By Pauline Masson –
After the new city attorney’s ‘on the spot’ rewritten ordinance, the planning and zoning commission (P&Z) voted 7 to 0 to recommend that the board of alderman (BOA) declare a twelve- month moratorium on data centers.
The action took place at the July 14 P&Z meeting.
New city attorney Joe Bond with Vogel Cunningham and Rose, P.C. and Tyler Gillum, the firm’s attorney who will be assigned to represent P&Z attended the meeting and sat on the dais with members of the commission. Only Mr. Bond spoke.
Fourteen individuals signed up to make comments on the issue prior to the vote. Thirteen speakers asked the commission to recommend approval of the moratorium. One individual said data centers are needed.
But a question central to the issue for most speakers was, would the moratorium include the Beltline application to build a data center on the Crooked Creek Farm south of Pacific.
With a bit of waffling back and forth, the gist of what Mr. Bond said was that he was in a gray area giving legal advice in a public meeting without researching the issue first, but he thought his version of the moratorium would include the Beltline application. In other words, Mr. Bond believes that the Beltline application is dead in the water for a year.
Mr. Bond said by adding the phrase no “processing,” applications to the language of the moratorium that he thought it would ban action on the Beltline application for a year.
The nagging rule of no export facto laws (no after the fact bans) in the U.S. wasn’t addressed.
But as one former president was fond of saying, “Here’s the deal.”
In 1779 as the founding fathers were writing the U.S. constitution, leaders established Congress as legislators to make the laws of the land. The document listed all things the legislators could enact into law and prohibit citizens from doing. But there was one thing legislators could not do The constitution expressly forbids after the fact laws. Legislators could not pass an ex post facto law. They could not make something illegal after the fact that was legal at the time it took place.
It seems clear that Beltline’s application was legal when the city accepted it. There was no year long wait for processing.
It was not acted on when it was accepted, but was postponed at Beltline’s request. Several discussions in public city meetings indicate that the Beltline application is still out there, waiting to be acted on.
After Mr. Bond read his version of the moratorium and P&Z commissioners approved it, Alderman Scott Lesh, aldermanic liaison to P&Z weighed in.
“So you can defend it?” he asked Mr. Bond.
Although he still waffled, repeating that he was in a gray area giving legal advice during a public meeting, he grudgingly said he could defend it.
And where would he defend it? In court. With the City of Pacific pitted against the deep, deep, deep pockets of Beltline. At least Beltline executives assured us that they had many millions of dollar to work with.
It occurs to this reporter that Mr. Bond maybe should have listened to his inner voice on this.
It has been clearly demonstrated that the majority of Pacific and Pacific area residents do not want the Beltline data center to be built.
But as my mother always said, “If wishes were horses, beggars would ride.”
I have to tell you . . . I am not an attorney and there may be some wiggle room where Mr. Bond could convince a judge that the moratorium applies to Beltline’s already existing application.
But I truly doubt that we can wish this data center away. In all likelihood the city is going to have to hold its public hearings on this data center application if and when Beltline calls for it.
Where is Ben Franklin when you need him?
Dan Vogel’s favorite saying “I can defend that”. Not that we can win or will lose, but I can defend that.
I think you are absolutely right Pauline.
This one is a bit interesting…
The ordinance published on the Pacific website in the official July 14 agenda packet expressly grandfathered previously filed applications.
Link: https://www.pacificmo.gov/AgendaCenter/ViewFile/Agenda/_07142026-793
So, as posted, it would not suspend Beltline’s existing application. Now the question is, what was actually implemented in the BOA meeting – what the city attorney suggested he could defend, or what was actually published on the city site?
Also, I’m not an attorney, but I believe ex posto facto law only applies to criminal punishment. This is not criminal, but rather (Missouri) civil zoning law. There could still be an argument from Beltline that a vested interest was created when they filed the existing application that was already accepted.
That said, I think the city attorney was correct in that he could defend it in a court. Missouri case law on this is somewhat favoring of the city’s position of there being no vested interested simply because the application was filed and accepted – refer to the below 2023 Missouri case for an example.
https://caselaw.findlaw.com/court/mis-crt-app-eas-dis-div-fiv/2200697.html
Lastly, just want to take a light hearted jab at Pauline here… the Constitution was drafted in Philly in 1787, so you can adjust your Ben Franklin time machine dial slightly. 🙂
First, it was a planning & zoning meeting, not the board of aldermen. P&Z sent a recommendation that the moratorium becomes law that will probably show up on the next BOA meeting. Also, I spent a few hours researching the ex post facto law and I did not find anywhere that it was limited to criminal action. It might be, but I wasn’t convinced. My take on it is, if a city makes a law banning an action that the city considered legal when it was approved it could cause great harm to the applicant. May not be a crime but it ain’t cricket.
Thanks for the heads up on the date. I may need a proofreader.
Plus – here’s a snippet of my reading on ex post facto.
The implications of ex post facto laws in civil contexts are complex.
Definition — Ex post facto laws are those that retroactively change the legal consequences of actions that were committed before the law was enacted.
The U.S. Constitution Online
Historical Context — The original meaning of the ex post facto clause may encompass civil laws, suggesting a broader interpretation.
Civil Application — While traditionally associated with criminal law, some scholars argue that the ex post facto clause can apply to civil laws as well.
Just food for thought.
I’m curious about whether Bill’s property was ever annexed by the city of Pacific. If not, then why would Beltline even worry about what the city does or doesn’t do? It seems that they could simply move their request before the County. Obviously, I’m just a simple carpenter with no background in the law. This just seems like, in the words of Macbeth, “it is a tale…full of sound and fury, Signifying nothing.”
You are right, Tom. We don’t know what Beltline plans to do. Beltline may be through with Pacific. There is an application for the Crooked Creek data center still postponed at P&Z. That application will have to be disposed of in some way – held – withdrawn by Beltline. As an old reporter who had witnessed and reported on hundreds of developments working their way through municipal government, my take on this is that is that it has to play out. if Beltline wants to go forward with the public hearing I believe the city is obligated to hold it. The two attorneys, Stephanie Karr and Joe Bond, have given hazy, qualified advice on the issue. If the aldermen know what they hope to achieve, I have not been able to pick up on it. So we wait.