This is an official request to compel the Kansas Attorney General to hold the City of Edgerton accountable for circumventing the required legal process that effectively tried to steal the citizens’ voices, the planning commission and council’s vote, and the citizens’ right to appeal a zoning change – in violation of K.S.A. 12-757 and in favor of their preferred developer NorthPoint’s profit and interests.
Failure to follow the procedure “renders its action invalid.” Zimmerman v Bd of Cnty. Comm’r, 218 P. 3d 400, 410 (Kan. 2009)
September 03, 2026
by Jennifer Williams
As cities across Kansas are fighting their independent battles to have a voice in the growth and future of their communities, the common underlying theme is unequal application of the law, lack of due process, and favoring developers over the residents – as mentioned in the previous article about the recent Barber County vote.
Unlike in that situation, where it is a no-zoning county so K.S.A. 12-757 does not apply, in Edgerton that is not the case.
For ease of setting the stage and giving a clear understanding of the violations by the Edgerton City staff, with the continued support of their attorney and certain council members, there will be plenty of screen shots showing the flow-chart of how this unfolded.
For the sake of the reader’s attention span, the summary is:
Edgerton city staff issued a letter at their “preferred developer” NorthPoint’s request, giving them “by right” permission (necessary legal language they needed to further their future strategy of no public zoning hearing) for data centers to be grouped into the existing Unified Development Code “manufacturing – limited” category (unrelated to data centers and “limited” at that, meaning it did not have a broad enough scope for the extensive needs of a data center, nor is a data center similar to a manufacturing facility in public health, safety, infrastructure, and resource concerns.)
This decision bypassed the legally required zoning change statute, K.S.A. 12-757, cutting out the public, threatening the planning commission and city council that all site plans must be approved or else they would be sued by the applicant, and eventually has ended up in court with today’s hearing of the City of Edgerton vs. Carrie Schmidt, et al.
The violation of this statute should render the city’s actions invalid, removing the zoning change “by right” letter and forcing any future inclusion of Data Centers in the Unified Development Code to follow the required legal process.
Grab a cup of coffee, and let’s dive into the tedious but important details of holding a city accountable to the people they represent and not the developers and their attorneys, who are trying to run the show.
We begin this journey with how the public eye first became aware of the request for a data center in the LPKC Industrial Park in Edgerton, Kansas.
The public process began during a planning commission meeting on May 12, 2026 where the following items were on the agenda – both a preliminary and final site plan approval for DAMAC Digital.
No other details are listed on the agenda, but the agenda packet included more details, including this May 5th letter from the City Administrator, Beth Linn, making sure the public knew there was no rezoning required and trying to get ahead of the narrative by addressing some concerns they knew the public would have with their own FAQ statements, info from Evergy, and advertising propaganda from the Kansas City Area Development Council.
Let’s look at the comment from City Administrator, Beth Linn, on this “site plan application.” She is effectively saying there is no rezoning process required and it’s time to proceed with the next step, approving both the preliminary AND the final site plan so DAMAC can get up and rolling without any public input. We’ll revisit those details soon. But first things first, the statement about rezoning”
“The property is currently zoned Logistics Park (L-P) which allows data centers as a permitted use; therefore no annexation or rezoning required.”
This point is the entire premise of the lawsuit that Attorney General Kobach needs to file against the City of Edgerton in the interest of the protection of the public to force local governments to comply with the law. The reason this case should be compelling to him is because it would help set a precedent to protect future cities from the egregious act of their cities violating zoning statutes in favor of their preferred developers.
Cities in Kansas have “home rule” powers, but they cannot pass ordinances that directly contradict state statutes or the U.S. Constitution. Acting in open defiance of established superior laws is considered an egregious abuse of authority.
The State statute that governs this situation is K.S.A 12-757. Read the red highlights for the summary but the whole thing is important.
