HomeMy WebLinkAboutOrdinance 6678
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113 West Mountain Street
Fayetteville, AR 72701
(479) 575-8323
Ordinance: 6678
File Number: 2023-957
UDC ORDINANCE - DATA CENTERS/DIGITAL ASSET MINING FACILITIES (AMENDMENT):
AN ORDINANCE TO AMEND §151.01 DEFINITIONS; §161.31 DISTRICT I-2, GENERAL INDUSTRIAL; AND
§162.01 ESTABLISHMENT/LISTING; AND TO ENACT §164.27 DATA CENTERS IN THE UNIFIED
DEVELOPMENT CODE TO ADDRESS EXTERNAL NOISE ATTENUATION OF DATA CENTERS AND TO
PREVENT NOISE DISTURBANCES IN THE CITY OF FAYETTEVILLE, AND TO DECLARE AN EMERGENCY
WHEREAS, the equipment associated with the cooling systems and generators required to operate data centers
generate broadband noise and low-frequency hums that result in noise disturbance. Noise disturbance is the cause of
degradation and may produce negative impacts on public health, property, and the environment; and
WHEREAS, noise attenuation should be an integral part of the design and construction of data centers in order to
prevent noise pollution and noise disturbance; and
WHEREAS, the City of Fayetteville finds that the public interest is served by the prevention of unreasonable noise
emanating externally from the Data Centers and the provisions of this Ordinance are enacted for the purpose of
preserving and protecting the public health, safety, welfare and property of the residents of Fayetteville.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE,
ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby amends § 151.01 Definitions of the
Unified Development Code by enacting the following definition:
“Data Center: A facility constructed and operated that is engaged in storage, management, processing, and
transmission of digital data, including facilities used for cryptocurrency mining, which houses networked computer
systems along with supporting equipment such as batteries, back-up power generators, HVAC and cooling systems. A
data center does not include a dwelling unit used for home digital asset mining as defined by Ark. Code Ann. § 14-1-
501, et seq.”
Section 2: That the City Council of the City of Fayetteville, Arkansas hereby amends §162.01 Establishment/Listing
in Chapter 162 Use Units of the Unified Development Code by enacting a new section (VV) as follows:
(VV) Unit 47. Data Centers
(1) Description. Unit 47 consists of uses related to facilities engaged in storage, management, processing, and
transmission of digital data, including facilities used for cryptocurrency mining.
• •
Ordinance:6678
File Number:2023-957
(2)Included Uses.
�ata Center
Section 3: That the City Council of the City of Fayetteville,Arkansas hereby amends § 161.31 —District 1-2, General
Industrial of the Unified Development Code by adding Unit 47 to subsection(B)(1)Permitted Uses.
Section 4: That the City Council of the City of Fayetteville,Arkansas hereby enacts § 164.27 Data Centers in Chapter
164 Supplemental Zoning Regulations and Specialized Development Regulations of the Unified Development
Code as shown in Exhibit A attached hereto.
Section 5: That the City Council of the City of Fayetteville, Arkansas hereby determines that if any provision of this
Ordinance is found to be invalid by the decision of any court of competent jurisdiction, such invalidity shall not affect
the remaining sections,phrases,and provisions of this Ordinance which remain valid and enforceable.
Section 6: Emergency Clause. That the City Council of the City of Fayetteville, Arkansas hereby determines that this
ordinance should become effective without delay to address the potential harmful effects of noise disturbances
emanating from data centers, which is necessary for the public peace as well as the health and safety of Fayetteville
residents. Therefore, the City Council hereby declares an emergency exists such that this ordinance shall become
effective immediately upon its passage and approval.
PASSED and APPROVED on September 5,2023
Approve.: Attest:
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Mailing address:
113 W. Mountain Street
Fayetteville, AR 72701
www.fayetteville-ar.gov
CITY COUNCIL MEMO
2023-957
MEETING OF SEPTEMBER 5, 2023
TO: Mayor Jordan and City Council
THRU:
FROM:
DATE:
SUBJECT: .
RECOMMENDATION:
Councilmember Moore is sponsoring an ordinance to address external noise attenuation of data centers and to
prevent noise disturbances in the City of Fayetteville. The ordinance contains an emergency clause and would
go into effect immediately.
