A city committee held a proposed yearlong moratorium on data centers in Milwaukee after the city attorney’s office said it lacked a public hearing and cast doubts about its legality.
The city attorney’s office would have had to deem the moratorium as legal and enforceable before it heads to the Common Council for approval.
The July 28 backstep by the Zoning, Neighborhoods and Development Committee reflects the rushed and legally unprecedented nature of the Common Council’s attempts to confront data centers, a relatively new industry that has become a political lightning rod as they proliferate across the nation, including Southeast Wisconsin.
“The moratorium cannot be approved this cycle because it lacked the appropriate public notice and public hearing for a zoning change. Therefore, we cannot sign off on it as legal and enforceable at this time,” Mary Schanning, a deputy city attorney, wrote to City Clerk Jim Owczarski in a July 27 email that was made public.
Ald. Marina Dimitrijevic, a co-sponsor of the moratorium, said she wanted to enact a temporary halt on data centers because long-term regulation is a long and “extremely difficult” legislative path. A zoning proposal that would ban data centers larger than 60,000 square feet and strictly limit smaller ones is awaiting Plan Commission review.
“It is my hope that it would be regulated,” Dimitrijevic told the zoning committee. “But in the meantime, we must pause until we get the regulations in place.”
But the moratorium also needs to follow a legislative process like that of a new zoning regulation, including a public hearing, City Attorney Evan Goyke said. Rushing that process and facing legal challenges is “the last thing we want to do,” he said.
“A municipality may not enact a development moratorium ordinance unless it holds at least one public hearing at which the proposed ordinance is discussed,” part 66.1002(3)(c) of Wisconsin’s state statutes reads.
After the committee meeting, Dimitrijevic told the Journal Sentinel that while she was “slightly disappointed” that the moratorium was held, she took the meeting as an opportunity to let the public hear about the efforts, both from elected representatives and the city attorney.
The next Plan Commission meeting where this proposal can face a public hearing is on Sept. 28, City Planning Director Tanya Fonseca said. From there, it would return to the zoning committee on Oct. 6 and reach the Common Council on Oct. 13.
City attorney casts legal doubts on data center ban
Beyond the legislative process, the city attorney’s office has cast doubt on the legality of the moratorium itself.
Under the proposed moratorium, the city would automatically reject any application or permit, occupancy or zoning request for a data center in the next year, or until the city’s zoning code is amended to define and regulate data centers.
That rule is likely to face legal challenge because it singles out an entire industry without a strong factual record that the industry, in its essence, is harmful to public health and welfare, the city attorney’s office said in a June 29 letter to Dimitrijevic.
The office represents the Common Council and the city of Milwaukee, among various municipal entities.
Data centers vary in size, from a warehouse to a “closet with half a dozen servers,” the attorney’s office said. A court may claim that a moratorium that bans all data centers, regardless of scope, does not solve a specific public health or welfare risk and is thus an overreach of the city’s regulatory power, the attorney’s office said.
The proposed moratorium defines a data center as a facility mainly used to operate computer or network facilities, accompanied by supportive uses like offices, power generators and water cooling facilities. It explicitly rules out any facility, like a computer server room, that supports a different primary use of the site.
The proposed zoning ordinance that limits data centers based on scale — a total ban for those greater than 60,000 square feet and strict limits for those smaller — is more likely to withstand the legal questions about overreach, the attorney’s office said.
That proposal has four more co-sponsors on the Common Council than the moratorium, which has the support of four council members.
“It is our opinion that a wholesale ban of data centers is more likely to invite a legal challenge alleging the ban is an invalid exercise of police power, violates equal protection, and is a taking, among other possible claims,” the city attorney’s office said.
This article originally appeared on Milwaukee Journal Sentinel: Data center ban cannot pass until public hearing, city attorney says
Reporting by Jaeha Jang, Milwaukee Journal Sentinel / Milwaukee Journal Sentinel
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By Jaeha Jang, Milwaukee Journal Sentinel | USA TODAY Network
