Subject: Joint written opinion — Interlocal Cooperation Act and Service Contract No. 2019-01

Mayor Duncan and Commissioner Cook:

I have already stated my position on Service Contract No. 2019-01. This message is not a restatement of that demand. It is a request for the legal process that has to come next.

The half-cent, the interlocal, and the services contract are not a City file, a County file, or a JEDO file. They are one arrangement created by two governments under Kansas law. I am asking that the City Attorney and the County Counselor produce one joint written opinion on that arrangement.

The statutes that opinion should apply are:

• K.S.A. 12-2901 et seq. (Interlocal Cooperation Act), including 12-2904 and 12-2904a
• K.S.A. 12-187(g) and 12-192 (purpose of a countywide retailers’ sales tax)
• K.S.A. 10-1101 and 10-1119, as they apply to the City and the County as the municipalities that levy and transfer the tax
• The successor-governing-body rule stated in City of Olathe v. City of Spring Hill, 316 Kan. 64 (2022), and Jayhawk Racing Properties v. City of Topeka, 313 Kan. 415 (2021)

The first question is simple: what authority does each body still have, and what does the law require before any further draws or renewals under 2019-01.

I am not asking either of you to argue the merits in this email. I am asking you to send this to both counsel and to tell me, in writing, that a joint opinion has been requested and when it will be issued.

Please copy both clerks so the request is on the public record.

Respectfully,

Henry McClure
MCRE, LLC
3625 SW 29th Street #100
Topeka, KS 66614
785-383-9994
mcre13@gmail.com

City of Topeka Planning Commission — September 21, 2026

YouTube: Planning Commission Meeting September 21, 2026 (City of Topeka channel). Live from City Council Chambers. Five commissioners present. Minutes from August 17 approved 4–1–0 (one abstention). No declared conflicts.

This was not a public hearing on a live application. The main discussion item was ACZR26/05: draft zoning-code text amendments for data centers and energy storage systems. Staff presented a framework only. No vote on regulations. Cases that night were tentatively slated for governing-body review the following month. Agendas: topeka.gov / Topeka Speaks.

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Context staff laid out

• The City adopted a moratorium (Aug. 11) blocking acceptance, processing, or approval of data-center applications and city water/sewer connections (inside and outside city limits) so staff can study standards before any city application arrives.
• Compass Datacenters filed a conditional use permit with Shawnee County (July 24; later deemed complete). Site is south of Topeka (west of US-75 / SW 77th, ~600 acres, near Walmart DC / South Topeka Economic Growth Corridor). That is a county process, not a city application. Staff repeatedly distinguished the two.
• Compass public materials describe a large campus (order of hundreds of MW IT load; commenters cited later revisions around ~600 MW and large backup-generator inventories). City staff used “hyperscale” language and an early figure around 300 MW as a working example.

Staff showed size examples (small facility in Papillion, NE; mid-size ~176k sf in Shawnee, KS; 1.4M sf hyperscale in Pryor, OK) and noted many “data centers” already exist as small server rooms.

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Draft definitions (preliminary)

Staff proposed four categories, using both floor area (building + exterior generators/cooling) and peak energy load:

Category	Rough draft thresholds
Accessory	On the same site as the use it serves; peak load ≤ 5 MW. Allowed where the principal use is allowed. Hundreds of these already exist in Topeka.
Type 1 (small)	≤ ~30,000 sf; peak ≤ 10 MW
Type 2 (medium)	≤ ~200,000 sf; peak ≤ 50 MW (intent: over 10 MW up to 50 MW — wording needed cleanup)
Type 3 (hyperscale)	> 200,000 sf and peak > 50 MW

Policy direction discussed:

• Accessory: permitted with the principal use.
• Types 1–3: conditional use permit in a limited set of districts (same public-hearing / notice process as a rezoning).
• Future standards to address noise (sound attenuation, setbacks), aesthetics (walls, landscaping), water (closed-loop or documented use), fire (especially energy storage), and lighting (city already has a 3 foot-candle property-line standard). Height of generators/cooling equipment was flagged as a possible extra control. Energy-storage definitions were only sketched.

This is an early draft. Staff expected more study over coming months before a formal public-hearing text amendment.

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Commissioner discussion

Themes:

• Align Type 3 with Evergy large-load language (comment that Compass-scale talk started around 75 MW).
• Tighten accessory language so it is clearly commercial/industrial, not every home office.
• Use power + water, not just square footage; avoid overlapping or sloppy MW ranges.
• Possible height / ground-mounted cooling limits so equipment can actually be screened.
• Need enforceable water and power numbers in the CUP application (not just promises), plus conditions tied to that case.
• Resource capacity thresholds (when is “enough” water/power?) may be more a governing-body issue than Planning Commission.

