McPherson County zoning board schedules public hearing after debate over mandatory studies for proposed data centers

The McPherson County Zoning Board voted to schedule a public hearing for May 13 to consider revisions to a proposed data-center ordinance after an extended discussion about whether the county can require a list of 12 studies for data centers.

Austin, the board's staff reviewer, told members the county's zoning authority is limited by state statute and that conditional-use criteria must be defined in any ordinance. "For the promoting of health, safety and the general welfare of the county, the board may adopt zoning ordinance[s] to regulate and restrict... the location and use of buildings," Austin said, citing statute 11-2-13; he also cited 11-2-17-3 to emphasize that conditional-use rules must include explicit criteria for approval or denial.

Why it matters: Board members and the data-center applicant debated what the county can lawfully require. Several members worried a mandatory "shall" list of studies could be legally problematic because the county cannot directly regulate utilities or occupational safety; others said asking for the information at a conditional-use hearing would be proper due diligence.

Board discussion and points of contention Board members questioned whether the ordinance language that reads "the following study shall be required" would force the county to take studies into account in a way that exceeds its statutory authority. Austin summarized the legal concern: the county can adopt zoning restrictions under state statute, but it cannot, in his view, regulate certain subjects such as electrical or water consumption directly and must provide measurable criteria in the ordinance for conditional-use decisions.

Members discussed specific studies listed in the draft: water consumption, noise, electrical impacts, emergency response, EMF (electromagnetic field) exposure, economic and community impact, hazardous materials and waste discharge, and carbon- or energy-related studies. Austin said some topics — for example, noise — are easier to define and enforce, but others (EMF, electrical load, water use) would be harder to write into ordinance language without outside expertise or clear statutory authority.

Several members warned that placing studies into the ordinance as mandatory items could inadvertently tie the county's hands if the county lacks regulatory authority over the subject matter. Austin said that if a study is placed in the ordinance, it must contain criteria that yield a clear yes/no standard for approving a conditional-use permit; otherwise the ordinance risks being legally vulnerable.

Applicant and voluntary disclosures Bill Conners, who identified himself as representing the data-center applicant, said the company had already provided substantial information with its initial conditional-use application and offered to submit amended materials and host public information sessions. "With the initial conditional use permit application, we did provide a lot of the information that's being requested," Conners said, and he offered an informal open house and a formal Q&A with the board.

Enforcement, permits and bonding Board members discussed enforcement tools if an operator violates permit terms. Staff said existing county ordinance provisions require notice prior to certain discharges, require off-site disposal at approved locations, and permit revocation of a conditional-use permit if the operator fails to comply. The draft ordinance previously included bonding language; some members said removing bonding shifts cleanup responsibility to the landowner and could leave the county exposed if costs exceed available bonds.

Moratorium and limiting the number of data centers Members noted a moratorium on new data centers currently exists and discussed options for limiting expansion. One member proposed allowing only a single data center to be built and pausing on approvals for others while the county monitors impacts; legal staff warned such a restriction might invite litigation and has uncertain legal precedent.

Board action and next steps The board moved and approved a public hearing on the draft data-center ordinance for May 13 (time set at 09:00). The motion as recorded in the transcript set the hearing date; the record does not list a roll-call vote or a named mover/second. The hearing will consider ordinance wording changes — including whether to change "shall" to "may/requested" for specified studies — and will allow the board to request additional studies or information when the applicant appears for a conditional-use permit hearing.

The applicant reiterated willingness to provide additional materials and to meet the board for Q&A; county staff (Hunter) was tasked with scheduling and posting the hearing and will circulate an updated draft.

What remains unresolved Board members did not adopt or remove the disputed section (Section 5.330.12) during this meeting; one member proposed removal, but no final action on that deletion appears in the transcript. The board instructed staff to prepare the hearing notice and supporting materials and to clarify which ordinance provisions already address emergency response, hazardous waste notice, and other topics listed among the proposed studies.

The May 13 public hearing will be the forum for further testimony and for the board to consider specific ordinance language changes before making a recommendation to the McPherson County Commission.