of Law, weighed in on where the corporation may be coming from.

“Sometimes when the law is not completely clear, and this may be that type of case,” Leben said, “a court has to come in and resolve the dispute.”

HOW DID WE GET HERE?

CoreCivic, Inc. submitted a special use permit application last month for “reactivation” of its Leavenworth Detention Center under a new name and new purpose. The Midwest Regional Reception Center (MRRC) would operate under a contract with Immigration and Customs Enforcement (ICE) to house “approximately 1,000 detained noncitizens.”

READ MORE: A look inside potential ICE detention in Leavenworth

The proposal sparked considerable opposition from those concerned about potential harm to staff and detainees based on past experiences when CoreCivic operated the facility to house federal pre-trial detainees under contract with the U.S. Marshals Service.

Several weeks later, on March 13, the City of Leavenworth posted news that CoreCivic had requested to withdraw its application. Days later, the company made it clear that it was no victory for opponents. They still planned to open an ICE detention facility there. They just planned to do it without a special use permit.

In a statement to KCTV, CoreCivic Public Affairs Director Ryan Gustin stated that CoreCivic “expect(s) the facility to be fully operational in the upcoming months” and that it does not believe a special use permit (SUP) is required.

“We’ve been proud to operate a detention facility for the federal government at the Leavenworth site for over 30 years,” Gustin stated. “While we do not believe the SUP is necessary, we look forward to partnering with the local community as we always have.”

READ MORE: CoreCivic to proceed with opening ICE Detention Center in Leavenworth

CAN THEY DO THAT?

Job postings are already up for MRCC detention officers.

The MRRC website still lists its as “inactive.”

The company has yet to spell out why they believe they don’t need a special use permit, but Leben considered an argument that could come into play.

“The ordinance is cut and dried as to facilities that open after the ordinance existed,” Leben said, “but this one came before.”

When KCTV5 spoke with Leavenworth City Manager Scott Peterson explained why a special use permit was needed.

“They haven’t been operating for the last two years,” Peterson said. “Our zoning ordinance states that they have now vacated their use as a private prison, which means they need to apply for a new one.”

NONCONFORMING USE

CoreCivic was operating the Leavenworth Detention Center without an SUP because that requirement didn’t exist when they opened decades ago. After the ordinance was written, they were allowed to continue operating without an SUP.

“If a land owner has a use of property in effect before zoning regulations come into effect, they normally are allowed to continue what’s called a nonconforming use indefinitely,” Leben explained.

Then, CoreCivic’s contract with the U.S. Marshals ended in 2021 due to an executive order from President Joe Biden that applied to all federal contracts with private prison companies.

The time that lapsed since then would mean the ordinance still applies, but there’s a possible argument for getting around that.

‘ABANDONMENT’

Leben pointed to old case law doctrine that came from a 1970 Kansas Supreme Court decision. Union Quarries, Inc. v. The Board of County Commissioners of Johnson County involved a discussion of nonconforming use.

The circumstances were different, but the court decision speaks to what qualifies as “abandonment of a nonconforming use.”

The court wrote that a property must be abandoned intentionally and with an overt act or failure to act. Simply stopping that use alone does not amount to abandonment in that court’s opinion, although the court said how long it’s not been in use could be a factor.

CoreCivic has several times made a point of stating that they continue to maintain the facility despite not having used it as a prison or jail since 2021. That includes a statement from a warden at a different CoreCivic facility out-of-state who was giving a tour of the facility as the potential warden for the MRRC in Leavenworth.

“We’ve never actually shuttered the facility, and we’ve had a contingency of maintenance staff that have been on site providing virtually 24 hours of coverage,” said Misty Mackey.

LEGAL ANALYSIS

Leben was not prepared to weigh in on the merits of that in this case, but he said it definitely leaves room for debate.

“They probably haven’t abandoned it under the old school law, but they also haven’t used it as a prison for 12 months if the city’s ordinances now apply,” Leben said. “Ultimately, there’s probably a court question. Which of these two legal rules applies here? In the meantime, both CoreCivic and the city have to talk with their attorneys about what they think is the most likely result.”

No legal action has been taken yet on either side.

The agenda for the city’s March 25 meeting states the commission will go into closed session for “consultation with the City Attorney on zoning matters that would be deemed privileged in the attorney-client relationship, with possible action by City Commission in open session to follow.”

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