12-757. Same; zoning; downzoning or rezoning, amendments and revisions; procedure; notice and hearing; protest petition; signs to notify of proposed rezoning. (a) The governing body, from time to time, may supplement, change or generally revise the boundaries or regulations contained in zoning regulations by amendment. A proposal for such amendment may be initiated by the governing body or the planning commission. If such proposed amendment is not a general revision of the existing regulations and affects specific property, the amendment may be initiated by application of the owner of property affected. Any such amendment, if in accordance with the land use plan or the land use element of a comprehensive plan, shall be presumed to be reasonable. The governing body shall establish in its zoning regulations the matters to be considered when approving or disapproving a rezoning request. The governing body may establish reasonable fees to be paid in advance by the owner of any property at the time of making application for a zoning amendment.
(b) All such proposed amendments first shall be submitted to the planning commission for recommendation. The planning commission shall hold a public hearing thereon, shall cause an accurate written summary to be made of the proceedings, and shall give notice in like manner as that required for recommendations on the original proposed zoning regulations provided in K.S.A. 12-756, and amendments thereto. Such notice shall fix the time and place for such hearing and contain a statement regarding the proposed changes in regulations or restrictions or in the boundary or classification of any zone or district. If such proposed amendment is not a general revision of the existing regulations and affects specific property, the property shall be designated by legal description or a general description sufficient to identify the property under consideration. In addition to such publication notice, written notice of such proposed amendment shall be mailed at least 20 days before the hearing to all owners of record of real property within the area to be altered and to all owners of record of real property located within at least 200 feet of the area proposed to be altered for regulations of a city and to all owners of record of real property located within at least 1,000 feet of the area proposed to be altered for regulations of a county. If a city proposes a zoning amendment to property located adjacent to or outside the city’s limits, the area of notification of the city’s action shall be extended to at least 1,000 feet in the unincorporated area. Notice of a county’s action shall extend 200 feet in those areas where the notification area extends within the corporate limits of a city. All notices shall include a statement that a complete legal description is available for public inspection and shall indicate where such information is available. When the notice has been properly addressed and deposited in the mail, failure of a party to receive such notice shall not invalidate any subsequent action taken by the planning commission or the governing body. Such notice is sufficient to permit the planning commission to recommend amendments to zoning regulations which affect only a portion of the land described in the notice or which give all or any part of the land described a zoning classification of lesser change than that set forth in the notice. A recommendation of a zoning classification of lesser change than that set forth in the notice shall not be valid without republication and, where necessary, remailing, unless the planning commission has previously established a table or publication available to the public which designates what zoning classifications are lesser changes authorized within the published zoning classifications. At any public hearing held to consider a proposed rezoning, an opportunity shall be granted to interested parties to be heard.
(d) Except as provided in subsection (g) and unless otherwise provided by this act, the procedure for the consideration and adoption of any such proposed amendment shall be in the same manner as that required for the consideration and adoption of the original zoning regulations. A majority of the members of the planning commission present and voting at the hearing shall be required to recommend approval or denial of the amendment to the governing body. If the planning commission fails to make a recommendation on a rezoning request, the planning commission shall be deemed to have made a recommendation of disapproval. When the planning commission submits a recommendation of approval or disapproval of such amendment and the reasons therefor, the governing body may: (1) Adopt such recommendation by ordinance in a city or by resolution in a county; (2) override the planning commission’s recommendation by a ⅔ majority vote of the membership of the governing body; or (3) return such recommendation to the planning commission with a statement specifying the basis for the governing body’s failure to approve or disapprove. If the governing body returns the planning commission’s recommendation, the planning commission, after considering the same, may resubmit its original recommendation giving the reasons therefor or submit new and amended recommendation. Upon the receipt of such recommendation, the governing body, by a simple majority thereof, may adopt or may revise or amend and adopt such recommendation by the respective ordinance or resolution, or it need take no further action thereon. If the planning commission fails to deliver its recommendation to the governing body following the planning commission’s next regular meeting after receipt of the governing body’s report, the governing body shall consider such course of inaction on the part of the planning commission as a resubmission of the original recommendation and proceed accordingly. The proposed rezoning shall become effective upon publication of the respective adopting ordinance or resolution.