BACKGROUND:
DISCUSSION:
BUDGET/STAFF IMPACT:
ATTACHMENTS: Agenda Request - Data Centers and Digital Asset Mining Facilities - Councilmember Moore,
AR Municipal League Crypto Mining and Data Center Guidance, Exhibit A - Data Center Regulations
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City of Fayetteville, Arkansas
Legislation Text
113 West Mountain Street
Fayetteville, AR 72701
(479) 575-8323
File #: 2023-957
.
AN ORDINANCE TO AMEND §151.01 DEFINITIONS; §161.31 DISTRICT I-2, GENERAL
INDUSTRIAL; AND §162.01 ESTABLISHMENT/LISTING; AND TO ENACT §164.27 DATA
CENTERS IN THE UNIFIED DEVELOPMENT CODE TO ADDRESS EXTERNAL NOISE
ATTENUATION OF DATA CENTERS AND TO PREVENT NOISE DISTURBANCES IN THE
CITY OF FAYETTEVILLE, AND TO DECLARE AN EMERGENCY
WHEREAS, the equipment associated with the cooling systems and generators required to operate data
centers generate broadband noise and low-frequency hums that result in noise disturbance. Noise
disturbance is the cause of degradation and may produce negative impacts on public health, property,
and the environment; and
WHEREAS, noise attenuation should be an integral part of the design and construction of data centers
in order to prevent noise pollution and noise disturbance; and
WHEREAS, the City of Fayetteville finds that the public interest is served by the prevention of
unreasonable noise emanating externally from the Data Centers and the provisions of this Ordinance are
enacted for the purpose of preserving and protecting the public health, safety, welfare and property of
the residents of Fayetteville.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby amends § 151.01
Definitions of the Unified Development Code by enacting the following definition:
“Data Center: A facility constructed and operated that is engaged in storage, management, processing,
and transmission of digital data, including facilities used for cryptocurrency mining, which houses
networked computer systems along with supporting equipment such as batteries, back-up power
generators, HVAC and cooling systems. A data center does not include a dwelling unit used for home
digital asset mining as defined by Ark. Code Ann. § 14-1-501, et seq.”
Section 2: That the City Council of the City of Fayetteville, Arkansas hereby amends §162.01
Establishment/Listing in Chapter 162 Use Units of the Unified Development Code by enacting a new
section (VV) as follows:
(VV) Unit 47. Data Centers
Ordinance: 6678
File Number: 2023-957
Page 2
(1) Description. Unit 47 consists of uses related to facilities engaged in storage, management,
processing, and transmission of digital data, including facilities used for cryptocurrency mining.
(2) Included Uses.
Data Centers
Section 3: That the City Council of the City of Fayetteville, Arkansas hereby amends § 161.31 –
District I-2, General Industrial of the Unified Development Code by adding Unit 47 to subsection
(B)(1) Permitted Uses.
Section 4: That the City Council of the City of Fayetteville, Arkansas hereby enacts § 164.27 Data
Centers in Chapter 164 Supplemental Zoning Regulations and Specialized Development
Regulations of the Unified Development Code as shown in Exhibit A attached hereto.
Section 5: That the City Council of the City of Fayetteville, Arkansas hereby determines that if any
provision of this Ordinance is found to be invalid by the decision of any court of competent jurisdiction,
such invalidity shall not affect the remaining sections, phrases, and provisions of this Ordinance which
remain valid and enforceable.
Section 6: Emergency Clause. That the City Council of the City of Fayetteville, Arkansas hereby
determines that this ordinance should become effective without delay to address the potential harmful
effects of noise disturbances emanating from data centers, which is necessary for the public peace as
well as the health and safety of Fayetteville residents. Therefore, the City Council hereby declares an
emergency exists such that this ordinance shall become effective immediately upon its passage and
approval.
