Public concerns reshape Murray data center ordinance before council review

With Murray Police Department officers present, the Murray Planning Commission reviewed a revised version of the city’s proposed data center ordinance Tuesday. The new draft included a litany of changes to its language after public concerns, comments and suggestions from last week’s fiery meeting.

“Due to the expected turnout at the meeting, officers from the Murray Police Department were requested to be present at the meeting,” MPD Captain Andrew Wiggins told The Sentinel in an emailed statement. “The officers’ goal was to ensure everyone’s safety while protecting their constitutional rights at the meeting.” 

Within days of the commission's last meeting, the Murray City Council imposed a one-week moratorium and directed the commission to redraft the ordinance ahead of schedule and forward it to the council for a first reading.

In a follow-up interview Wednesday, Mayor Bob Rogers told The Sentinel he thought the meeting went well.

“I believe that the audience realized the staff and the commission had listened to what they had to say, and they made adjustments in the proposed ordinance,” Rogers said. “... I hope that's what (the public) got out of it because that's what we did. We took the ordinance that staff had put together, and then we listened – more than once – to the testimony and (added) what we felt like were things that would help the ordinance. We inserted those, so hopefully, hopefully it'll be well received.”

Carol Downey, director of planning, told the commission the changes suggested by the public had to do with the ordinance's language. Her first mention of a change was item A under Amendment I, changing "facilitate" to "regulate.”

The Sentinel does not have the updated ordinance that was read at the commission meeting, but the changes to the ordinance Downey spoke of can be found below, located by page, letter section with its description, number and additional sub sections as described.

Page 1

Changes under section A), General,

• 1) "facilitate" is changed to “regulate.”

• 2) “hosting” is changed to “leased.”

Page 3

Changes under section C), Permitted Uses,

• 2) “Issuance of a Conditional Use Permit by the commission in conjunction with the requested map amendment” will include a yearly renewal if permit is approved, subjecting data centers to review by the commission.

Page 4

Changes under section D), General Requirements Relating To Location Of Data Centers,

• “No data center shall be located:”

• 4) “In wetlands or within 50 feet of the boundary of any wetland” will have a longer setback distance, increased to 300 feet of the boundary of any wetland, river or stream.

• 5) “On prime farmland, or farmland of state importance” is too vague, involves sensitive use in its definition, changes include farmland of state importance be farmland in the Kentucky agricultural district; Dowey said farm owners request to place their lands under the agricultural district in accordance with KRS Chapter 262.

Changes under section E), General Requirements Applicable To Data Centers

• 1) Setbacks

• e) “The setback distance may be reduced up to 50% where the owner of the adjoining property to which the setback applies waives, in writing and recorded with the land records office, the greater setback distance, and where buffering, fencing, or other landscaping is employed such that the noise levels are not exceeded at that property boundary” has been struck through and removed.

Page 9

Changes under section E), General Requirements Applicable To Data Centers (continued)

• 8) Noise

• “The locations of the noise measuring equipment for the pre-construction noise analysis shall be shown on the submitted site plan. The points of measurement shall be at all external perimeter property lines at locations most susceptible to noise from applicable proposed equipment” is struck through and “changed” to A.

Page 12

Changes under section E), General Requirements Applicable To Data Centers (continued)

• 9) Utility And Infrastructure

• f) 1. “Public utility capacity and related electrical infrastructure sufficient in size and capacity is or will be made available to ensure that the power requirements of the proposed project can safely be accommodated …” to include documented usage of power through the conditional permit review by the commission and the facility is required to produce an annual report; city may thereafter conduct compliance testing analysis at the facility's expense, and if the report identifies the usage greater than the maximum permissible wattage, may, after a reasonable notice and opportunity to cure the conditions contributing to the exceedance, suspend or revoke the conditional use permit.

Page 13

Changes under section E), General Requirements Applicable To Data Centers (continued)

• (10) Generator and Testing Requirements
  • a) Strike through "diesel fuel.”
  • b) Strike through the entire section.

• e) Strike through the entire section.

Page 17

Changes under section F), Conditional Use Permit Application Requirements

• m) “An assessment of all anticipated emissions from the construction and operation of the facility, including transportation” be another item subject to the yearly review of the commission.

• n) “An assessment of all water usage and wastewater generation and characterization, and plans for management of wastewater and stormwater; and” be subject to yearly review, required reports indicating usage, compliance testing.

Page 18

Changes under section F), Conditional Use Permit Application Requirements (continued)

• O) 4. “A performance bond, or other financial assurance payable to the City of Murray other than a letter of credit, sufficient to assure that decommissioning of the site can be achieved by a third party in the event that the applicant defaults in that obligation, which financial assurance shall be provided prior to commencement of construction” to include financial assurance to the city of Murray is updated yearly in line with the conditional use permit; decommissioning will reflect current day cost and will be paid by applicant.

Clockwise from left, Commission Chair John Krieb and Commissioners Paula Hulick, David Roberts and Bobby Deitz speak during Tuesday's meeting. (RIVER MURT/The Murray Sentinel)

Additional changes, further discussion over language

John Krieb, commission chair, asked fellow commissioners for thoughts on the brought forward changes. Paula Hulick said the changes are thorough, and Chris Scott said he did not see the need for changes, adding Downey and her team did a great job making the people’s comments into policy.

In consideration of potential concerns that were not addressed, David Roberts inquired about endangered species and environmental phase one assessment before construction.

“If you build a road through some place, you have all these studies, and part of them have to do with your cultural, historical, and also your environmental assessments. And there's different types of phase one and phase two assessments – pre-development, post development,” Roberts said. “Am I somewhere on the right track there?”

Bobby Deitz agreed, saying this detail protects the buyer from owning something contaminated, but he also noted there was not a mention for endangered species.

Roberts said there are no items regarding cultural protections either.

“If they have to get an Army Corps of Engineers permit, we're probably going to require them to get that done, but otherwise they may not need to do one,” Deitz said. “You know, the only other thing that usually kicks in, if you got a grant that requires you to do it, so private developers wouldn't necessarily have to do one, but maybe something that we would want to add to it.”

Roberts suggested checks for areas such as historical sites, grave sites and cemeteries. The commission agreed.

Deitz also asked about post construction compliance testing, where city oversight begins six months after completion. Krieb said the city may request a compliance test at any time.

“What if we go back on page 11, item nine, and just strike the word ‘thereafter,’” Krieb said. “That kind of opens up that the city could at any time they choose conduct compliance testing.”

Deitz wanted to settle the six-month wait time before compliance testing can begin, recalling it needs to be shortened. Hulick replied, saying Krieb’s suggestion to cut “thereafter” in a different section would allow them more agency to act on testing.

“If these guys are doing this for a living, they should know what it takes to get the sound where it's supposed to be, other than just let them crank it up soon as they can without putting stuff in there that would get the sound of what levels was supposed to be so this would just make them react a little bit quicker than six months,” Deitz said.

The commission agreed to shorten the time frame to 60 days. When discussion turned to the cost of the testing, Deitz recommended if the noise is unacceptable then the applicant will pay the cost.

Roberts pointed out another language dispute on page 14 regarding a data center’s energy efficiency, saying it is likely there are places that have been missed — therefore open to legal loopholes.

Krieb added, asking Downey to go over the ordinance for one more review looking for the language inconsistencies, specifically replacing the word “encouraged” with “shall” or “must.”

The ordinance was approved unanimously by roll call vote, sending the revised draft to the city council. The council will hear the first reading of the proposed ordinance at a special called meeting at 6 p.m. on Thursday, June 18.