The recently submitted and verified petition seeking to ban high-impact data centers in the Emporia City limits is set to go under review in Lyon County District Court.
Emporia City Commissioners voted unanimously to file a petition for a “Declaratory Judgment” with Lyon County District Court on the matter. This course of action will see district court now decide as to “whether the proposed ordinance is a proper subject for the initiative process under K.S.A. 12-3013 — Kansas statute that allows city electors to propose new city ordinances through initiative petitions, signature requirements, and special elections — before the commission takes further action.”
City Attorney Christina Montgomery clarified during the meeting in simple terms that the court will be rendering a decision as to whether the petition filed addresses a legislative matter or an administrative matter. If it is determined the matter falls under the administrative definition, the petition will not be able to proceed.
The determination will be made based on a four-pronged test established by the Kansas Supreme Court in 2009, which requires a petition to meet the following four standards:
1. Creation of New Law vs. Execution of Existing Law
Legislative ordinances establish broad, permanent policies, while administrative ordinances
implement existing law. Although the proposed ordinance prohibits high-impact data centers
throughout the City, it relies on existing zoning regulations for enforcement, suggesting it
implements existing law rather than creating new law.
2. Scope and Purpose of the Ordinance
Legislative ordinances generally declare a public purpose and provide mechanisms to achieve
that purpose, while administrative ordinances address more specific issues within an existing
policy framework. Although the proposed ordinance applies to all zoning districts, its reliance on
the City’s zoning regulations for enforcement and its focus on a specific land use may indicate
that it addresses a narrower policy issue more appropriately characterized as administrative.
3. Requirement of Specialized Knowledge or Expertise
Decisions requiring specialized municipal knowledge, such as zoning and land use planning, are
often deemed administrative. The proposed ordinance regulates high-impact data centers, which
involves technical considerations such as land use compatibility, environmental impacts, and
infrastructure requirements. Courts have held that zoning decisions require technical expertise
and knowledge of a city’s fiscal and operational affairs, supporting an administrative
characterization.
4. Delegation of State Policy to Local Government
When the Legislature delegates decision-making authority to local governing bodies rather than
the electorate, an ordinance addressing that subject is administrative. Kansas courts have held
that zoning and land use decisions fall within this category because the Kansas Planning and
Zoning Act delegates zoning authority to local governments through procedures established by
Commission Action Report Initiative Petition for Ordinance Prohibiting High-Impact Data Centers
state law. The proposed ordinance’s reliance on the City’s zoning regulations and its potential to
override those procedures further support an administrative characterization.
Montgomery also stated there were concerns the petition may not align with the Kansas Planning and Zoning Act, specifically that cities and counties must follow The proposed ordinance would not be in alignment with the Kansas Planning and Zoning Act as it seeks to alter existing zoning regulations without following proper proecedures required by K.S.A. 12-757 including proper notice, review by a planning commission, a public hearing and governing body action.
Submitting the petition for review was just one of the options presented to commissioners Wednesday, with other potential courses including approving the petition and a resulting ordinance, as presented, denying the petition, or placing it on a future ballot for a public vote. Commissioner Erren Harter stated Wednesday that he felt this was the best course of action, as he felt regardless of any other options taken, the city could be opening itself to a significant “legal battle” either way.
Mayor Becky Smith also shared these concerns and stated to KVOE News following the meeting that should the petition be deemed valid by district court, it is her opinion that she would like to see it put to a public vote. KVOE News noted that many of the opposition to the Flint Hills Digital Campus project have called for a public vote in previous months and asked Smith if that would be the outcome, should it not have gone straight to that route.
Smith stated she felt this was the necessary course to ensure the city was following the “letter of the law.”
The petition seeking to prohibit data centers was submitted by Emporia Neighbors United late last month and was verified by the Lyon County Clerk’s Office on July 21. This was the second time the petition was submitted after the initial attempt was deemed invalid due to organizational errors.
A second petition, seeking to ban energy storage systems in the Emporia city limits is currently under review by the County Clerk’s Office and three other petitions are circulating throughout the community at this time including petitions seeking to do away with the current City Commission government structure, replace that model with a ward-based City Council structure including an at-large position and replace the current appointment method for unexpired City Commission/City Council terms with special elections.
Emporia Neighbors United has also received clearance from Lyon County Legal Counsel Molly Priest to begin a recall petition specifically against City Commissioner Erren Harter, alleging misconduct in office, including accepting benefits such as lodging and hospitality from a business owner while voting in favor of the businessman’s requests for public funds or community development. Signatures are now being collected.
All of these petitions have been born out of the announcement in June of plans to develop the Flint Hills Digital Campus, which could house a data center on 11 tracts of land that City Commissioners recently rezoned during their July 22 meeting. During Wednesday’s meeting, City Manager Trey Cocking offered an update on that effort, saying Kanza Park Place, the entity that owns the options on the property, is actively shopping the land around to potential end users; however, no end user has been identified as of yet.
In other business Wednesday, commissioners approved a bid of better than $ 3 million for upgrades to the DeBauge Family Soccer Complex, which have been in discussion and early development for over a year now. The bid was awarded to Icon Construction based in Wichita.
The upgrades to the soccer complex will include a new turf field, a new maintenance building, restrooms, concessions, and updated parking. The project will not see any local tax dollars being allocated to it, as this wave of work is being funded solely through separate $1.5 million contributions from the Emporia Recreation Commission and Stormont Vail Health, whose new Emporia facility will neighbor the fields, and a $750,000 grant from the state of Kansas.
Current indications are that work may begin in September, with 290 days of work planned.
Wednesday’s meeting was conducted virtually, as will the August 19th meeting, due to reported credible threats levied against city commissioners and staff in recent weeks. When asked their thoughts on the situation, Commissioner Harter stated virtual meetings for any purpose “are not wanted.”
Commissioner Tammi Ogle stated it is an unfortunate measure that she feels needed to be taken, saying it is not just about the commission’s safety but the general public’s as well.
The August 19th meeting, again, will not have a time allotted for public comment and can be accessed online at EmporiaKS.gov and questions or emails can be sent to citycommission@emporiaks.gov or by calling 620-343-4289 before the meeting.