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Public comment (4-minute limit; discussion item, not a hearing)

Speakers generally supported deliberate standards before any city application, and many opposed treating a ~50 MW facility the same as a 600 MW campus. Recurring points:

• Keep the 50 MW Type 2/3 split; a jump of 15–25 MW is a real utility step-change.
• Require cumulative / social-justice impact analysis (health, housing, existing pollution, nearby school ~1 mile from the county site, Montera/vulnerable neighborhoods).
• Jobs vs. impacts: construction is temporary; permanent on-site jobs were described as modest relative to scale.
• Power: one campus could exceed 1.5× current Shawnee County electric use; large diesel backup fleets (commenters cited hundreds of MW of generators / ~840 MW inventory in a revised CUP).
• Water: closed-loop vs. evaporative tradeoff (less site water, more electricity — and power plants still use water); fire-suppression storage (e.g. 50,000-gallon tank) still draws from city-supplied rural districts; questions about lagoons, trucked wastewater, Wakarusa wells/streams.
• Noise / infrasound / heat: constant low-frequency noise traveling miles; livestock and crop concerns from a neighboring farm family (1860s homestead, hundreds of crop/pasture acres directly across from the proposed county site); heat island effects on pollination.
• Air / KDHE: one speaker said KDHE staff could not locate a Compass air pre-application despite CUP language citing KDHE/Trinity desktop work.
• Decommissioning, ownership, target risk, fire-service cost, “superfund” precedent.
• Leon Graves: potential community benefit if guardrails are real; city should stay deliberative and avoid fights seen elsewhere in Kansas.
• Megan Ryan (Protect Kansas): keep 50 MW threshold; add cumulative impact study.
• Others: Laura Thompson, Carol Marple (adjacent farm), Amy Gillette, Danielle Twimlow, Diane Denham, plus additional speakers on the same themes.

Staff noted commenters had also submitted best-practice lists (including Virginia-based material) that could inform application checklists: certified water/power figures, conditions, etc.

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Other business

Agenda also listed ACZR26/04 (broader definition / use-table / specific-use updates). The posted packet framed September as another discussion night, not final action on data-center text. Formal public hearing and governing-body consideration were expected later after more drafting.

Bottom line: The city is writing rules before it has a city-limits application, while a large Compass CUP proceeds separately at the county. Planning Commission heard staff’s size/power typology and a long list of public concerns (power, water, noise, cumulative impacts, verification of applicant claims). No ordinance was adopted that night.

Recent Topeka development activity (as of ~Sept 22, 2026) centers on Planning Commission discussion items (especially data centers), a new Community Development portal launch, ongoing 37th & Gage activity, multifamily projects, and limited new case filin

1. City news / Weekly Report (topeka.gov)

Latest Weekly Report (9-21-2026) and related news highlight the new Community Development Portal (Tyler EP&L / EnerGov) launching the week of Sept 21. It supports online permit/license applications, document uploads, status tracking, and payments. New transaction/processing fees apply (e.g., vendor tech fee + percentage). Link: https://cityoftopekaks-energovweb.tylerhost.net/apps/selfservice#/home.

Other notes: Land Bank lots transferred for affordable housing (map portal available); standard road/utility updates; no new major development project announcements in the report. Earlier reports referenced I-470 interchange planning near SE 29th/California and Topeka Blvd improvements (29th–37th).

2. Community Development / Tyler EP&L portal

Public home page is live (login/register required for applications, invoice pay, inspections, etc.). No unauthenticated public search of recent applications/permits/valuations or open cases was accessible in checks. Users must log in to apply or track. Fee estimator and related tools are present.

3. Building permits map (maps.topeka.org/BuildingPermits/)

Tool access failed in this check (page retrieval error). Prior DGM reports reference it for permit locations. No new high-value commercial/multifamily/industrial permits surfaced in news or agendas.

4. Topeka Speaks – Planning Commission

Sept 21, 2026 meeting (most recent; packet available): No action items (rezonings/CUPs/plats/annexations). Discussion only:

• ACZR26/05: Text amendments framework for data centers and energy storage systems (discussion of potential future code changes).
• ACZR26/04: Broader zoning code text amendments (definitions, use tables/dimensional standards, specific use requirements, amendments process).
• CPA26/02: Land Use & Growth Management Plan 2040 update (text/map changes reflecting implementation, housing study, Future Land Use Map revisions).

