Murray residents have demanded from their city officials an outright ban on data centers since the city began drafting an ordinance for the facilities, with officials only issuing a, now expired, moratorium.
The situation is familiar around Kentucky, especially in Cave City, which issued a 12 month moratorium and is now facing a lawsuit, but also nationwide – Monterey Park, California and Port Washington, Wisconsin used ballot measures to handle issues.
While this is old news, the demand has come up time and time again, with city officials only perpetrating a proposed zoning ordinance will make a data center not “impossible, but very difficult” to be built and exist in the city limits, not accounting for Calloway County.
But the question from residents remains the same – what prevents a local government from banning it?
Ashley Wilmes, Kentucky Resources Council executive director, told The Sentinel that legislative action against hyperscale data centers is a “complex and state-specific issue.”
Wilmes said short-term moratoriums give local governments the time to protect themselves with studies and ordinances, but a ban is different ground. She also provided what information KRC has on data centers at this time.
“A complete and permanent ban on data centers may raise constitutional concerns and is more likely to invite legal challenge than a regulatory framework that protects the public interest by restricting how and - for communities with planning and zoning - where a data center can operate,” Wilmes said.
K. Bryan Ernstberger, Calloway County attorney, spoke to The Sentinel about the nature of an ordinance banning something like a brothel, which is illegal, and a data center, which is not.
“There are certain things that (have) legal precedents,” Ernstberger said. “Take a brothel, for example. You could ban a brothel, but a data center is not something in and of itself — trying to think of the legal terms — not evil…you can’t outright ban a business in a capitalist society.”
Ernstberger explained in a data center’s case, it is not a business a government can "explicitly" ban, compared to a brothel which operates in sex work.
But what the government can do is define what it does not want.
The Kentucky law prohibiting prostitution defines characters and actions such as the person seeking it, the person facilitating it, and the sexual conduct itself; the law can be applied accordingly by criminalizing them.
These definitions are critical when crafting legislation, so The Sentinel asked Ernstberger an obvious question: in order to ban something, do you need to know exactly what it is you are banning?
“Absolutely,” he said. “To ban it, you absolutely would have to be able to define it.”
By way of example, the City of Murray does not have any strip clubs in its city limits nor any laws banning them — yet it regulates items like public nudity.
According to Chapter 117 of the city’s zoning ordinance pertaining to adult oriented business, the city put forth regulations to promote the health, safety, morals and general welfare of the people.
Specifically, Chapter 117.2, “Persons who appear nude, semi-nude or in a state of nudity,” reads, “Live performances which are characterized by the exposure of ‘specified anatomical areas’ and/or the exhibition of ‘specified sexual activities;’ … ‘Adult Dancing’ includes, but is not limited to the following: any dancing which exposes to view by patrons, spectators or persons on the premises at any time the ‘specified anatomical areas’ and/or consists of ‘specified sexual activities.’”
A strip club, like a data center, may be a legitimate business, but the city’s zoning ordinance has defined the contents of the establishment as not permissible — therefore, it is not practical for one to exist in the city’s jurisdiction.
City Attorney Warren Hopkins declined a request for comment. City Administrator Jim Osborne was not available prior to deadline.
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