City Commission

EL DORADO - SPECIAL CITY COMMISSION MEETING AGENDA CITY HALL - 220 E 1ST AVE, EL DORADO, KS July 13, 2026 - 5:30 PM CALL TO ORDER & ROLL CALL New Business 1 Executive Session (Attorney-Client Privileged Discussion) 2 Consideration of an Ordinance of the City of El Dorado, Kansas, prohibiting the installation and operation of High Impact Data Centers and Tier 2 and Tier 3 Battery Energy Storage Systems to protect health, safety, and welfare of the residents of El Dorado, Kansas. Adjournment TO: City Commission FROM: David Dillner, City Manager SUBJ: Executive Session (Attorney-Client Privileged Discussion) DATE: July 13, 2026 Summary: On June 22, 2026, the City received a citizen-led petition seeking action under K.S.A. 12-3013 regarding an ordinance "prohibiting High Impact Data Centers and Tier 2 and Tier 3 Battery Storage Systems in the City of El Dorado, Kansas." The petition was signed by over 700 people and was provided to the County Clerk for verification and certification. The City Attorney will discuss the legal context of the petition with the governing body. Attachments: 1. Data Center/Battery Storage Ordinance (Proposed by Petition) Funding Source: NA Operation Impact: NA Options/Alternatives: NA Staff Recommendation: NA Commission Action: Commissioner ___________ moved to recess into executive session pursuant to the attorney-client privileged exception under K.S.A. 75-4319(b)(2) for consultation with an attorney for the public body or agency for the purpose of discussing a citizen-initiated petition filed under K.S.A. 12-3013, and to reconvene the meeting at _____ p.m. in the Commission Chambers. Commissioner ___________ seconded the motion. TO: City Commission FROM: David Dillner, City Manager SUBJ: Consideration of an Ordinance of the City of El Dorado, Kansas, prohibiting the installation and operation of High Impact Data Centers and Tier 2 and Tier 3 Battery Energy Storage Systems to protect health, safety, and welfare of the residents of El Dorado, Kansas. DATE: July 13, 2026 Summary: On June 6, 2026, the City Commission adopted Ordinance No. G-1463 that amended the Zoning Regulations defining various emerging industries, classifying each industry as "by-right" or "special use," and establishing standards for infrastructure capacity, water use, noise, setbacks, emergency access, screening, and surrounding land-use compatibility. Data centers and battery energy storage systems were defined in the adopted ordinance and classified as allowable in "I-1, Light Industrial Districts" and "I-2, Heavy Industrial Districts" through the special use process. Data centers are also allowed in "O-I, Office Industrial Districts" through a special use process. On June 22, 2026, the City received a citizen-initiated petition seeking the adoption of an ordinance prohibiting "high impact" data centers and Tier 2 and Tier 3 battery energy storage systems pursuant to K.S.A. 12-3013. The Butler County Clerk certified the petition as meeting the statutory requirements for a valid petition on June 25, 2026. K.S.A. 12-3013 establishes the process for citizen- initiated ordinances. A qualifying petition requires the governing body to adopt the ordinance without alteration within twenty days or submit it to the voters in an election within ninety days. The City Commission shall call a special election, unless a regular city election is to be held within 90 days after the petition's receipt and certification. An ordinance adopted through this process generally cannot be amended or repealed by the governing body for ten years. An amendment or repeal prior to the ten-year window requires voter approval. The citizen-initiated ordinance is intended to address resident concerns regarding water consumption, electrical demand, noise, heat, fire hazards, emergency response, land use compatibility, and effects on existing infrastructure by prohibiting specific land uses defined as "high impact" data centers and Tier 2 and Tier 3 battery energy storage systems. K.S.A. 12-3013 does not apply to administrative ordinances, ordinances concerning improvements financed through special assessments, or matters subject to another statutory referendum procedure. Kansas courts distinguish legislative measures, which establish new policy, from administrative measures, which implement existing policy. Whether every provision of the petitioned ordinance is a proper subject for initiative is a legal determination that should be made by the City Attorney. Attachments: 1. Proposed (By Petition) Data Center/Battery Energy Storage System Prohibition Ordinance 2. Ordinance Petition Legal Memorandum 3. Ordinance No. G-1463 Funding Source: This item has not been reviewed by any advisory board or committee of the City. The zoning text amendment adopted with Ordinance No. G-1463 was reviewed and recommended by the Planning Commission. Given the statutory nature of the citizen-initiated petition found in K.S.A. 12-3013, the Planning Commission has not