Civic Clerk Item No.: 2023-957
AGENDA REQUEST FORM
FOR: Council Meeting of September 5, 2023
FROM: Council Member Sarah Moore
ORDINANCE OR RESOLUTION TITLE AND SUBJECT:
AN ORDINANCE TO AMEND §151.01 DEFINITIONS; § 161.31 DISTRICT
I-2, GENERAL INDUSTRIAL; AND § 162.01 ESTABLISHMENT/LISTING;
AND TO ENACT § 164.27 DATA CENTERS IN THE UNIFIED
DEVELOPMENT CODE TO ADDRESS EXTERNAL NOISE ATTENUATION
OF DATA CENTERS AND TO PREVENT NOISE DISTURBANCES IN THE
CITY OF FAYETTEVILLE, AND TO DECLARE AN EMERGENCY
APPROVED FOR AGENDA:
____________________________________ _________________________
City Council Member
Sarah Moore
____________________________________ _________________________
Senior Assistant City Attorney
Blake Pennington
Approved as to form
Approved by email 8/9/2023
8/9/2023
ORDINANCE NO. ____________
AN ORDINANCE TO AMEND §151.01 DEFINITIONS; § 161.31 DISTRICT I-2,
GENERAL INDUSTRIAL; AND § 162.01 ESTABLISHMENT/LISTING; AND TO
ENACT § 164.27 DATA CENTERS IN THE UNIFIED DEVELOPMENT CODE TO
ADDRESS EXTERNAL NOISE ATTENUATION OF DATA CENTERS AND TO PREVENT
NOISE DISTURBANCES IN THE CITY OF FAYETTEVILLE, AND TO DECLARE AN
EMERGENCY
WHEREAS, the equipment associated with the cooling systems and generators required to operate
data centers generate broadband noise and low-frequency hums that result in noise disturbance.
Noise disturbance is the cause of degradation and may produce negative impacts on public health,
property, and the environment; and
WHEREAS, noise attenuation should be an integral part of the design and construction of data
centers in order to prevent noise pollution and noise disturbance; and
WHEREAS, the City of Fayetteville finds that the public interest is served by the prevention of
unreasonable noise emanating externally from the Data Centers and the provisions of this
Ordinance are enacted for the purpose of preserving and protecting the public health, safety,
welfare and property of the residents of Fayetteville.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby amends § 151.01
Definitions of the Unified Development Code by enacting the following definition:
“Data Center: A facility constructed and operated that is engaged in storage, management,
processing, and transmission of digital data, including facilities used for cryptocurrency mining,
which houses networked computer systems along with supporting equipment such as batteries,
back-up power generators, HVAC and cooling systems. A data center does not include a
dwelling unit used for home digital asset mining as defined by Ark. Code Ann. § 14-1-501, et
seq.”
Section 2: That the City Council of the City of Fayetteville, Arkansas hereby amends §162.01
Establishment/Listing in Chapter 162 Use Units of the Unified Development Code by enacting
a new section (VV) as follows:
(VV) Unit 47. Data Centers
(1) Description. Unit 47 consists of uses related to facilities engaged in storage,
management, processing, and transmission of digital data, including facilities used for
cryptocurrency mining.
(2) Included Uses.
Data Centers
Section 3: That the City Council of the City of Fayetteville, Arkansas hereby amends § 161.31 –
District I-2, General Industrial of the Unified Development Code by adding Unit 47 to
subsection (B)(1) Permitted Uses.
Section 4: That the City Council of the City of Fayetteville, Arkansas hereby enacts § 164.26
Data Centers in Chapter 164 Supplemental Zoning Regulations and Specialized
Development Regulations of the Unified Development Code as shown in Exhibit A attached
hereto.
Section 5: That the City Council of the City of Fayetteville, Arkansas hereby determines that if
any provision of this Ordinance is found to be invalid by the decision of any court of competent
jurisdiction, such invalidity shall not affect the remaining sections, phrases, and provisions of this
Ordinance which remain valid and enforceable.
Section 6: Emergency Clause. That the City Council of the City of Fayetteville, Arkansas hereby
determines that this ordinance should become effective without delay to address the potential
harmful effects of noise disturbances emanating from data centers, which is necessary for the
public peace as well as the health and safety of Fayetteville residents. Therefore, the City Council
hereby declares an emergency exists such that this ordinance shall become effective immediately
upon its passage and approval.
EXHIBIT A
Section 164.26 Data Centers
(A) Purpose and Applicability. All Data Centers constructed within the City of Fayetteville shall
be designed and built to incorporate sufficient external noise attenuation measures in order to
minimize the impact of noise disturbance on residents.
(B) Definitions. For the purpose of this section, the following definitions shall apply unless the
context clearly indicates or requires a different meaning:
1. Ambient Noise: The all-encompassing noise level associated with a given environment,
being a composite of sounds from all sources, excusing the alleged offensive noise, at the
locations and approximate time at which comparison with the alleged offensive noise is
to be made.
2. Data Center shall have the same meaning as set forth in § 151.01 Definitions of the
Unified Development Code.
