The Ohio Supreme Court has ruled in a dispute between the Clinton County Board of Elections and a group of Wilmington residents over a proposal to add data center regulations to the November ballot.
The court majority ruled in favor of the board of elections. The petition initiative aimed to put stronger regulations on data centers in Wilmington’s zoning code.
But a clause in the ordinance also would’ve allowed people to sue data centers for zoning violations.
Six of the seven justices wrote the city doesn’t have the legal grounds to enact that rule, according to the court.
“We concluded that the respondent board members did not act improperly excluding the proposed ordinance from the ballot,” the Sept. 18 majority opinion reads.
The Clinton County Board of Elections rejected the ballot issue before it went to the Supreme Court. In a statement, Board Director Andrea Tacoronte wrote that the board appreciates the court affirming its decision.
“This timely decision allows the Board of Elections to remain focused on preparing for the November election. Election officials are under tight deadlines as they gear up to execute a secure, accurate, and orderly election,” she wrote in a statement. “We appreciate the Court’s prompt attention, the professionalism of everyone involved, and the continued dedication of the board’s staff during this demanding period.”
$4 billion data center
The initiative stems from a proposal to construct a $4 billion Amazon data center in Wilmington.
“It gets down to what is in the Wilmington code and is it sufficient to protect the property rights of people who already live here. And it really wasn't,” Quintin Koger Kidd said. He’s one the residents that helped draft the initiative.
For the past year, locals have called for stronger safeguards to prevent negative impacts from neighboring a data center.
“Sound, noise, how far or close should those buildings be to a residence, those sort of things that are traditional land use issues,” Koger Kidd said.
Other provisions found in the initiative include documentation of chemicals found in wastewater, generator use logs to be retained by city officials, and rules around decommissioning and site restoration.
Koger Kidd said the petition received more than the number of required signatures within a week and a half.
He said he’s disappointed in this outcome.
Koger Kidd said the three residents received legal counsel on their ballot language and consulted with an AICP-planner to craft the ordinance language, and that section wasn’t flagged.
“As part of this, we had language specifically set in the initiative that if any of the parts (were) incompatible with the law, that that would be removed,” Koger Kidd said.
The justices didn’t acknowledge this section in their written opinion. While Tacorante declined to comment on the legal argument, she pointed to a section in Ohio’s Revised Code that states “No alterations, corrections, or additions may be made to a petition after it is filed in a public office.”
Now they will have to redo signature-gathering to add the ballot issue, Koger Kidd said they will revisit some of the initiative’s language too.
“We are going to take a step back, review the proposed initiative, and identify areas where it can be more robust,” he said.
Lone dissent
The lone justice that ruled against the Board of Elections, Justice Patrick Fischer, wrote in his dissenting opinion that boards of elections don’t have the authority to decide whether ballot language is legal, and shouldn’t have had the authority to disqualify a ballot issue for that reason.
“Even if the proposed ordinance is outside the municipality’s authority to enact, that is a legal determination that must be made by the judiciary in the postenactment process,” Fischer wrote.
While this ordinance won’t be on the ballot, Koger Kidd said there will be four referendums on the ballot in November to reverse the decision to rezone parcels from residential to light industrial.
