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City counsel warns of constitutional and preemption risks in proposed data-center ban
Summary
City counsel outlined constitutional, preemption and vagueness risks if the proposed charter amendment banning certain data centers were to be placed on the ballot and enacted, citing cases including Powell Crossing, Canton v. State and Thor Equities v. Urbana.
City counsel Michael Ziffel spent substantial time at the Aug. 3 special meeting explaining legal risks tied to the proposed charter amendment that would ban data centers with peak loads greater than 25 megawatts. He warned the amendment’s language—especially the 25-megawatt threshold and the lack of a grandfather clause—could invite challenges on vagueness, equal protection and takings grounds.
Ziffel cited federal and state cases that have shaped how courts view city charter measures that effectively act as referenda or single out specific uses. "If the real effect is to approve or revoke a previous approved project, the court will treat the measure like a referendum, not like a charter amendment," he said, citing a Southern District of Ohio opinion involving Powell Crossing. He also flagged potential state preemption where utility regulation is concerned.
Counsel told council members which factual details would matter in litigation—whether the amendment targets a particular development already approved, how "peak load" is measured (metered load, design capacity, contracted service), and whether the amendment's enforcement provisions are self-executing. He advised that constitutional questions would ultimately be decided by Ohio courts under expedited election-law procedures if the measure reached the ballot.
