Where We Stand

The rules get settled while there is nothing to argue about. The project arrives after. By then the only question left is whether the company followed the rules, not whether the rules were right.

El Dorado’s fight runs inside city limits. The county’s rulemaking governs everything outside them. Legally separate; the same five commissioners answer to both electorates.

1. 10 SepButler County Planning Commission approves the data center regulations. Next step is the County Commission, “at future meetings.”
2. 25–27 AugEl Dorado City Commission votes 5–0 to put a ten-year data center ban on the November ballot
3. 21 AugA Butler County judge rules the El Dorado petition legislative, not administrative. Residents win.
4. 19 AugPlanning Commission tables Section 20. County Administrator William Johnson calls the rules “very stringent” and warns they could discourage developer interest.
5. 14 AugTwo-and-a-half hour court hearing. More than 700 signatures behind the petition.
6. 4 AugPlanning Commission hearing to potentially adopt
7. 14 JulEl Dorado goes to court against its own residents to invalidate the petition
8. 7 JulPlanning Commission public comment hearing on the draft
9. 1 JunEl Dorado adopts regulations permitting large data centers by special use permit. Nearly 50 residents speak against. A petition gathers 335 signatures in three days.
10. MayOpen records requests show city officials had been courting a developer for months while stating publicly that nothing had been filed. Some had signed nondisclosure agreements.
11. MarResidents notice data center items on a city agenda. Protect the Heartland forms.
12. JanEmails later released show a plan to market the area to data center companies by “capitalizing on negative noise in” neighboring counties.

This is a county zoning amendment, not a Rose Hill ordinance. It governs unincorporated Butler County — the farm ground outside city limits, which is most of what surrounds us. Adopting it approves no data center; it is the rulebook a Conditional Use Permit applicant would have to satisfy, case by case, after a public hearing.

The map is the most important page

Exhibit A draws a Project Exclusion Area. The Flint Hills Ecoregion is off limits outright; so are unincorporated areas outside the Urban Growth Area. Inside the UGA, a data center is allowed with a CUP. Rose Hill sits inside the UGA, alongside Andover, Augusta and Douglass. The practical effect of protecting the Flint Hills is to channel these projects into the western growth corridor.

A drafting defect worth raising in writing: the text excludes unincorporated areas outside the UGA “the boundaries of which are shaded in blue,” but on the map only small patches are blue while large white areas also sit outside the line. Text and map do not agree.

Where the regulation has real teeth

An honest account matters here. Overstating the case is how credibility gets spent.

• Flint Hills excluded outright, no waiver
• A 640-acre cap per project — one square mile — with strong anti-gaming language aggregating land owned, leased, optioned or controlled by affiliates, successors or entities acting in concert
• No private wells, no creek or river withdrawals; a public supplier must certify capacity in writing
• Decommissioning money posted before the first building permit, sized by a county-selected independent estimator plus 15%, refreshed every three to five years
• The applicant pays for the county’s own third-party experts to review the technical studies
• No tax breaks bundled in — any abatement needs its own application, notice and votes
• Annual compliance reporting each 31 December; a documented complaint can force noise or lighting testing
• Agricultural use counts as a real use of land, not vacant ground awaiting something better

The five size classes

At the 640-acre cap and the 50% impervious coverage limit, a hyperscale site could hold 320 acres of buildings, pavement and equipment yards — roughly 485 football fields.

The definitions section at the back gives different numbers than this table, and gives Hyperscale “more than 40 acres” with no ceiling at all. An applicant will cite whichever helps.

Every item below is numeric, technical and narrow. None requires arguing that the project should not exist — which is what makes them hard to dismiss and useful whichever way the larger fight goes.

The four that matter most

1. The equipment-inside-the-building loophole §10(a)(3)(F)

   Generators, transformers, fuel systems and cooling equipment must sit 1,000 feet from any home, school or church. Unless they are inside the main building, or attached to it, or enclosed by it, or merely screened by it — then the distance drops to 250 feet from the property line. One sentence undoes the most important number in the document.

2. Closed-loop cooling is a suggestion, and it regulates the wrong loop §10(k)(4)

   The clause says data centers “should” use closed-loop circulation. Should, not shall. The sentence itself is garbled — “an alternative cooling technology or any alternative cooling technology” — so nobody proofread the central water protection in a forty-page document. And the performance test has no baseline: equal or lower water use than which closed-loop system?