(f) (1) Except as provided in subsection (g), whether or not the planning commission approves or disapproves a zoning amendment, if a protest petition against such amendment is filed in the office of the city clerk or the county clerk within 14 days after the date of the conclusion of the public hearing pursuant to the publication notice, signed by the owners of record of 20% or more of any real property proposed to be rezoned or by the owners of record of 20% or more of the total real property within the area required to be notified by this act of the proposed rezoning of a specific property, excluding streets and public ways and property excluded pursuant to paragraph (2) of this subsection, the ordinance or resolution adopting such amendment shall not be passed except by at least a ¾ vote of all of the members of the governing body.
(2) For the purpose of determining the sufficiency of a protest petition, if the proposed rezoning was requested by the owner of the specific property subject to the rezoning or the owner of the specific property subject to the rezoning does not oppose in writing such rezoning, such property also shall be excluded when calculating the “total real property within the area required to be notified” as that phrase is used in paragraph (1) of this subsection.
What does this mean?
Basically, when a rezoning or an amendment to an existing zoning district happens, the statutes set forth a required process that allows all affected to have a say – from a required notice in the paper and notice mailed to certain neighboring property owners, to a public hearing, with a vote of the planning commission, eligible protest petitions, and a vote of the city council. There is also a right to appeal the decision in district court. This transparent act coincides with the Golden Criteria established in the Supreme Court case, Golden v. City of Overland Park (Kan. 1978), which is to consider how these major changes will affect or cause harm to the neighboring residents. This also gives the citizens a right to appeal the decision after the vote. These points are important and will be repeated.
The important thing to remember here is the letter by Beth Linn states, “The property is currently zoned Logistics Park (L-P) which allows data centers as a permitted use; therefore no annexation or rezoning required.”
She says it’s a permitted use, but:
– Where is it permitted?
– Who allowed it to be permitted?
– When was that public hearing held, and when did the planning commission and governing body take a vote of that permitted use?
The answer is, never. The city staff made this decision on their own as you’ll see in a moment.
Her comment was designed to circumvent (“short circuit” as we will refer to it later, using the City Attorney’s own words) the statutorily required public process because the current Unified Development Code (UDC) for Edgerton in Section 5 lists approved uses under the LP District, and data centers and substations are not listed – at all. Therefore, they would require an amendment to be included, using the public process as outlined in K.S.A. 12-757 – that was circumvented and instead, the city staffed included Data Centers “by right” under the category #6 below. (That letter will be presented below)
During the “site plan” discussions, the planning commission had some concerns on the project for noise and other direct concerns related to data centers.
Those items will not be covered here. The point for this summary is that they had concerns, the item was tabled to the June 9th meeting, where they were basically told by the city attorney and staff that they were only supposed to consider the limited criteria for site plans and could not discuss the other mentioned concerns related to data centers.
In fact, it was mentioned more than once that the city could be sued if the application fit the limited site plan criteria but was denied. The reason will be covered later in this article – but it was because of the “by right” language NorthPoint had the city write and sign in a letter to them for their Data Center buyer.
For the sake of driving home the point of how egregious the bypassing of K.S.A. 12-757 was, let’s show those limited points of a site plan that the planning commission and city council were being told was all they could consider, and nothing more.
The summary on the city’s webpage says:
Site plans are detailed, scale drawings showing the proposed development of a specified parcel of land, including the location and design of buildings, easements, utility layouts, parking arrangements, public access, street patterns, drainage controls, existing vegetation and natural features, landscaping, lighting and other similar features.
The Planning Commission reviews the site plans to determine if they demonstrate a satisfactory quality of design in the individual buildings and the site, the appropriateness of the building or buildings to the intended use, and the aesthetic appropriateness of the development to its surroundings.
For specific details regarding site plan requirements for Logistics Park Zoning, please see Article 5, Section 5.2 of the Unified Development Code.
As you can see, the site plans for LP Logistics Parks zoning in the UDC have a VERY limited scope. There is nothing there to address the unique needs of data centers such as sound, wastewater effluent, water usage, electric grid load, health, environment and safety, infrasound, decommissioning, EMF exposure, setback needs, and other issues being addressed across the country.
By tying the planning commissioners’ hands to a limited scope of site plans, they were able to steamroll the process with as little oversight and protection for the health and safety of the residents as possible, outside of all public hearings and governing body oversight.
When the planning commission ultimately denied the request, it went to appeal to the city council, where it was overturned – allowing DAMAC to continue.
