Lawsuit filed against Columbus Council over data center ordinance
On Monday afternoon, four days after Columbus Mayor Skip Henderson signed the city’s technology overlay ordinance into law, eight Upatoi residents and Keep It Rural LLC filed a complaint against the Columbus Council on seven counts of alleged unconstitutional enforcement, abuse of zoning power and a violation of their procedural due process rights.
The lawsuit was filed in Muscogee County Superior Court.
Plaintiffs Keep It Rural LLC and eight landowners (Stacie Mailey, Debbie Jackson, Charles McClure, Jeremy Gibson, Jordan Kempson, Robert Landi, Wayne Gasser and Debra Jarzomkowski) who abut or live near the 865-acre site for the proposed hyperscale data center called “Project Ruby” in northeast Muscogee County are represented by attorney Jonathan Waters.
The suit states plaintiffs “will suffer irreparable injury and damage . . . not common to the public at large, including diminished use and enjoyment of property, exposure to low-frequency noise, power generator emissions, increased traffic, risk to water supply and quality, loss of rural character, diminution in property value.”
Waters and the plaintiffs argue in their suit to not decide whether data centers are good or bad but how the council went about getting the overlay passed.
Plantiffs allege the council adopted the ordinance:
(i) in violation of the Georgia Zoning Procedures Law, O.C.G.A. § 36-66-1 et seq.;
(ii) in violation of Defendants’ own zoning and overlay procedures under the UDO and the City Charter;
(iii) in violation of the procedural and substantive due process guarantees of the United States and Georgia Constitutions;
(iv) in violation of the Georgia Open Meetings Act O.C.G.A. § 50-14-1 through 50-14-6, through the conduct of the City Council’ unofficial committee;
(v) on a record so one-sided and procedurally tainted that the decision was arbitrary, capricious, and an abuse of the zoning power.
On the first and second count, the zoning procedures law and violation of UDO and charter stems from council adopting the amended overlay on June 16, without a public hearing, the suit reads. “The public was denied the reading-and-hearing process the City’s ordinances guarantee.”
The suit acknowledges that the council materially amended setbacks and noise restrictions, “but did not conduct a new first reading new notice or new public hearing, instead they scheduled a second reading on the amended ordinance at which, no public discussion was permitted and only a vote was taken.”
The third count is related to the first two in that there was no meaningful notice and meaningful opportunity to be heard, and the developing of a closed-developer aligned committee known as the ‘Unofficial Committee’ was done behind closed doors and is illegal. The suit also alleges removing the three members of the public during the first reading was “chilling and curtailed public partition” and therefore constitutionally inadequate by the 14th amendment.
On the fourth count, the plaintiffs allege the overlay is improperly used. Zoning power should be in relation to public “health, safety, morality, or general welfare” which they argue it was not. Overlays are reserved for protecting character of underlying districts, not industrial use over agriculture and residential, the suit argues.
The plaintiffs argue the ‘unofficial committee operated in closed doors, without public comment, and it was created at the direction of the council to perform a government function of vetting the overlay, therefore violating the Georgia Open Meetings Act.
The plaintiffs call the ordinance overlay “spot zoning” which is singling out a small parcel for a use classification different from the area, for the benefit of a property owner at the detriment of others.
Spot zoning is “closely scrutinized under Georgia law”, the suit reads.
The record shows the ordinance is clearly intended to facility the development of Project Ruby, the suit reads, which is inconsistent with comprehensive plan, harms the general welfare, ruining the quality of land, polluting, and disrupting ecology.
The plaintiffs ask for the overlay ordinance to be declared void, invalid and unenforceable on the counts they listed.
They also ask for a temporary restraining order and permanent injunction on all persons acting in concert for enforcing the overlay, including accepting or processing an application (including Project Ruby).
They give an alternative of remanding the matter to the council to conduct zoning proceedings properly.
They seek damages for cost of litigation and attorneys fee.