Aug 17, 2026 (prior actions; recommended approval in most cases):

• Z26/08 (Jay Rice for SENT Holdings, LLC): Rezone ~0.15-acre at 1600 SW Topeka Blvd from O&I-2 to M-1 (Two-Family) for future residential/affordable housing (modular duplexes). Recommended approval.
• Z26/09 (Watson Real Estate Development, Inc.): Rezone ~0.3-acre at 2016 SW 10th Ave from C-2 to M-1 for single-family home (~$225k New Orleans-style). Recommended approval.
• CPA26/01: Historic Old Town Neighborhood Plan update (bounded by SW 6th/Summit/Topeka Blvd/10th). Recommended approval with discussion on affordability/displacement.
• A26/02: Annexation request by St. Peters and Paul Orthodox Christian Church and 37th and Gage LLC. Packet includes UGA/Future Land Use/existing conditions maps. (Flagged 37th & Gage item.)
• Text amendments discussion (ACZR26/04 precursor).

Earlier 2026 cases (for context; not brand-new): Various small rezonings (e.g., industrial at Burlingame, downtown garages/CUPs by Kanza OZ LLC, Azura Credit Union O&I), plats (Shorey Estates by Habitat), PUD amendments, short-term rental CUPs, and Oldcastle annexation (A26/01 at 5230 NW 17th, approved by Council). One 37th/Gage multifamily rezoning (Z26/03 Peaks of Gage / Resource Housing) was withdrawn.

Next PC meeting not yet detailed beyond the Sept 21 items advancing toward Council as applicable.

5–6. Planning services pages / DGM monthly reports

Planning Services pages emphasize pre-app meetings (typically Thursdays), contacts (e.g., planning@topeka.org / 785-368-3728), and submission via the new portal. Scam alerts noted for invoices.

DGM reports: Only January 2026 PDF publicly located (files.topeka.gov). Summary: 25 total permits (down YoY), residential down modestly, commercial sharply down (4 vs 18), sq ft down, but valuation up ~20% to ~$6.9M; 3 housing units. Top permits listed by value; map link referenced. No later monthly reports (Feb–Aug/Sept) found in searches.

7. Local news (WIBW, CJ, REBusinessOnline) – notable projects

• The Hutch (downtown mixed-use multifamily, ~6th/Van Buren–Jackson): 192 units, 2,500 sf retail, amenities (rooftop Capitol views, pool, etc.); ~$50M; designed by Hoefer Welker / Flaherty & Collins. Break ground targeted ~Oct 2026 (24-month build, phased). City approvals earlier in 2026.
• Johnson-Betts Meadows (SE Topeka, 31st & Fremont): 176-unit affordable (SENT Inc.); broke ground ~June 30, 2026; $54M; rents ~$700–1,300 (subsidized); completion Fall 2027.
• California Crossing (SE 29th & California): CID (1.5% sales tax) and ~$1M phase-1 reimbursements approved earlier (Feb 2026) for supermarket (Super Mercado Nuestra Familia) + improvements; ~$6M total eligible costs; center ~42% vacant.
• 37th & Gage / Eveningside area: Dollar General under rapid construction (target completion ~Sept 24 / open early Oct 2026). Larger site (37th & Gage LLC / MCRE) graded/shovel-ready (~19–36 acres commercial/mixed-use potential; CID/TIF/RHID possible); annexation A26/02 involving church + LLC advanced at Aug PC. Prior 42-unit workforce multifamily discussion; some construction pauses noted earlier for church. Eveningside references mostly residential sales.
• Data centers: City text amendments under discussion (ACZR26/05). Separate Shawnee County Compass Datacenters CUP (southwest of Topeka near 77th/Wakarusa, ~600 acres light industrial, phased buildings) incomplete earlier, engineering review hired by County (Sept), noise/stormwater/etc. concerns; City special meeting held; temporary moratorium ordinance noted in records. Not a City permit yet.
• Other: QuikTrip + potential apartments/retail (I-470/S Topeka Blvd area); Hotel Topeka IRB/renovation support; various smaller items.

Summary for commercial brokers/developers: Portal launch is the main process change. Highest-interest items are data-center code framework (Sept PC discussion), 37th & Gage annexation/activity + Dollar General, The Hutch groundbreaking window, and California Crossing CID implementation. Limited brand-new large commercial/industrial filings in recent public agendas/news. Check portal (login) + maps.topeka.org for permits and Topeka Speaks for packets/hearings. Next Governing Body meetings (e.g., Oct 6) may advance PC recommendations. No major TIF/CID/RHID or industrial announcements beyond the above in the latest cycle.