Let the Voters Decide? Nassau County to Explore Possible Public Referendum on Data Centers
Commissioners plan January workshop to examine whether a public vote would be legal and withstand property rights challenges.
By Mike Lednovich/Editor
YULEE - Whether Nassau County voters should decide if data centers can be built in the county will be the focus of a public workshop planned for January, following a proposal Monday by Commissioner John Martin to explore putting the controversial issue on the ballot.
Martin introduced the referendum proposal after more than 250 residents packed the County Commission meeting room and spilled into outside corridors. More than 30 citizens addressed commissioners during the three-hour workshop, most opposing data centers and many calling for voters to decide the issue.
Martin said he had already asked County Attorney Denise May whether the county could hold a referendum.
"However, I asked the county attorney, 'Can this go to a referendum?' And the answer is yes," Martin told commissioners.
He said his follow-up question was whether the results of such a vote would survive a legal challenge.
"And the answer was maybe," Martin said.
Commissioners agreed to have May research the referendum option and return with a legal analysis at another public workshop, tentatively expected in January. No date has been set.
The proposal would give county voters a direct voice in a dispute that has dominated months of commission workshops and generated widespread opposition to large-scale data center development.
Martin compared the possibility of a referendum to the recent public vote rejecting paid parking in Fernandina Beach, although he acknowledged that restricting data centers would involve more complicated property rights issues.
"Several people asked, 'Why can't we put it to a vote of the people?'" Martin said. "Now, generally, I would not be in favor of issues that happen to be controversial just punting and saying, 'Well, let the people decide,' because government can't work that way on every issue."
But he said the question deserved an answer.
"On something of this magnitude, I think we should have the county attorney research whether or not the people can decide, whether that's legal or not," Martin said.
May cautioned that allowing voters to decide the issue would not necessarily protect the county from lawsuits under Florida's Bert J. Harris Jr. Private Property Rights Protection Act.
The law allows qualifying property owners to seek compensation when government regulations inordinately burden certain existing property rights or vested uses of their land.
May said Nassau County's status as a non-charter county also presents legal questions about its authority to place land-use restrictions before voters.
"You're a non-chartered county. So you're only granted the powers that the legislature has given you," May said. "That said, can you take things to ballot? Yes, you can. What are the limits on that? I think it's worth exploring."
May recommended that commissioners authorize a full legal review rather than rely on her preliminary answers.
"That's a new question, and I think it deserves the legal research that you would expect," she said.
Martin specifically requested an assessment of the county's potential liability if voters approved a ban or restrictions and affected property owners challenged the outcome.
"I'm asking Ms. May to research the legal ramifications and likelihood of if this went to referendum and the people said, 'We don't want them,' what would our odds be in litigation?" Martin said.
May warned that a referendum would not eliminate the county's exposure under the Bert Harris Act.
"A legal challenge to under Bert Harris is the same, whether you vote the regulations down and you vote to ban on your own," she said. "The same legal risk exists if you put it to vote and it ends up in the same result."
She cited Jacksonville Beach, where voter-approved building height restrictions resulted in 11 Bert Harris lawsuits that the city eventually settled.
May also warned commissioners that Nassau County cannot extend its existing moratorium on data center development indefinitely while debating whether to adopt regulations or pursue a referendum.
She said a moratorium must be limited to a reasonable period and used for a legitimate purpose, such as drafting land-use regulations.
"If you draft no regulations and a ban two years from now, you've got another problem on your hands," May said.
Ken Smith urged that county voters should decide the matter during public comment.
"We don't want them. I've heard much talk tonight about how do we put obstacles where we can control the size of whatever. What I haven't really heard is, Let's put this on a ballot.' Let the people of this community decide." Smith said. "I know you're all elected officials and you've been put in positions of authority, but the people in Nassau County really want their voice to be heard."
Commissioners expressed differing views about whether voters should make the decision or whether elected officials should retain responsibility for determining the county's land-use policies.
Commissioner Klynt Farmer supported investigating a referendum and expressed growing opposition to data centers.
"The more I look at it, the more I sit and try to digest it, I just don't like it, to be honest with you," Farmer said. "I want to make sure that we get it right over the course of the election cycle. From what I could tell, don't quote me on this, but it looked like there were 44 different places that I saw throughout the US where in some form, data centers came up in 44 different places. "All 44 failed. And so I also heard where they said most people that were polled would rather live next to a prison or a nuclear power plant than a data center."
Commissioner Hupp Huppman argued that the commission was elected to make difficult decisions on behalf of residents.
"It's a representative government here in Nassau County. We are elected to represent the people that we represent," Huppman said. "It's not 51% of the people get to decide how we set policy and make decisions."
Farmer urged additional research before the county makes a final decision.
"I don't want this to be a shortsighted decision," Farmer said. "I want to make sure that we get it right."
Commissioner Jeff Gray supported another workshop and having May investigate the referendum question.
The discussion followed months of county review of potential data center regulations addressing water consumption, electricity demand, emergency response, environmental protections and economic development.
County Manager Taco Pope said Monday's meeting was approximately the ninth workshop devoted to data centers. Staff began working on the issue earlier this year, including drafting the county's moratorium and proposed development regulations.
Pope said substantial staff resources had already been devoted to researching the issue and preparing proposed restrictions.
"At the end of the day, I just need to know what you want me to do, and I will go forward," Pope told commissioners.
He outlined several options, ranging from continuing the existing regulatory process to abandoning proposed regulations and pursuing an outright ban, despite legal warnings about the risks.
Pope said the proposed regulations address lighting, emergency response preparedness, electronic waste disposal and other concerns raised during earlier workshops.
He also said the proposals would make data centers ineligible for local economic development grants or property tax incentives, although community benefit agreements could still be negotiated.
Martin requested that the county's outside legal counsel, Nabors, Giblin & Nickerson, participate in the next workshop to explain the legal obstacles to an outright ban. Representatives of the firm had been scheduled to attend Monday's meeting but were unable to appear.
Martin said the referendum idea emerged from the repeated requests of residents who wanted a direct vote including many voicing that stance during the meeting.
"Quite frankly, I'll take the personal hit. I hadn't thought about that being a viable option," he said. "And it got brought up several times tonight about what the voters decide."
Commission Chair Alyson McCullough confirmed that commissioners wanted May to research the referendum question and that another workshop would be scheduled.
Pope said the additional meeting would require revising the county's public hearing schedule and planning and zoning notices.
Commissioners discussed holding the workshop early next year, possibly by the end of January.
Comments