The Nodaway County Commission, under extensive questioning by Billy Miers Tuesday, July 28th at the regular Commissioner’s Meeting, said that it was looking into the possibility of zoning for the county in response to Scale Microgrids and possible other companies seeking to locate to Nodaway County. The commissioners said that it was the one feasible option they had for passing a moratorium that could stand up in court. To get on the November ballot, the county would have to get a zoning measure certified by the end of August, not a lot of time. The next chance to get a measure on the ballot would be either April 2027, after construction is tentatively scheduled to start on the White Cloud Generating portion of the project south of Maryville, which would add 12 gas-powered turbine generators to the grid for the purpose of selling electricity to Evergy for the purpose of the data center buying most of it back.
Counties and cities are restricted in what they can do in regulating farming through zoning. They can designate certain areas as agricultural, residential, and commercial, and they can have setback requirements, but they cannot pass health ordinances that are stricter or inconsistent with DNR regulations. Also, the Right to Farm Amendment, which Missouri voters passed in 2014, creates a presumption against local regulations regarding farming. Counties cannot use nuisance laws to regulate farming activity provided the operation was in place before the non-farming development took place. They can use zoning to control non-agricultural uses in agricultural zones.
Section 64.620 allows counties with zoning to pass building restrictions; however, Section 2 states that counties cannot regulate the raising of crops, livestock, orchards, or forestry. It also exempts farm structures from zoning regulations. It also grandfathers operations that were already in existence when the zoning plan was adopted.
Commissioners passed the recent moratorium on data center development as a means of getting answers to their questions about the proposed data center south of Maryville. Commissioner Chris Burns said that they would use the time period in order to look into zoning.
Commissioner Scott Walk said that the county will put together information to put a zoning measure on the ballot, which he estimated would take about a year, which would put a zoning measure on the November 2027 ballot. Mr. Miers was pushing for the commission to act faster. “You can appoint a board today if you wanted to,” he said.
Under Section 64.725 of Missouri Law, county commissions can appoint temporary zoning boards prior to the passage of zoning. That board could study the county, conduct public hearings, and put together a plan to submit for voter approval. The commission, however, cannot appoint a Board of Zoning Adjustment until the zoning plan itself has become officially adopted.
The county is in the process of talking to a lawyer to find out what it can and can’t do regarding data centers. Any steps that the county takes will be done after these consultations. Public health, light, and noise provisions could be put in a development agreement between the county and the data center.
Mr. Miers questioned whether the Rural Water District could sell effluent to the data center. Section 247.010 authorizes the formation of rural water districts to sell water to customers of water that is “pure and wholesome in quality.” Section 247.035 allows rural water districts to petition the local circuit court to allow it to engage in the construction, maintenance, and operation of common sewer treatment facilities; however, it would have to serve ten or more separate properties. Section 247.050 (4) allows a rural water district to dispose of property belonging to the district as provided for by law.
Mr. Miers then called on the county to pass a noise ordinance, saying they had the authority to do so. “You have towns that pass them,” he said. “There is no study showing that engine braking is a hazard to human health, yet many cities pass ordinances against it.” He said that the difference between working in a factory setting and living next to a data center is that, “You can remove yourself from a factory setting.” Commissioner Bill Walker said that they were going to put decibel readings in any agreement between it and the data center. At the June community forum at Mozingo, the data center pledged in one of its charts to keep its noise levels at 50 decibels or less. They are in the process of doing a baseline study to measure the noise at the proposed facility south of Maryville.
Section 49.650 authorizes counties to pass ordinances for nuisance abatement, including noise. Section 192.300 authorizes counties and public health departments to pass ordinances to protect public health. Noise ordinances cannot apply to farming operations, transportation systems, air traffic, or shooting ranges. Unincorporated areas without a noise ordinance are covered under the Missouri Peace Disturbance Statute, which prohibits the creation of unreasonable or loud noise that disturbs or alarms others. Each violation is a Class B Misdemeanor.
Mr. Miers then turned to erosion concerns. Noting the recent washouts from earlier this year, he said, “This is like erosion on steroids.”
Mr. Miers then turned to lithium and water. He noted that there would be buildings with lithium ion in it and noted that if water and lithium come in contact, it could explode, making it hard for area fire departments to put out a fire should it occur. Commissioner Walk noted that he had recently toured another data center and that all it had was sprinkler systems. “I don’t know anyone in the area who uses lithium,” said Mr. Miers.
Commissioner Walker said that they were waiting for a buyer of the project to emerge before they talked about extending Chapter 100 bonds to the center. “Nobody has approached us,” he said. Chapter 100 bonds in Missouri require a minimum 50% tax abatement, and the company would make repayments in lieu of taxes. The Kawasaki plant did such a deal with Maryville; the city technically owned the building, but the company assumed the profits and liabilities and is responsible for the repayment of the bonds. Even if a company were to default, a county or city cannot be held liable for the repayment of bonds. It would be up to the county to approve or reject Chapter 100 bonds for the proposed data center.
The county donated $15,000 to various charitable organizations throughout the county. Tenaska, who operates the wind farm between Hopkins, Clearmont, Pickering, and Maryville, donates the money every year to the county to administer. This year, the county gave $2,000 to The Source, $2,000 to Lettuce Dream, $3,000 to the Ministry Center, and $2,000 to Boys and Girls State.
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