During this process, there was a request by a council member for the City Council to consider a moratorium on data centers.
So on June 11, 2026, there was an agenda item to consider a moratorium for data centers (that would have excluded the DAMAC project.)
Although the minutes claim they don’t have to include everything discussed (another reason many have assumed they never livestream for a complete account of the discussion), the minutes from the June 11, 2026 Council meeting states the following:
10. CONSIDER RESOLUTION NO. 06-11-26A OF THE CITY OF EDGERTON, KANSAS, IMPOSING A MORATORIUM ON THE SUBMISSION OF REZONING APPLICATIONS, VARIANCES, PLATS, SITE PLANS, AND OTHER SUBMISSIONS UNDER THE EDGERTON UNIFIED DEVELOPMENT CODE FOR DATA CENTERS
The provided minutes are a summarization of the official actions and formal decisions of the referenced City Council Meeting. The law does not require meeting minutes to be a full and complete transcription of the meeting. Minutes are retained in accordance with State record retention and archiving laws.
Edgerton City Council Regular Session June 11, 2026 Page 5
Public Works Director, Dan Merkh, stated on May 28, 2026, Council provided consensus to bring forward a resolution to consider a moratorium on the submission of rezoning applications, variances, plats site plans and other submissions under the Edgerton Unified Development Code. This Resolution will not halt or restrict any filed applications submitted prior to this resolution for Data Center uses within the B-P and L-P districts. City Attorney, Todd Luckman recommended an amendment to the resolution to take out the line “with only administrative approvals pending,” to clarify that the moratorium does not impair vested rights of landowners.
Councilmember Lewis motioned to deny item ten on the Business Requiring Action items, seconded by Councilmember Longanecker. The motion carried 3-2 by the following vote: Yes: Longanecker, Lewis, Malloy No: Conus, Lebakken
Again, the citizens and concerned council members are trying to get proper guardrails in place for data centers, but continue to get shut down. During this time there was also an executive session that was reported to the Attorney General for not stating the specific purpose of the session, Kansas Open Records Violation concerns (KORA), and other things that were not transparent, but the next important thing to see in walking out the K.S.A 12-757 violation is the language of the proposed moratorium, had it passed.
The agenda item agrees that any amendments to the UDC require the proper procedure outlined in K.S.A. 12-757 (that was never followed when “The City” on or about April 03, 2025 determined that Data Centers were an allowed use in certain zones of the City, in B-P (Business Park) and L-P (Logistics Park) districts.
Data Center Moratorium Resolution Language:
This is where their scheme starts to unravel.
First of all, who is “the City” in the resolution language below, written by the city attorney, Todd Luckman that “determined that Data Centers were an allowed use?”
Second, the City Attorney who drafted this potential resolution for consideration agrees with the facts that:
1. Data centers have unique needs that need their own standards addressed, as stated, “current zoning and development standards may not adequately address the unique characteristics, demands, and potential effects of data centers, which are a rapidly growing and evolving land use across the United States;” and
2. The proper revisions to the Unified Development Code, following K.S.A. 12-757, are necessary to ensure consistency and fairness, as seen in his statement, “Further, that the time limit of Six (6) months would allow City staff the necessary time to study the issue and make recommendations to the Planning Commission and City Council regarding revisions to the Unified Development Code and other standards related to data centers, and ensure consistency and fairness by preventing nonconforming uses that could undermine a comprehensive zoning plan.”
These acts of the City of Edgerton staff, attorney, and certain elected officials show repeatedly where there are unique zoning needs of data centers, but there was never the proper statutory process followed to address these needs.
Let’s shift gears and focus on this date of April 3, 2025 when “The City” supposedly approved data centers in LP Logistics Parks.
Let the screen shots show for the record that the City did not have a City Council meeting or Planning Commission meeting on April 3, 2025 where there would have been a public hearing or vote on the matter. And the City Council and Planning Commission agenda immediately prior to this date shows there was no UDC change for data centers for “The City” to decide this decision per the statutory process.
City Council meeting on March 27, 2025
Planning Commission agenda March 11, 2025
If The Governing Body did not vote for this zoning amendment to the UDC to allow data centers under the LP Logistic Park category, then who did?