   The deeper problem is that closed loop describes the server-side circuit only. The heat still has to leave the building, and it can leave through a cooling tower that evaporates millions of gallons a year. Ask for the heat rejection method, not whether the loop is closed.

3. Nothing caps power or water

   No ceiling anywhere on electrical demand, IT load, or annual water use. Both are left to case-by-case negotiation, with the numbers landing in a permit after the public part is over. No maximum PUE — efficiency only has to be reported. WUE, the water metric, is never mentioned at all.

4. Perpetual vesting and the override clauses §14(b)(3) §10(a)(3)(G) §14(b)(4)

   Once one building permit issues, all development rights “vest and remain valid in perpetuity.” Two sections declare they supersede any more restrictive provision elsewhere in the county code — contradicting §2(b), a few pages earlier, which says the more restrictive rule always controls. Both cannot be true.

Noise, generators and light

5. 55 dB(A) at night is legal, and it is not quiet

   Real rural nighttime ambient around Rose Hill is 30–40 dB(A). A facility could sit fully within the law and be permanently audible from a porch. The dB(C) limits sit only 5 dB above the dB(A) limits, generous for exactly the low-frequency hum that carries farthest. Fix: tie the limit to measured baseline ambient plus 5 dB, and specify the measurement methodology in the regulation itself.

6. Generator testing is capped per generator, not per site §10(f)

   Eight hours per generator per month. Sixty generators means roughly 480 generator-hours available monthly, with nothing requiring consolidation and nothing requiring notice to anyone. Notice of long load-bank tests goes to the Zoning Administrator, not to neighbors.

   Note the arithmetic: 8 × 12 = 96 hours a year, just under the roughly 100 hours of non-emergency operation federal rules allow an “emergency” engine before it risks losing that classification. If that is the origin of the number, the county chose the maximum an applicant could use without triggering stricter federal permitting.

7. Outage operation is unregulated

   No hour cap, no time-of-day limit, notification only “if feasible.” During an ice storm or a summer peak an entire campus could run for days, through the night. “Emergency” is never defined, and running generators for demand response or economic dispatch is never prohibited.

8. Dark-sky lighting has no color temperature limit

   The 0.1 foot-candle spillover cap at the boundary is a real and reasonably strict standard — about three to ten times a full moon. But it caps spillover, not skyglow: no lumens cap, no uplight limit, no curfew. Cool white LEDs scatter far more blue light than warm ones at identical brightness, and every serious dark-sky ordinance caps color temperature at 3000K. This one never mentions it. The security exception could swallow the standard.

Water chemistry — the quietest gap

9. No baseline groundwater testing, no monitoring wells

   The draft bans the facility from using private wells but never requires it to prove it has not contaminated the neighbors’. A closed loop carries glycol, corrosion inhibitors, biocides and scale inhibitors; chillers carry refrigerants and oils; immersion designs have historically used PFAS-based dielectric fluids. Nothing requires the actual chemicals to be named, there is no PFAS provision, no disposal tracking for spent fluid, and no pretreatment standard.

   The strongest framing borrows the county’s own logic: you required a baseline noise study because you cannot prove an increase without a “before.” The same is true of water, and water damage is permanent.

Process and procedure

10. Setbacks can be traded away privately §10(a)(6)

    Any setback can be reduced by a recorded agreement between the developer and one adjoining owner. No county approval, no hearing, no notice to anyone else on the road.

11. Notice gets worse closer to town §7(c)(1)

    The hearing notice radius is 1,000 feet, cut to 200 feet wherever the notification area reaches inside a city’s limits. For a project just outside Rose Hill, most people in town would receive no mailed notice at all. A one-line correction.

12. The community meeting can be waived §5(d)(1)

    The one public event where neighbors question the company directly can be expressly waived by the Board.

13. Studies can be deferred past the vote §6(c)

    Required plans and studies may be pushed to platting or permitting, meaning the Commission can approve a CUP before seeing them. Core submittals can also be waived in writing.

14. The cost-benefit analysis has no pass/fail

    It must be submitted. Nothing says a net-negative project must be denied.

15. Soft verbs throughout

    Foreign-ownership screening through the Kansas Intelligence Fusion Center uses “may disclose” and “may provide,” not “shall.” Review criteria in §8 are “guidelines,” not binding findings. Ratepayer impact is required only “if known.” Property values are never addressed at all.

