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?