This is where the case is supported that the City Administrator and the City Staff unilaterally made this decision on their own, for “by right” AT THE REQUEST OF then building owner NorthPoint Development, (known in development documents with the city as the city’s “preferred developer”), used repeatedly by the attorney for DAMAC, Husch Blackwell (the firm where Johnson County Chairman, Mike Kelly, is a partner) and supported by the approval of the City Attorney who continues to defend the city’s position on the matter instead of advising them of their legal obligation for the public hearing, planning commission vote, and city council vote per K.S.A. 12-757.
“The City” is not the staff, but the residents who are protected by their representative governing body and a proper legal process.
Let’s see the supporting documents. Thanks to some astute and persistent citizens, open records requests were made and the following documents were revealed that were never put on the original public record.
This is the April 3, 2025 reference where “The City” added data centers to the UDC.
Why did they write this letter, and why this language? Let’s find out.
“City staff has been made aware of the increase in interest for Data Centers as a land use in the City of Edgerton along with the Kansas City region as a whole. Data Centers most align with the ‘Manufacturing, processing, fabrication or assembly of commodity – limited’ use as identified in the City’s Unified Development Code (UDC) . . . This use is currently permitted by-right in the B-P (Business Park) District (UDC, Article 5.1) and the L-P (Logistics Park) District (UDC, Article 5.2).” and is signed by Zachary Moore, Development Services Director, City of Edgerton, KS.
So here we have a city employee writing a letter on City letterhead “To Whom it May Concern:” authorizing Data Centers “by right” in an existing UDC category. There was no required zoning changes or governing body discussion to include a Data Center as an authorized use under the official UDC but is instead unilaterally (with approval of his boss and legal council most likely since they both continue to defend this position and therefore would be believed to have authorized) decided “Data Centers most align with” an existing category that required no public hearing.
As we have seen from the language of the UDC, Data Centers are not listed as a permitted use. Stating that it “most aligns with the manufacturing, processing, fabrication, or assembly of commodity – limited” is not even a reasonable category for data center concerns.
As we have seen from the proposed Resolution for a Moratorium written by the City Attorney, Data Centers have their own unique needs.
As we have seen from K.S.A. 12-757, any amendments to the zoning code require a public hearing, a planning commission vote, and a city council vote.
Therefore, it is evident that the City staff, usurped the authority of the governing body and the statutorily required process in order to avoid the public process and requirements of K.S.A. 12-757.
But who is he writing it to, and why?
Who is, “Whom May it Concern,” other than the citizens paying his salary who have been cut out of the process with this letter?
The email below shows it is none other than an employee of NorthPoint Development, the “preferred developer” of the city and, at that time, owner of the building that would be transferred to DAMAC.
“As previously discussed, please see the attached Use Determination letter for Data Centers in the City of Edgerton.”
Discussed when? This was never on public record, and what does this “by right” mean and where did that language come from?
It appears Zachary and Brody from NorthPoint had an earlier email exchange on March 21, 2025 with Brody asking again for the letter they discussed to be drafted “from the City of Edgerton that states Data Centers are a by-right use under the L-P zoning district and sign it”
There it is again “by-right” – and it is being requested specifically from the City of Edgerton and signed so NorthPoint can use it to show potential data center operators their ability to permit the data center under the current code – without a public hearing (a major hurdle, since there has been much public opposition in the current environment across the country, and it would legally allow protest petitions, which require a super majority of the governing body to approve the rezoning – 4 council votes instead of the regular 3 majority.)
What does this mean:
By-right development (also called as-of-right development) is a construction or land-use project that complies with existing local zoning laws and building codes, allowing it to proceed without needing special discretionary approvals or public hearings.
Or in other words, WITHOUT the public hearing and vote of the planning commission and governing body as REQUIRED by K.S.A. 12-757. Here we see the owner of the building (preferred developer) and the city staff colluding to cut the public out of the public process to legally address the unique needs of data centers to zone them properly.
It was this “by right” language that DAMAC and the City Attorney used to threaten the planning commission and city council that they could be sued for denying the minimal site plan because the city staff, without proper statutory authority, already promised “by right” that there would be no public hearing required and no special approvals.