been asked to review the proposed ordinance even though it has general applicability to land use for "high impact" data centers and Tier 2 and Tier 3 battery energy storage systems within the corporate limits of El Dorado. Therefore, no recommendation has been provided for the City Commission's consideration. Operation Impact: Should the City Commission adopt an ordinance prohibiting "high-impact" data centers and Tier 2 and Tier 3 battery energy storage systems? Alternative A: Adopt the Petitioned Ordinance Without Alteration. The Commission could adopt the ordinance exactly as submitted within the statutory period. Advantages: • Responds directly to the petitioners’ request. • Avoids the cost and administrative effort of an election. • Establishes an immediate and easily understood prohibition. • Eliminates the identified land-use and public-safety risks from the covered facilities inside the City. Disadvantages: • The ordinance cannot be corrected, clarified, or narrowed before adoption. • The prohibition may include relatively modest commercial battery installations exceeding 80 kilowatt-hours, regardless of technology, location, fire-code compliance, or demonstrated risk. • A blanket prohibition may be more vulnerable to legal challenge than standards supported by project-specific findings and established zoning procedures. • The City Commission generally cannot amend or repeal the ordinance for ten years without voter approval. Alternative B: Do Not Adopt the Ordinance and Call a Special Election. The Commission could decline to adopt the ordinance and initiate the election process required by K.S.A. 12-3013. Advantages: • Allows the electorate to decide a significant, long-term land-use policy. • Avoids Commission adoption of language that staff cannot revise and that contains technical and administrative ambiguities. • Complies with the statutory initiative framework while remaining neutral on the underlying policy. • Provides an opportunity for public education regarding the ordinance’s scope and effects. Disadvantages: • Creates election costs and administrative demands. Staff estimates the cost of a special election between $10,000 to $15,000. • Extends uncertainty for residents, property owners, utilities, and prospective applicants until the election is completed.  • The ballot proposition must present the ordinance without alteration. • If approved, the City would need to amend its Zoning Regulations to remove conflicts with the ballot language and the ten-year amendment restriction would apply. Alternative C: Continue Development of a Regulatory Zoning Framework. The City may continue its separate zoning text amendment process addressing data centers and BESS through special-use approval, objective performance standards, utility-capacity review, setbacks, noise limits, fire-safety requirements, decommissioning security, and emergency-response planning. This alternative cannot substitute for the City’s obligations under the certified petition. It may, however, provide a more adaptable policy framework if the petitioned ordinance is defeated, invalidated, or later becomes eligible for amendment. The City Attorney may have other options to consider following a review of the legal considerations of this subject during the meeting. Options/Alternatives: Alternative A (Adoption of Ordinance): Direct costs would include publication. The City would avoid election expenses. Long-term opportunity costs could include forgone permit revenue, utility sales, property development, employment, and potential economic development activity. Those amounts cannot be reliably estimated without a specific project. Alternative B (Special Election): The City would be responsible for election-related costs charged by the Butler County election officer, required publication, ballot preparation, legal services, public notices, and staff administration. Staff should obtain a written cost estimate before final election action. A special election would likely cost more than placing the question on an already scheduled regular election ballot. Alternative C (Regulatory Framework): Costs could include planning and legal staff time, public hearings, fire-code consultation, utility studies, and outside technical assistance and consulting. Application and consultant reimbursement fees could offset future project review costs. Staff Recommendation: Given the legal nature of this subject, the City Manager will defer to the City Attorney for a recommendation following a review of the legal considerations of this subject during the meeting. Commission Action: A motion to adopt the ordinance as provided in the citizen-initiated ordinance would read as follows: "I move to approve an ordinance of the City of El Dorado, Kansas, prohibiting the installation and operation of High Impact Data Centers and Tier 2 and Tier 3 Battery Energy Storage Systems to protect health, safety, and welfare of the residents of El Dorado, Kansas." A motion to submit the