3. Decibel (dB) shall have the same meaning as set forth in § 96.01 Definitions of Chapter
96 Noise Control.
4. Mechanical Equipment: The networked computer systems along with supporting
equipment such as batteries, backup generators, and cooling systems housed on the Data
Center’s property.
5. Noise Attenuation: The reduction of noise levels through the use of sound-absorbing
material, architectural design techniques, and/or any other suitable means.
6. Noise Disturbance shall have the same meaning as set forth in § 96.01 Definitions of
Chapter 96 Noise Control.
7. Person: An individual, association, partnership, or corporation, including any officer,
employee, department, or agency.
8. Sound: An oscillation in pressure, particle displacement, particle velocity or other
physical parameter, in a medium with internal forces that causes compression and
rarefaction of that medium. The description of sound may include any characteristic of
such sound, including duration, intensity and frequency.
9. Sound Level: shall have the same meaning as set forth in § 96.01 Definitions of Chapter
96 Noise Control.
10. Sound Level Meter: shall have the same meaning as set forth in § 96.01 Definitions of
Chapter 96 Noise Control.
(C) Noise Attenuation Requirements. Before a Data Center has commenced construction or
operating within this jurisdiction, the property owner and operator proposing to build a Data
Center shall comply with the following:
(1) Notice Requirements. The property owner and operator must notify all residents within a
half-mile radius of the parcel, including any affiliated homeowners’ association operating
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within the half-mile radius, that the property owner and operator intends to build and
operate a Data Center on the property. The notice required in this section must be mailed
to all property owners, residents, and homeowners’ association addresses contained
within a half-mile radius extending from the boundary of the site where the proposed
Data Center will be built. Proof of notification shall be filed with the Planning Division
within 30 days of providing notice. The property owner and operator must notify the
Mayor that the property owner and operator intend to build and operate a Data Center.
The notice must include the location for the proposed data center. This public notification
shall occur at the same time as any other notification required by Chapter 157. If no
public hearing is required, then this notification shall occur no less than thirty days prior
to the submission of the applicant’s development or business license application,
whichever occurs first.
(2) Noise Study Requirements. The property owner of the lands upon which the Data Center
is to be located shall conduct a sound study performed by a third-party acoustic engineer
to document baseline sound levels in the area of the proposed Data Center, including
noise levels measured at the boundary of the site in eight locations (north, south, east,
west, northeast, northwest, southeast, southwest.) The report of the study must include
sound mitigation recommendations based on the results of the sound study. The property
owner must provide a copy of the report of the study to the Planning Division within 30
days of completion of the report.
(3) Noise Attenuation Plan Requirements
(a) The property owner must consult with a third- party architectural or design firm to
develop a building plan that includes necessary noise attenuation measures in
order to prevent the external sound level emanating from the Data Center from
exceeding the sound level limitations contained in in Chapter 96 Noise Control
which would be considered a noise disturbance. The building plan is not required
to adopt any or all of the noise attenuation recommendations so long as the plan
includes noise attenuation measures that the City deems adequate to be in
compliance with this section. Noise attenuation measures may include but not
limited to:
(i) Soundproofing walls, screens, panels, fences, or enclosures
(ii) Buffer yards
(iii)Other noise attenuation measures recommended by the third-party acoustic
engineer or the City
(b) Mechanical equipment must be shown on any proposed plan and must be fully
screened on all sides. Mechanical equipment not screened by a facade of the
building must be screened by a visually solid fence, screen wall or panel, or
parapet wall and constructed with a design, materials, details, and treatment
compatible with those used on the nearest facade of the building.
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(c) The property owner must provide a copy of the building plan to the City within 30
days of completion of the plan prior to construction.
(d) Any additions, changes, or expansions of the Data Center must comply with the
noise attenuation requirements of this section and must be designed and submitted
to the City within 30 days of completion of the report.
(4) Post Completion Noise Study Requirements
(a) Upon the Data Center’s completion, the Data Center operator must conduct a
post-construction noise study performed by a third-party acoustic engineer to
document noise levels emanating from the Data Center when mechanical
equipment is running at full capacity, including all HVAC units and generators
necessary for peak operation. Noise levels are to be measured at the boundary of
the site in the original eight locations used during the baseline study. The Data
Center operator must provide a copy of the report to the City within 10 days of
completion of the study.
