Oldham County board denies three appeals challenging planning director’s 'private utility' label for proposed data center

The Oldham County Board of Adjustments and Appeals on June 12 denied three separate administrative appeals that challenged Planning Director Ryan Fisher’s treatment of a proposed data-center application as a "private utility," ruling the appeals untimely or moot after the applicant withdrew the original Highway 53 submission.

The appeals were filed by Robert Houchins; Nana Lampton (represented by attorney Randy Strobo); and Nathan and David Oberg (represented by Hank Graddy) and the organization We Are Oldham County. The appeals asked the board to overturn Fisher’s interpretation that a hyperscale data center application for 3557 North Highway 53 (Project Lincoln) could be processed as a private utility and therefore be eligible for a conditional use permit.

Why it matters: The planning director’s classification determines what review process applies and whether an application will come before the Board of Adjustments for a conditional-use hearing. Appellants argued the county’s zoning code does not specifically list “data center” and that Fisher’s interpretation was legally incorrect; the county and the applicant’s representative argued the director reasonably applied the private-utility definition in the ordinance and that the appeals were procedurally untimely or moot because the Highway 53 application was withdrawn.

Factual background and board action

Mark (staff) read the docket material to the board at the start of the hearing, identifying the matter as an administrative appeal related to property at 3557 North Highway 53 in La Grange. Anna Barge, senior planner, summarized the case history, noting Project Lincoln’s technical-review-committee submission and that Western Hospitality Partners (WHP) had later withdrawn the conditional-use and variance applications for the Highway 53 property and instead submitted a separate application for a different property on D.W. Griffith Lane.

Planning Director Ryan Fisher testified that, after researching how other jurisdictions and planning professionals classify data centers, he concluded the best fit within Oldham County’s regulations was the ordinance’s definition of "private utility." He told the board he had looked for analogues in other counties and national planning references and explained the county definition he applied as "any system, facility, or building" operated by a nonpublic entity that provides a service "deemed necessary for the public health, safety, and welfare." Fisher said he preferred the private-utility designation because it places a data center under conditional-use review rather than permitting the use by right.

Attorneys and expert testimony

Keith Brown, counsel for the county planning director, told the board Fisher’s decision was not arbitrary and urged the board to dismiss the appeals as untimely or, alternatively, to uphold the director’s interpretation. Brown cited Kentucky case law emphasizing deference to nonarbitrary administrative interpretations.

Cliff Ashburner, attorney for Western Hospitality Partners, urged the board to dismiss the appeals as untimely or moot, and he presented contemporaneous public postings and a March publication referencing the proposal to argue that opponents had actual notice well before they filed appeals. Ashburner said, "If you file an application, you wait 30 days and nobody files an appeal, that appeal period...has closed."

Appellants’ counsel pressed the board to decide the legal question. Randy Strobo (representing Nana Lampton) and Hank Graddy (representing the Obergs and We Are Oldham County) argued the county’s zoning statutes require conditional uses to be specifically named, that data centers are not listed, and that Fisher’s informal verbal interpretation was neither written nor authorized. Robert Houchins, an appellant and former board member, told the board: "It doesn't say Private Utility... It's a Data Center. It's not a Private Utility."

Two expert witnesses called by appellants provided technical and legal views. Planning consultant Gregory Dale said Oldham County’s ordinance requires literal readings and that a use not expressly permitted is typically prohibited. Attorney and utility expert Tom Fitzgerald testified that data centers are not treated as utilities by Kentucky regulators and that they do not provide nondiscriminatory public service in the way utilities do; he also said he had confirmed the Public Service Commission does not regulate data centers as utilities.

Public comment and procedural rulings

Dozens of residents spoke during a combined public-comment period. Many opposed the project on local character, public-safety and environmental grounds, and concerns about property values and notice. Speakers raised procedural issues about when notice should be deemed received for the 30-day appeal clock. The board adopted a hearing procedure at the start of the session, set time limits for presentations and questions, and later extended parties’ rebuttal time to 15 minutes to permit cross-examination.

Board decision and motions

After deliberation the board made separate motions on each appeal. The board voted to deny all three appeals, with the motions recorded as denials on grounds the subject application had been withdrawn and the appeals were therefore moot (and, in the board’s view, procedurally affected by notice timing). The chair announced that "All 3 have been denied." The board did not adopt an alternative written ruling that would have reached the substantive interpretation of whether a data center qualifies as a private utility; instead the board’s action resolved the pending administrative appeals as withdrawn/moot under the procedural posture presented to the panel.

What the decision does and does not do

The board's rulings do not approve any specific data-center permit. They do not change the county’s zoning text. They resolved only the three administrative appeals tied to the Highway 53 submission that was withdrawn. As several board members and participants noted repeatedly during the hearing, the legal and zoning question could recur: the developer has since submitted a separate application for a different site, and county staff are pursuing a zoning-text amendment process (study-review committee → planning commission → fiscal court and municipal bodies) to define and regulate data centers.

Next steps and context

Planning director Fisher and staff said they are continuing a multi-month study-review process to craft zoning text amendments for data centers and expect the committee to complete its review and forward recommended ordinance language to the full planning commission in July. If or when a complete application for a project is refiled, opponents may file new administrative appeals; any new appeals would be evaluated on the notice and timeliness facts at that time.

Ending note

Board members and counsel repeatedly advised parties that the county’s zoning-text amendment process is the appropriate long-term vehicle to set where and how data centers may be sited. The board’s denial of these three appeals resolved the immediate administrative challenges tied to the withdrawn Highway 53 case, but it leaves the larger policy and zoning questions for the ordinance-review process and any future permit hearings.