citizen-initiated ordinance to the electors of the City would read as follows: "I move that the Governing Body of the City of El Dorado, Kansas, declare its intent to call a special election pursuant to K.S.A. 12-3013 for the purpose of submitting to the electors of the City a proposed ordinance prohibiting the installation and operation of High Impact Data Centers and Tier 2 and Tier 3 Battery Energy Storage Systems within the City to protect the health, safety, and welfare of the residents of El Dorado, Kansas; and further, that staff be directed to prepare a resolution calling and providing for said special election, for consideration and adoption by the Governing Body at a future meeting; and further, that staff be directed to coordinate with the Butler County Election Officer and return to the Governing Body with a recommended election date at that future meeting; and further, that staff be directed to prepare all documents necessary to provide notice of and conduct said special election in compliance with applicable Kansas law." The City Attorney may have other options to consider following a review of the legal considerations of this subject during the meeting. Daniel Yoza Plaza Office Direct Dial: (816) 460-1847 Dyoza@levycraig.com July 8, 2026 VIA EMAIL AB Legal 111N. Main Street El Dorado, Kansas 67042 ashlyn@ablegalks.com Attn: Ashlyn Lindskog Re: Ordinance Petition filed with the City on June 22, 2026 Ashlyn: I assisted in drafting the ordinance petition that was filed with the City of El Dorado, Kansas (the “City”) on June 22, 2026 (the “Ordinance”). In an email dated June 3, 2026, you communicated your view that the Ordinance is not a proper subject for an ordinance by petition, because K.S.A. 12-3013(e)(1) excludes administrative matters from the ordinance by petition process. You also graciously requested that I provide my view on this question, and I provided a response by email. Finally, in an email dated July 7, 2026, you requested that I draft a letter explaining my view about whether the Ordinance is administrative to supplement the information City Commission has on this topic. This letter explains my view on whether the Ordinance is administrative. The Ordinance is not administrative, as defined in the relevant caselaw. McAlister v. City of Fairway, 289 Kan. 391 (2009) discusses the four guidelines that are used to determine if an ordinance is administrative or legislative: 1. Is it a new law (legislative) or executing an existing law (administrative)? The Ordinance establishes a new law to prohibit High Impact Data Centers and Battery Energy Storage Centers. It is not executing or implementing the zoning amendments the City of Eldorado passed on June 1, or any other part of the City’s Zoning Code. Rather it is a regulatory ordinance, exercising the City’s police power to prohibit specific dangerous, risky, and/or wasteful activities within the City. A PROFESSIONAL CORPORATION PLAZA OFFICE NORTH OFFICE KANSAS OFFICE 4520 MAIN STREET, STE. 400 4151 N. MULBERRY DRIVE, STE. 205 8101 COLLEGE BLVD, STE. 100 KANSAS CITY, MO 64111 KANSAS CITY, MO 64116 OVERLAND PARK, KS 66210 816-474-8181 816-454-7474 913-831-6900 816-471-2186 FAX 816-454-3525 FAX 913-831-7156 FAX LEVY CRAIG LAW FIRM A PROFESSIONAL CORPORATION July 8, 2026 Page 2 2. Does it deal with a new legislative purpose (legislative) or does it only deal with a small segment of an overall policy question (administrative)? The Ordinance has a distinct new legislative purpose, which is described in the Title and Recitals. The overall policy question is whether the City should allow High Impact Data Centers and Battery Energy Storage Centers. The Ordinance does not simply implement an existing ordinance – it is intended to be implemented outside of and apart from all existing ordinances. 3. Does it require specialized training and experience in municipal government and intimate knowledge of the fiscal and other affairs of a city to make a rational choice (administrative), even if it establishes a general policy (legislative)? The policy question of whether to allow High Impact Data Centers and Battery Energy Storage Centers does not require specialized knowledge in municipal affairs to make a rational choice. In McAlister, the topics of rezoning, annexation, and condemnation were the areas that required specialized knowledge in municipal affairs to make a rational choice. The Ordinance does not deal with these topics. In City of Wichita v. Kansas Taxpayers Network, Inc., 255 Kan. 534 (1994) repealing a stormwater utility ordinance was that issue that required specialized knowledge in municipal affairs to make a rational choice. Prohibiting two specific dangerous risky, and/or wasteful activities does not require internal knowledge of City operations, nor does require changes to the taxes, budget, spending, or any other internal administrative decisions of the city. All it does is state that High Impact Data Centers and Battery Energy Storage Centers are prohibited. 