(b) The Data Center shall not begin operations until the completion of the post-
construction noise study and submission to the City as required above. In order
for the Data Center to be in compliance, the noise study results must show that its
operation is in compliance with this section and will not adversely impact
residential neighbors. If the results show that the Data Center is not in compliance
with this section or will adversely impact residential neighbors, the Data Center
will be unable to commence operation until the required noise attenuation
measures and noise limitations are met.
(c) Furthermore, the Data Center operator must conduct annual noise studies under
the baseline and post-construction studies specifications in accordance with
subsections (a) and (b) above. The Data Center operator must provide the results
to the City within 10 days after the anniversary date of the first sound study
report.
(D) Procedure for Measurement. All tests shall be conducted according to the procedures set
forth in Chapter 96 Noise Control.
(E) Noise Limitations. It shall be unlawful for any Data Center to make, or continue to cause or
permit to be made or continued, noise levels constituting a noise disturbance. For the purposes of
this section, the external noise level emanating from Data Centers shall be deemed disturbing to
a person, reasonably calculated to disturb the peace and unreasonably offensive and injurious to
the public, or their property, if the sound level does not comply with the limits set forth in
Chapter 96 Noise Control.
(F) Violations and Penalties. Violations of the noise limitations shall be subject to the
enforcement and penalty provisions of Chapter 96 Noise Control as well as any remedies
available to the City pursuant to the Unified Development Code, state or federal law. Violations
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of other provisions of this section shall be subject to the enforcement and penalty provisions of
the Unified Development Code.
(1) Any or all of the following persons may be held responsible for noise violations:
(a) The person operating the equipment or creating the noise;
(b) The person who employs the person operating the equipment or creating the noise
at the time of the violation;
(c) The person who owns or rents the property where the violation occurs.
(2) The following acts, and the causing thereof, are declared to be in violation of this section:
(a) The sound level emanating from the Data Center exceeds that allowed by Chapter
96 Noise Control.
(b) The noise attenuation measures provided in the design plan to the City are not
incorporated in the construction of the Data Center.
(c) Any of the required sound study results are not filed with the City within 30 days
of completion of the report.
(d) The building plan is not filed with the City within 30 days of completion of the
plan prior to construction.
(e) Failure to act in accordance with any other provision of this section.
(3) All data centers shall be in compliance with the requirements of this section before the
City will issue a certificate of occupancy; failure to do so will be deemed a violation of
this section and may result in an injunction, a stay in commencing operation, denial of
allowed occupancy, or denial or withdrawal of city utilities or services.
In working to understand the impact of Act 851 it’s important to first understand
four key things about the act:
(1) the written intent of Act 851;
(2) the definitions and therefore distinction between “digital asset mining
business” and “home digital asset mining”;
(3) what Act 851 expressly authorizes; and
(4) what Act 851 expressly prohibits.
To start, the intent of Act 851, as written in the act itself, is to recognize that
data centers create jobs, pay taxes, and provide general economic value to local
communities and this state; and to clarify the guidelines needed to protect data asset
miners from discriminatory industry specific regulations and taxes.
Turning towards the definitions, again contained in Act 851, let’s start with the
definition of “digital asset mining business.” Act 851 defines these as “a group of
computers working at a single site that consumes more than one megawatt (1MW) on
an average annual basis for the purpose of generating digital assets by securing a
blockchain network.” A “home digital asset mining,” on the other hand, is defined in Act
851 as a “mining digital assets in areas zoned for residential use.” Keep these two
definitions in mind as you continue reading because Act 851 distinguishes between
these two when determining what a city or town can do, or not do, when thinking of
regulating these two types of crypto facilities.
Per Act 851, a “digital asset mining business” may operate in this state if the
digital asset mining business complies with four things:
(1) state law concerning business guidelines and tax policies;
(2) any ordinance concerning operations and safety;
(3) any rule or rate for utility service provided by or on behalf of a public
entity; and
(4) State and federal employment laws.