This circumvention of the law should be grounds for recall, termination and prosecution for every person involved.
But who all is involved? On March 28, 2025 Brody from NorthPoint had to follow up with Zach again for the letter request from March 21st, and it would be April 03, 2025 before he complied, and the City Administrator agreed it was the date added “by right.”
On December 12, 2025, Zachary sends a letter to Husch Blackwell, the law firm for DAMAC and says “Edgerton staff made a determination in April 2025 that data centers are considered to be a use permitted by-right in the L-P District.”
All of these documents were provided by the city’s attorney, Todd Luckman, confirming how data centers were classified “as a permitted use.” This is the same attorney who wrote a resolution recognizing their unique needs but is justifying staff circumventing K.S.A. 12-757 with a by-right letter.
Furthermore, in email communication with a resident, Todd specifically said there was no public hearing required and no appeal available. This is important when we cross-reference this to his claim in the Declaratory Judgment request when he sued the citizens.
Citizen Ballot Initiative Challenged by the City
In Point 14, the City admits that on April 3, 2025, upon request, the staff determined Data Centers could be included under the existing B-P and L-P code (staff, not the governing body)
In #22, the City and attorney admits the Governing body as not reviewed the nature of High Impact Data Centers.
In Point B, the City and attorney admit the planning process ensures that growth is done in an orderly manner; yet, that legally required planning process in K.S.A. 12-757 was circumvented by a staff opinion using the exact language requested by their “preferred developer” to avoid a public hearing.
In #33, the City and the attorney claim a restriction would “be deemed a taking of any property interest developed for industrial use” yet fails to address the taking of property interest of neighboring affected property owners, since the Golden criteria were never addressed in the proper procedural public hearing and the Data Centers impact have not been studied by the City.
Furthermore, they exaggerate the claims of “any property interest developed for industrial” because the petition only addresses Data Center uses and not “any” industrial use.
In #40, the City and the attorney continue to favor the developer’s relationship with the City over the duty the City owes to the citizens and neighboring property owners. Their continual argument for “a taking” of the developer’s interest only solidifies their bias to the developers over “the taking” it would be of the citizen’s property rights, by not addressing the Golden criteria harm to neighboring property owners and by cutting them out of the required legal process.
They go on to say “The Defendants will still be able to address the desire to prohibit or control data center construction at all levels of government, and through the normal process allowed for changes to zoning controls” yet when they tried with a moratorium, forcing the required K.S.A. 12-757 public hearing with appeals, they were continually shut down by the city because “staff” had unilaterally given the developers a “by right” letter, setting the City up for the very “taking” lawsuit they are trying to blame on the citizen’s petition. It was staff’s decision to write that letter that created a legal concern, not the citizens’ desire to follow the statute for proper planning and zoning changes and proper ballot petitions when ignored.
In #41 they state “the public has an interest that is established and predictable . . . State law has provided rules that create planning commissions and methods of appeal that balance the needs of landowners with the needs of the public, and this action “short circuits” that process. . . The City ordinance and zoning process can best address any such issues, limited damages to the Defendants.”
The attorney just proved the case. K.S.A. 12-757 is the State law provided to create planning commissions and methods of appeal that balance the needs of landowners with the needs of the public (also land owners).
The City staff themselves “short circuited” that process when they allowed staff to write a letter adding Data Centers “by right,” a significant zoning change, without the proper statutory procedure of K.S.A. 12-757 being followed, and Todd Luckman defended their decision instead of fulfilling his legal obligation to inform them of the required legal process.
Instead, he gaslit the opposition to tell them there was a process, while telling them the process didn’t have to be followed by the City because they wrote a “by right” letter instead. His entire premise is a circular argument pointing all blame back to himself, the staff, and the complicit mayor and council members.
The City staff cut out the public by design to give the developer a letter “by right” that they knew they would then be able to use in a legal challenge to prove the City gave them permission. So if anyone tried to go back on that, they would threaten a “taking lawsuit.”
