After a nearly two-hour public hearing, the Murray Planning Commission voted 6-1 Tuesday to revise its proposed data center regulations rather than send the draft ordinance to the Murray City Council.
More than 100 people attended the special called meeting at Murray City Hall, where 21 people – mostly, but not all, city residents – spoke during the public hearing. However, by the time commissioners voted, about a dozen people remained.
Planning Commission Chair John Krieb called for a 10-minute recess before commissioners reconvened to discuss the next steps. Noting that many people made good suggestions that warranted consideration, several commissioners expressed the need for more time to conduct research before advancing the draft to the city council for consideration.
Commissioner Paula Hulick suggested compiling the feedback and holding another special called meeting to review it, and in the interim, strongly suggesting to the city council call a moratorium on data center construction while the commission processes and incorporates the feedback into a revised draft.
But Planning Commission attorney David Perlow warned the council cannot take action until it has an ordinance for consideration.
“I don’t think they can consider it until you forward something to them, and it may not be a perfect document,” Perlow said. “No doubt city council will probably form a subcommittee to work on it and do their own tailoring, but as long as you hold the ball, it can’t move forward, procedurally. You might want to keep that in mind as well that the longer you hold the ball, there is no regulation of data centers.”
Krieb asked if the commission decided not to advance the ordinance to city council, could it suggest that the council consider a moratorium. Perlow said he had reservations about the legality of a moratorium and cited a multi-million-dollar lawsuit filed earlier this week against Cave City, home to Mammoth Cave, for implementing a 12-month moratorium on data centers in May.
“I can't legally advise you to advise somebody else that a moratorium is legal or illegal at this point. I wouldn't feel comfortable making that assumption,” Perlow said. Noting that the state legislature has passed tax incentives for companies looking to build data centers, he explained that “there may be a high bar if challenged in court is all I can say. I don’t feel comfortable saying yes or no one way or the other.”
“We, right now, don’t have anything in place if someone submits a proposal for a data center tomorrow?” Hulick asked Perlow.
“There’s nothing in place except our minimal zoning regulations, but no, it’s wide open,” Perlow said.
Elaborating, Perlow advised that the commission had two options. One option would be to advance the ordinance in its current form, essentially “putting the ball in the city’s court.” The advantage to that strategy is that it brings the city one step closer to having “some guardrails in place.” He noted that the council will still have to review it, make changes as they see fit, seek public input and hold two readings before an ordinance could go into effect.
“So, we could pass it on in its current format to the city council with also the stipulation in our motion that we’re also going to be including all of the comments that were brought up, the concerns and so on and that they all need to be considered and analyzed by the city council – or however they choose to research that – and make a final ordinance accordingly?” Krieb asked.
Perlow said that is not the normal process; however, the number of hyper-technical issues involved complicates the issue. Either way, a significant amount of work will need to be done before final passage of the ordinance.
Krieb then moved to advance the ordinance to the city council as written, along with a summary of the feedback and concerns raised during the public hearing, but Commissioner Bobby Deitz expressed concern that the council could approve the draft without considering the public’s comments.
“City council can do whatever city council wants to do,” Perlow said. “Your recommendations, your objections, your concerns, they are simply guidance for city council. City council’s going to enact their final draft regardless of what you think. This is just sort of to help give them a framework and idea.”
Noting that several city council members were present at the public hearing, Krieb said, “They’ve certainly heard the public input, and I would hope they would share that with the other council members and react accordingly rather than just adopt it wholesale as it exists today.”
Krieb asked for a second on his motion, but none of the commissioners spoke up. With no second, the chairman advised that another motion was needed on how to proceed.
“I think we need to go back to what we were talked about earlier about keeping it with planning,” Hulick interjected. “I also think – against legal counsel’s advice – we can at least recommend the city council look at the possibility of a moratorium. I know we don’t have any control over that. … Obviously, we need more time, but it makes us more vulnerable because (now) we’re probably going to be in July (before the ordinance can advance to the council).”
Hulick made a motion that the commission reconvene for another special called meeting to review a revised draft based on suggestions from the meeting and additional research conducted in the interim. Commissioner Stephen Crouch seconded the motion.
The motion passed 6-1, with Krieb casting the only no vote.
Before adjourning, commissioners scheduled a special called meeting on Tuesday, June 23, at 4 p.m. to review the revised draft before holding another public hearing at a later date.
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