As you know, Arkansas law expressly authorizes cities and towns to “perform any
function and exercise full legislative power in any and all matters of whatsoever nature
pertaining to its municipal affairs.” Ark. Code Ann. § 14-43-602. Of course, there are
limitations on this express authority, i.e., when the Legislature passages legislation to
limit that authority. Act 851 sets such limitations by, first and foremost, prohibiting
local governments from outright banning digital asset mining businesses. But, the act
does allow for local governments to determine, in part, where a “digital asset mining
business” can locate inside a city or town. For example, Act 851 specifically states that
a person may have a “digital asset mining business” in an area that is zoned for
industrial use that has not been designated by the local government for other uses. In
other words, a city or town can’t pass an ordinance prohibiting a “digital asset mining
business” from operating, but the city or town can require that business locate in an
industrial zone. In other words, “digital asset mining businesses” do not have
exceptions from all local government regulations, laws, or rules; but Act 851 does place
a limit on a city or town’s ability to restrict and regulate.1
Now that we know what a “digital asset mining business” needs to comply with
to operate and now that we know a bit about how a city or town can regulate these
businesses, let’s turn to more specifics about what Act 851 prohibits local governments
from doing in relation to the operation of “digital asset mining businesses.”
According to the Act, local governments cannot:
(1) enact or adopt an ordinance, policy, or action that limits the sound
decibels generated from “home digital asset mining” other than the limits
set for sound pollution generally;
(2) impose a different requirement for a digital asset mining business that is
applicable to any requirement for a data center;
(3) rezone an area in which a digital asset mining business is located without
complying with applicable state law and local zoning ordinances; and
(4) rezone an area with the intent or effect of discriminating against a digital
asset mining business.
Let’s break these restrictions on local governments down a bit more. The first (1)
restriction is related to “home digital asset mining” and noise ordinances. Like other
home businesses, people typically don’t know a business is being operated in their
1 While this list seems easy enough, there is an argument floating around that so long
as a digital asset mining business satisfies the four things above, then there can be no
further regulation on these businesses. In our opinion, this argument reads words into
this section than what actually exist. For starters, all this section of Act 851 states is
that a digital mining business “may operate in this state” if the business complies with
these four things. This section does not state, “a digital asset mining business shall be
authorized to operate anywhere in the state.” Nor does it by default preempt digital
asset mining businesses from following any other state, federal, or local rule or law that
is not encompassed in those the four listed points. For example, it would be difficult to
argue that a digital asset mining business is authorized to violate any ADEQ or EPA
rules, or the State Fire Code, or any other local ordinances.
neighbor’s house until it gets to point where it’s obvious that a non-residential use is
occurring on the property. As we now know, someone would likely never know that a
neighbor is using their house for home digital asset mining. If someone is running a
couple of computers mining Bitcoin, it’s unlikely that anyone will ever hear it; this is
because the neighbor doesn’t need industrial-size HVAC units to keep the systems cool,
which is the primary reason there is so much noise associated with large-scale crypto
mining businesses. But, recall the definition of “digital asset mining business”
mentioned above; if your neighbor has a group of computers that consumes more than
one megawatt of power on an average annual basis for the purpose of generating digital
assets, then your neighbor now has a “digital asset mining business” and is no longer
operating a “home digital asset mining” business. With that in mind, Act 851 prohibits
a city or town from enacting any noise ordinance applying to “home digital asset
mining” that does not apply to noise in your city or town generally, i.e., there can be no
special noise ordinance targeting a “home digital asset mining” business.
Turning to the second (2) restriction, cities and towns are prohibited from
imposing different requirements for a “digital asset mining business” than what is
applicable to other “data centers.” The third (3) restriction prohibits local governments
from rezoning areas in which digital asset mining businesses exist without following
state law and your own zoning ordinances. The final (4) restriction prohibits local
governments from discriminating against this type of business. These restrictions on
cities and towns are in line with the intent of Act 851.
Now, let’s discuss some of the practical issues your city or town will likely face
and how you can deal with those issues. Before we do, let’s reiterate that local
governments cannot outright prohibit digital asset mining businesses. Even though
there is no outright prohibition on these businesses, there are three avenues by which a
city or town can address some of the common challenges that consistently arise with
these types of businesses.
The first avenue is through existing zoning and land-use law. This, of course,
applies primarily to cities that have zoning and land-use plans already implemented.
Like we mentioned above, Act 851 authorizes a person to have a digital asset mining
business in an area that is zoned for industrial use that has not been designated by the
local government for other uses. But, that is not the end of your city’s ability to apply
existing local zoning laws—all of your other local zoning ordinances are still applicable.
With that said, your local zoning ordinances may need to be updated to consider “data
centers” and now, more specifically, “digital asset mining businesses.” If your city has
no zoning ordinances related to “data centers” and/or “digital asset mining business”,
now would be a good time to look into making changes to your zoning to reflect these
new types of businesses.