16. No cumulative cap, no separation between projects

    640 acres is a per-project limit. Nothing caps how many projects, and two genuinely unaffiliated applicants could each take a square mile across the road from one another.

The BREC letter — one page, and the wrong direction

A letter has been filed with the county commenting on Section 20 clause by clause. We hold one page of it — the last one — a phone photo circulated on Facebook, carrying the tail of item 8, all of item 9, and the closing. The substantive pages are missing.

Even from one page, three things are clear. It is a sophisticated, numbered edit request: item 8 argues a “facility of this kind commonly operates above that range” and asks for a linear interpolation rule above 60 cps, with compliance demonstrable by peak particle velocity instead of displacement in inches. Item 9 asks the county to add due-process protections around the thermal provision §10(h)(2) — a measurable standard, notice, written findings, a cure period, proportionality, and an opportunity to be heard before conditions are imposed. And the closing offers the county a qualified acoustical consultant, at no cost, to help develop the measurement protocol.

The letter is polite, technically competent, and framed throughout as helping the county. Every request nonetheless runs one direction: standards harder to enforce, easier to comply with, and the regulated party helping write the measurement protocol. Set that against the county administrator’s “very stringent” comment on 19 August, and the direction of internal pressure is no longer inference.

Before this can be used we need the remaining pages, the signature block, and a comparison of its numbered items against the text approved on 10 September. If BREC is Butler Rural Electric Cooperative, a member-owned utility is lobbying to soften the ordinance, and its members can ask about that at a board meeting. If it is developer counsel or an industry group, it is the first documentary evidence of commercial interest in this ground. Those are very different facts, and neither should be asserted until the signature is in hand.

The Stevens letter — a resident’s draft, worth two adoptions

A neighbour’s comment letter, parsed separately in the project file. Three of his four asks already appear in our amendment list. Two are genuine additions worth taking into the group letter: explicitly excluding traffic noise from the sound baseline, which is concrete because a busy road sits near the site; and mailing the annual compliance report to everyone within three miles, which is cheap, additive, and makes the draft’s complaint-driven enforcement actually usable.

His strongest ask he undersold. §5(d)(2)(B) already requires certified-mail notice to every city and township within three miles — so the county has already decided three miles is the relevant radius of impact. It simply chose to notify institutions rather than people. The reframe writes itself: you already picked three miles; mail the same notice to the people who live inside the circle you drew.

The permitting path runs eleven stages from groundwork to operations. Leverage is steeply front-loaded, and most of it is either behind us or about to be.

Gate 1 is the trap. It decides the rules while there is no project to oppose, so it attracts no constituency. By Gate 7, when there is something concrete, the rules are fixed and the only question is compliance.

Gate 2 is the most available leverage in this situation and the least used. Butler Rural Electric must agree to serve, and Rural Water District No. 5 must certify capacity in writing. Both decisions get made before any application is filed, because the application requires their letters — which means they happen during the blackout, invisibly. If you get power from the co-op you are a member, not a customer: members elect that board, may run for it, and generally may inspect its bylaws and books. Those seats are often decided by a few hundred votes.

Gate 6 is the procedural fact to memorize. If the Planning Commission recommends denial of a CUP, the County Commission needs a two-thirds vote to approve it anyway.

Gate 8 is a genuinely separate fight with a different audience. Any abatement, exemption, industrial revenue bond or development agreement requires its own application, notice, cost-benefit study and vote. Because school funding comes out of the same tax base, the school district has real standing there.

El Dorado did not win a ban. It won the right to vote on one, inside city limits, on 3 November. The precedent is live rather than settled, and its substantive reach stops at the city line.

Transfers directly

• The tactics. The open-records playbook, the organizing model, the media relationships, the coalition structure.
• The political precedent, worth more here than the legal one. 3 November is a Butler County electorate voting on data centers — the same constituents who elect our commissioners. It requires no legal theory at all.
• The moratorium precedent, which is county-level. Harvey, Saline, Miami, Sedgwick, Kingman, McPherson, Riley, Leavenworth and Geary all acted as counties.
• The pattern-of-conduct record. If the same officials, economic development apparatus or drafting counsel appear on both sides of the line, the county cannot treat the El Dorado record as somebody else’s problem.

Does not transfer

The statute. K.S.A. 12-3013 is a citizen initiative right for cities. Every Kansas victory this year is a city petition against a city government under a city statute. Whether Kansas gives county residents an equivalent right is unresolved — the first question for an attorney, and the answer shapes everything else. If the answer is no, five county commissioners are the whole decision.

