WATERVILLE TOWNSHIP – The 34-person capacity Waterville Township hall was packed on July 20, with residents eager to listen and weigh in on a proposed zoning text amendment that would set the rules for data centers and other campus style developments.
While the Zoning Commission – including Chair Keith Moosman and members Bill Burkett, Bob Long, Jon Poponak and Cathy Vorst – didn’t make any decisions or even set a public hearing on the proposed changes, the meeting did provide an opportunity to discuss the process and questions about annexation and conflict of interest.
After five months of intense work, the Data Center Advisory Committee and Trustee Toby Miller announced the proposed changes in May. These include the addition of an M-3 zoning classification and changes to the current M-1 and M-2 language. Over the past two months, the document has been posted online, discussed in public forms and reviewed by the Lucas County Planning Commission (LCPC), which made “no recommendation” and punted the matter back to the township. The goal is to get the changes put into place before the one-year data center moratorium expires at the end of the year, Miller said.
The new language would replace the current zoning, which permits data centers in agriculturally-zoned areas with a conditional use permit (CUP) approved by a five-person, appointed Board of Zoning Appeals (BZA). The CUP process is administrative and not subject to referendum, while a zoning change is considered legislative and therefore open for citizens to file a referendum to let voters decide.
Assistant County Prosecutor John Borell has cautioned trustees that this new language is setting a new legal precedent that might not hold up in court. Miller shared the eight specific concerns from Borell, plus the answers from the township’s Columbus-based legal team of Brossius, Johnson and Griggs assuring that the language is legally sound and defensible.
Former trustee Karen Schneider said she trusts Borell’s judgment, and believes that the township wouldn’t have the financial means to support itself if a data center developer decided to sue on even one aspect of the regulations outlined in the new language.
“I appreciate the boldness of what you all are doing, but I think complexity here equals defeat, because we don’t have the legal finances or the wherewithal to fight that,” she said.
Instead, she suggested the township follow Borell’s advice to put all of the details in the 67-page document into the zoning book as conditions required to get a permit in an M-2 district. She also cautioned that adding an M-3 to the zoning resolution would open the township up to projects that, a few years ago, never would even be considered as compatible uses in the community.
“Heavy industrial and the way we live now – they don’t even fit into the same sentence,” Schneider said.
Burkett also agreed with the idea of adding many of the conditions into the zoning resolution, which has been updated many times as the township has changed. He disagreed with Miller’s assertion that nothing is on the books to provide guidelines for such a large project.
“We’re not all chicken farmers here looking at backwards regulations. I understand you did a lot of work on it, but for over the past 10 to 15 years we’ve been working on those regulations. The best thing we could do to respond at the time was to look at conditional uses – that gave us the power to address some of those issues,” he said.
The township’s legal team is considering all legally-viable ideas shared by residents and committee members. Lyn Cox asked for an update on her requests for a 1,000-foot setback from schools, churches and residences; to prevent cryptocurrency or data mining projects; and to ban discharging of wastewater into area streams and fields.
A crytocurrency or data mining operation wouldn’t be approved because the noise levels wouldn’t meet the standards included in the M-3 language, Miller said. The setbacks are being considered by the legal team, although Miller noted that they need to be cautious on adding requirements that might be deemed as punitive.
“If they are punitive, they will sue. And if they sue, the entire zoning resolution will be thrown out. It is threading a needle,” Miller said.
Requiring a data center to discharge into a sanitary sewer line would be problematic, as there are no sanitary sewers anywhere in the township, Miller said. And wastewater discharge is governed by the EPA – which Cox pointed out is “loosening their requirements.”
If a data center is required to hook up to sanitary sewer, their primary option would be to ask Waterville or Whitehouse for services, and this would prompt those municipalities to ask the developer to annex. Then all of the regulations the township has put into place wouldn’t be applicable.
The township is currently working on strengthening its annexation agreements with the city and the village, but Miller said some areas are already considered open to annexation, such as the area west of the Port Authority land on Neapolis Waterville Road.
The Zoning Commission members agreed to wait until the Columbus law firm provides updates on all the questions before setting a date for a public hearing in early August. During that hearing, commission members will take input from residents, and then vote on whether they recommend passage. The trustees will then hold their own public hearing and make a final decision on whether to adopt the zoning text amendments.
For now, only Miller and Trustee Julie Theroux are set to vote, as Trustee Kyle Hertzfeld has recused himself because a distant relative with the same last name could stand to benefit from a data center development.
“There is no reason for him to recuse himself. He doesn’t own land [that could be sold to a developer for a data center] or adjoining properties. He has no financial interest. His last name just happens to be Hertzfeld,” Miller said.
BZA member Jill Lipinski questioned whether Zoning Commission member Bill Burkett should be allowed to vote, as he is an employee of Regional Growth Partnership, which she said is working with the county to bring data centers to the community.
“There’s no conflict of interest for me to serve on this board just because of what job I have. If there is an application that is submitted and somebody believes there is a conflict because my employer has a reason to benefit from that, then there might be a conflict of interest. But strictly because of who I work for is not a conflict of interest,” Burkett said, asking Lipinski to contact the Ohio Ethics Commission for clarification.
Miller said he contacted the OEC and the county already, to determine if any member of the Zoning Commission, BZA or board of trustees has a conflict. They found none, he said, including Burkett or Hertzfeld.
Resident Bryan Imes suggested the people in the audience contact Hertzfeld too, and Miller agreed that a show of support might be helpful.
“We voted him in this position to represent us,” Imes said. “For him to recuse himself…doesn’t help the cause. He could go on the record and say he’s against it [data centers].”
Miller pointed out that Hertzfeld sent a written statement opposing data centers, and that was read aloud during the July 10 meeting. He agreed that it hurts the township to not have all three trustees weighing in.
The Zoning Commission did not set its public hearing, but will need to provide a 10-day notice to residents prior to that date. The trustees meet on July 22 at 6:30 p.m., and cannot set a public hearing on the matter until the Zoning Commission holds a public hearing and votes on a recommendation.