The second avenue local governments have available is through your authority
and ability to abate nuisances. A “nuisance” under Arkansas law (Ark. Code Ann. § 14-
54-1502) is defined as conduct within a city or town that unreasonably interferes with
the use and enjoyment of lands of another, including conduct on property which
disturbs the peaceful, quiet and undisturbed use and enjoyment of nearby property. As
you know, a primary function of a city or town is to ensure the peaceful, quiet and
undisturbed use and enjoyment of residents’ property. This means cities and towns can
enact reasonable and non-discriminatory legislation at the local level to ensure
everyone can enjoy their property. One of the biggest ways a resident’s ability to enjoy
her/his property can be interfered with is through noise; so, let’s start there.
As we’re sure many of you have seen—or heard—there are many examples of
“digital asset mining businesses” being very noisy, and being very noisy 24/7. While Act
851 specifically prohibits local governments from passing a noise ordinance on “home
digital asset mining” businesses that is different than the general sound pollution
ordinance, Act 851 does not prohibit local governments from having noise ordinances on
“digital asset mining businesses” so long as that noise ordinance applies the same to
data centers. We’ll also note a key distinction in a traditional noise ordinance and the
issue with noise we’re seeing with “digital asset mining businesses”—we’re not dealing
with someone running a chainsaw or revving up a motorcycle for a couple minutes or
for a couple of hours; rather, we are dealing with a continuous noise that never stops at
high levels extending off the property lines. We should add that while noise is a
primary concern with “digital asset mining,” Act 851 does allow other types of
requirements on these businesses, so long as those requirements apply to the same data
centers.
Finally, the third avenue through which cities and towns can deal with some of
these issues is through utility rates. Act 851 requires “digital asset mining businesses”
to comply with any rule or rate for utility service provided by or on behalf of a public
entity. Further, the prohibition from imposing a different requirement for a digital
asset mining business than what is applicable to other data centers does not apply to
any rule or rate for utility service provided by or on behalf of a public entity. So, when
setting our rates for utility services, local governments can analyze the impact these
types of businesses will have on the utility system when setting rates for a “digital
asset mining business.”
FREQUENTLY ASKED QUESTIONS
What are crypto miners?
Crypto-miners are groups of computers that work continuously to solve block-chain
algorithms for a chance to be financially rewarded. Under Act 851, there are two types
of crypto miners: (1) Home digital asset miners; and (2) Digital asset mining business.
The two types are regulated differently.
Are there any advantages to crypto miners moving into a community?
Yes. Crypto miners can generate revenue for a community by using lots of electricity
which is subject to taxes and franchise fees. Commercial crypto miners often house lots
of computers that are subject to property taxes. Assuming secondary impacts are
properly managed, these revenues may greatly exceed the increased burdens imposed
on cities and towns by crypto miners.
What are the regulatory concerns about crypto miners?
1. Appearance. Sometimes, crypto miners are housed in large shipping containers
that are inappropriate for areas where aesthetics are important to a community.
2. Noise. The primary complaint about crypto miners is noise. Crypto miners can
produce significant noise that is disruptive to a community.
3. Portability. Crypto miners are typically very portable; meaning, they can move
overnight. The business processes of cities and towns should contemplate the inherent
portability of crypto miners.
4. Electric Usage. Crypto miners consume lots of electricity. In areas where the
availability of electricity is limited, crypto miners can be challenging for local utilities.
5. Wastewater Usage. Crypto miners typically have little demand for wastewater
infrastructure. This is only a problem where a city or town has invested in wastewater
infrastructure adjacent to a crypto miner and plan to recoup the investment through
usage fees.
6. Water Usage. Water usage by crypto miners can vary greatly. Those that use
water for cooling will use enormous amounts of water while those that use other
cooling technologies will use little water.
7. Environmental Objectives. A city or town seeking to reduce its carbon footprint
will find crypto miners to be challenging. Crypto miners consume enormous amounts
of electricity that cause some environmental objectives to be harder to achieve.
How does Act 851 constrain local regulation?
1. No prohibition. Under 14-1-504(a), a digital asset mining business that complies
with four general requirements may not be prohibited from operating in the state. A
simple reading of this rule means that an otherwise compliant digital asset mining
business must be allowed to operate somewhere in the state. More technically, the rule
suggests that a digital asset mining business may not be prohibited by any city or town
because it is not considered a nuisance per se. I recommend that each city and town
designate an area where digital asset mining business can lawfully operate.