The City staff had no authority to create that letter, and the City Council members who denied the moratorium for the proper zoning procedure are all guilty of misconduct in office for refusing to denounce the letter that cut out their constituents. Their one job is to represent the public, and instead they handed the reins over to the bureaucrats to steamroll the citizens in favor of the developers. This is not their first offense of this behavior. It is a pattern in Edgerton.
To add insult to injury, he claims he was only allowing the Defendants to be part of the process, claiming in court today that “the National Guard couldn’t keep me away if I was a petitioner” (when justifying why the Defendants should be happy to be included in his lawsuit) but he continues his gaslighting by refusing to admit that his Declaratory Judgment request wasn’t just a request to call the petition unlawful as an “administrative” act (as the City Council authorized) but instead he unilaterally took it one step further in section D to request costs, interest and other charges allowable by law; and for such other and further relief as the Court deems just and equitable. (not requested by attorneys in the other petitions across the State that have went to court.)
This request required the Defendants to obtain legal council to represent them from potential damages for petitioning their government, an act looked on as many as a retaliation and scare tactic to prevent others from participating in future petitions where they too may be sued for damages.
DAMAC’s Attorney Husch Blackwell enters the picture
In a surprising plot twist, last night, Husch Blackwell submitted a motion to intervene before today’s hearing.
Their Statements Continue to Support the requirement of K.S.A. 12-757 for Zoning Changes
“The Question this presents is not whether data centers should be permitted in Edgerton; it is how the uses permitted under the City’s zoning regulations may be amended or changed. The Legislature answered that question in . . . K.S.A. 12-757: by the Governing Body, on the recommendation of its Planning Commission, after notice and a hearing on the record, subject to a protest right for affected owners and to judicial review” (appeal)
This answer further drives home the point that Data Centers were not even a topic when the Unified Development code was created in Edgerton. To amend that UDC, by adding Data Centers, required a statutory process that WAS NOT FOLLOWED by the City.
Again the Zoning Administrator classifying data centers as a permitted by right use is not part of the allowed statutory procedure for a zoning change.
In fact, DAMAC’s attorney goes on to claim when trying to prove the Petition invalid, that if it “did not . . . follow the statutory required process, so it is invalid” They just proved their “by right” letter invalid by the same premise.
This is the answer to the “by right” letter administered to NorthPoint by city staff and supported by the City Attorney – it did not follow K.S.A 12-757 so it is invalid. This is the claim the Kansas Attorney General needs to make to hold the City accountable to the State statutes they did not follow.
They go on to support it again stating “and the failure to follow the procedure “renders its action invalid.” Zimmerman v Bd of Cnty. Comm’r, 218 P. 3d 400, 410 (Kan. 2009)
Defendant’s are Removed from this Case But the Ballot Petition Question Still Stands
The ruling is in from today’s hearing:
Judge Goodenow ruled this afternoon that the motions to strike the Defendants from the case are granted (even Todd Luckman himself, during the City Council vote to take the petition to court for the judge to decide if it was legislative or administrative admitted that he cannot force anyone to be a defendant.)
And “reasonable” attorneys fees will be granted to the Defendant’s, leaving the donations they collected to date to be available to be used toward the new lawsuit, with Defendant Eric Twente who filed to request for the Petition to be put on the ballot.
This decision has already been decided in El Dorado, Emporia, and it was ruled today in Ottawa that citizens get to vote on the issue.
This leaves Edgerton and Osawatomie pending, with Tonganoxie continuing to try for the same relief.
It’s a shame when the City Councils are continuing to ignore the citizens and the proper rezoning process for Data Centers, forcing them to push the issue to a Ballot Petition, but at least the people will get to vote on this issue in those cities where their Councils were ignoring their concerns.
That case law should continue to set the precedent for Edgerton, Osawatomie, Tonganoxie, and other cities to follow suit with their similar petitions.
But that doesn’t get the cities off the hook for violating the State Statutes that require the proper public hearing.
That is why we compel the Attorney General to uphold the law and file a separate law suit against The City of Edgerton’s K.S.A. 12-757 violation in order to hold all cities accountable to the State statutes for orderly planning and zoning that follows the proper statutory process; while holding rogue government employees and city attorneys accountable for their deceitful actions and collusion with developers to “short circuit” or circumvent the process, resulting in a taking of the rights of the citizens.