4. Does it concern a matter of statewide concern where the legislature delegates decision-making power to other parties (administrative)? This is not an area of law of statewide concern where the legislature has delegated decision-making to other parties. The state legislature has passed no laws delegating regulatory authority over High Impact Data Centers and Battery Energy Storage Centers to any other parties. In contrast, the ordinance in McAlister prohibited rezoning and condemnation, which would have stopped the city from exercising its delegated zoning and condemnation powers, and utilities from their delegated condemnation powers. In the present case, the Ordinance only prohibits specifically designated dangerous, risky, and/or wasteful activities, which are not preempted by state regulatory frameworks. It does not change any of the city’s ability to pass zoning ordinances. A PROFESSIONAL CORPORATION PLAZA OFFICE NORTH OFFICE KANSAS OFFICE 4520 MAIN STREET, STE. 1600 4151 N. MULBERRY DRIVE, STE. 205 8101 COLLEGE BLVD, STE. 100 KANSAS CITY, MO 64111 KANSAS CITY, MO 64116 OVERLAND PARK, KS 66210 816-474-8181 816-454-7474 913-831-6900 816-471-2186 FAX 816-454-3525 FAX 913-831-7156 FAX LEVY CRAIG LAW FIRM A PROFESSIONAL CORPORATION July 8, 2026 Page 3 The Ordinance does not repeal or amend the zoning ordinance, nor does it disturb any vested landowner’s zoning rights, as was the case in McAlister. The city can zone, rezone, or modify its comprehensive plan as it wishes. The Ordinance is simply legislation to exercise the city’s police power to prohibit two specific dangerous, risky, and/or wasteful activities. It is more analogous to the City’s current prohibitions on setting off fireworks or discharging pollutants into streams. It targets no specific land or landowner; rather, it regulates specific activities. In City of Wichita v. Fitzgerald, 22 Kan. App. 2d 428 (1996) the Kansas Court of Appeals seems to say that implied repeals of administrative ordinances are themselves administrative, however, McAlister does not endorse this view. Rather, the Kansas Supreme Court explicitly states that the reason that certain implied repeals may be administrative: “We find the proposed ordinance's restrictions on the City's zoning authority would intrude into a matter of statewide concern given the comprehensive nature of the zoning statutes and the legislature's delegation of that authority to the cities.” I do not believe that the Ordinance repeals any existing zoning ordinances. It can easily be read in harmony with the existing zoning code. I reviewed the existing zoning code as it exists on the City’s website and did not identify any clear inconsistencies with the Ordinance. The June 1 amendments simply create an SUP process and prohibit certain uses in certain zones, but they do not guarantee a right for the activities described in the Ordinance to occur in specific zones. Thus, there is no conflict or implied repeals created by the Ordinance. A landowner can apply for a rezoning for specific use, but other ordinances may still restrict their business activities at that location. This regulatory scheme is common in municipal law. One example of this situation would be where a landowner could rezone with the intent of operating an adult ordinated business, but the city can still prohibit an adult oriented business from operating there, if the adult oriented business engages in any conduct prohibited by ordinance. Another example would be where a fireworks stand may be able to operate in the city under city land use and zoning laws, but this does not function as an implied repeal of another ordinance prohibiting shooting off fireworks in the city. Finally, the hundreds of residents that signed the petition for the Ordinance are serious about this issue and are prepared to pursue all available legal remedies to see that the Ordinance is passed. If the Commission blocks the clear desire of their constituents by characterizing the Ordinance as administrative, this will only cause litigation and further conflict in the community without dealing with the underlying issue, which is residents’ valid concerns about High Impact Data Centers and Battery Energy Storage Centers. A PROFESSIONAL CORPORATION PLAZA OFFICE NORTH OFFICE KANSAS OFFICE 4520 MAIN STREET, STE. 1600 4151 N. MULBERRY DRIVE, STE. 205 8101 COLLEGE BLVD, STE. 100 KANSAS CITY, MO 64111 KANSAS CITY, MO 64116 OVERLAND PARK, KS 66210 816-474-8181 816-454-7474 913-831-6900 816-471-2186 FAX 816-454-3525 FAX 913-831-7156 FAX LEVY CRAIG LAW FIRM A PROFESSIONAL CORPORATION July 8, 2026 Page 4 Sincerely, LEVY CRAIG LAW FIRM A Professional Corporation Daniel Yoza A PROFESSIONAL CORPORATION PLAZA OFFICE NORTH OFFICE KANSAS OFFICE 4520 MAIN STREET, STE. 1600 4151 N. MULBERRY DRIVE, STE. 205 8101 COLLEGE BLVD, STE. 100 KANSAS CITY, MO 64111 KANSAS CITY, MO 64116 OVERLAND PARK, KS 66210 816-474-8181 816-454-7474 913-831-6900 816-471-2186 FAX 816-454-3525 FAX 913-831-7156 FAX