A Rose Hill city ordinance. A city has no zoning authority over unincorporated county land. A city-limits ban would be a statement of position, not a barrier, and should not absorb effort that belongs at the county.

What Rose Hill does have

Formal standing §5(d)(2)(B). The applicant must give certified-mail notice to all cities and townships within three miles. The City and the township can pass a resolution, file written comment, appear at the hearing as institutions, and retain their own experts. A city speaking is a kind of voice that forty individual letters do not replicate, and it costs nothing but the asking.

The approach is sound: lead with a moratorium, hold numbered amendments as the fallback, work the utility boards in parallel, file open records requests now, and use 3 November as the reason to wait. These are the thin places, set down plainly so they can be fixed rather than discovered.

1. Everything is timed to a date nobody has

   The County Commission vote is the hinge of the entire plan, and we are reading press coverage for facts one phone call would settle. Open since 9 September. The cheapest unresolved item in the file, and it blocks the most.

2. The moratorium ask may be past its moment

   The Planning Commission has voted. A pause is much easier to request before a body votes than after. We should know whether we are asking for a pause or a reconsideration, because they are different letters.

3. Sixteen amendments is not an ask, it is a document

   The fallback needs to be three, in priority order, one sentence each: close the equipment-inside-the-building loophole; tie the noise limit to measured baseline ambient; strip perpetual vesting and the override clauses. Everything else goes in an appendix. A commissioner who remembers three things can act on three things.

4. There is no organized constituency yet

   No list, no group name, no assigned roles, nobody who has attended a utility board meeting — despite Gate 2 being identified as the highest available leverage. The citizen letter is the first step, and the reason its only ask should be signing up.

5. The legal question underneath the fallback has never been asked

   Whether Kansas gives county residents anything like the city initiative right. One hour of an attorney’s time, not more research.

6. We have already been wrong once on a technical claim

   The water estimate was off by an order of magnitude because it described the wrong cooling architecture. It was caught internally, which is the system working. But against an opponent with an acoustical engineer on call, one overstated number spent in public costs more than it buys.

7. The resource asymmetry is real and should shape tactics

   They have counsel, consultants, and the patience to comment clause by clause. We have volunteers and evenings. That argues for narrow, verifiable, numeric asks that are expensive to refuse in public — not for volume.

8. One assumption may be inverted

   The plan treats the Butler Rural Electric board as a lever we can reach as members. If the letter to the county turns out to be from the cooperative, that needs rethinking — though it also becomes a question members are entitled to ask on the record.

9. It rests on too few people

   Most of the research, drafting and follow-through traces to one person. Fine for six weeks; not fine for the eighteen months this could run.

10. There is no press relationship

    KWCH, KAKE and KSN have covered El Dorado steadily all year. The county-level angle — a rulebook finished with no project and no notice — is a story they would likely take. Nobody has offered it to them.

Nothing below is research. Each one has a person who can answer it.

The three records requests to file now, modeled on what broke El Dorado open: the Section 20 drafting file including who drafted it, at whose request, and all comments received on the drafts; any executed nondisclosure agreements held by the county or its economic development partners; and all communications with any economic development organization regarding data centers.

Ask while a “no” is still easy to give, and easy to check later.

In order. The first item unblocks most of the others.

• Call 316-322-4325. Confirm the Commission date, whether the approved text differs from the 9/1 draft, and how written comment enters the record.
• Get the rest of the letter to the county — the remaining pages and the signature block.
• File the three open records requests.
• Mail the citizen letter and stand up the sign-up page and QR code.
• One hour with a Kansas land-use attorney. County initiative right; protest petition reach; appeal windows under Article 27.
• Write the comment letter to the Commission — moratorium first, three numbered amendments as the fallback, filed in writing before the meeting.
• Attend the next Butler Rural Electric and RWD No. 5 board meetings. Request two years of water district minutes.
• Ask Rose Hill City Council and the township board to file written comment as institutions.
• Contact Protect the Heartland — same county, eight months ahead, already through court.
• Offer the county-level story to KWCH, KAKE or KSN.
• Name owners. Two or three people, each responsible for a specific gate.

Adoption is the most important moment. It is not the last one. None of this requires believing anyone acted in bad faith — only noticing that the decisions with the longest consequences are being made at the quietest moment.