2. Must allow home digital asset mining in residential zones. Under 14-1-504(c),
residents are allowed to operate home digital asset mining businesses in their homes.
This rule is consistent with other home-based business rules. Please note that noise
regulations apply under #4 below.
3. Must allow digital asset mining businesses in industrial zones, unless area is
designated for another use. Under 14-1-504(d), a person may have a digital asset
mining business in an industrially zoned area unless the area is designated for other
uses. This rule both creates an assumption that crypto mining business should be
located in industrial areas and provides an exception for cities that wish to designate
an industrial area for other purposes, such as an industrial park used to attract jobs
(crypto miners have few employees).
4. Noise emanating from home digital asset mining may be regulated. Under 14-1-
505(a)(1), noise regulations applicable to home digital asset mining should be no
different than general noise regulations. I recommend that you review your noise
ordinance and consider regulating continuous noise differently than peak noise.
5. Noise emanating from digital asset mining businesses may be regulated. Under
14-1-505(a)(2), noise regulations applicable to digital asset mining businesses should be
no different than noise regulations for data centers. I recommend that you review your
noise ordinance and consider specific noise regulations for crypto miners and data
centers.
6. Avoid discriminatory practices. Under 14-1-505(a)(4), cities and towns are
prohibited from rezoning an area with the intent or effect of discriminating against a
digital asset mining business. This means that you should not rezone an area from
industrial to residential or commercial when you know that a digital asset mining
business plans to locate in that area.
What points should a city or town consider in regulating crypto miners?
1. Stay within the rules.
2. Restrict crypto miners to home-based operations or industrial zones.
3. Review your noise ordinance and consider special restrictions on: (a) continuous
noise; and (b) noise from crypto miners and data centers.
4. Restrict crypto mining from areas that you are specifically using for purposes that
are inconsistent with crypto mining, like industrial parks used to attract jobs.
Review utility rules and rates to manage risk associated with inherently transient
businesses like crypto miners.
1
Please carefully review this sample ordinance with your city attorney. You may need to modify
this ordinance to better reflect the needs of your city or town.
BE IT ENACTED BY THE CITY/TOWN OF ______, ARKANSAS, AN ORDINANCE TO
BE ENTITLED:
AN EMERGENCY ORDINANCE ADOPTING CERTAIN RULES AND REGULATIONS
CONCERNING EXTERNAL NOISE ATTENUATION OF DATA CENTERS AND TO
PREVENT NOISE DISTURBANCE IN THE CITY/TOWN OF __________ ;TO
DECLARE AN EMERGENCY; AND FOR OTHER PURPOSES
WHEREAS, the equipment associated with the cooling systems and generators required to
operate data centers generate broadband noise and low-frequency hums that result in noise
disturbance. Noise disturbance is the cause of degradation and may produce negative impacts on
public health, property, and the environment.
WHEREAS, noise attenuation should be an integral part of the design and construction of data
centers in order to prevent noise pollution and noise disturbance.
WHEREAS, the city/town finds that the public interest is served by the prevention of
unreasonable noise emanating externally from the Data Centers and the provisions of this
Ordinance are enacted for the purpose of preserving and protecting the public health, safety,
welfare and property of the citizens of ____________, Arkansas.
THEREFORE, BE IT ORDAINED BY THE CITY/TOWN OF _________ , ARKANSAS,
AS FOLLOWS:
ARTICLE 1. Purpose and Applicability
All Data Centers constructed within this jurisdiction shall be designed and built to incorporate
external noise attenuation measures in order to minimize the impact of noise disturbance on the
residents of __________, Arkansas.
This ordinance shall apply to limit the noise disturbance originating within the municipal limits
of ___________ , Arkansas.
ARTICLE 2: Definitions
For the purpose of this Ordinance, the following definitions shall apply unless the context clearly
indicates or requires a different meaning:
1. Ambient Noise: The all-encompassing noise level associated with a given environment,
being a composite of sounds from all sources, excusing the alleged offensive noise, at the
2
locations and approximate time at which comparison with the alleged offensive noise is
to be made.
2. Data Center: A facility constructed and operated that is engaged in storage, management,
processing, and transmission of digital data, including facilities used for cryptocurrency
mining, which houses networked computer systems along with supporting equipment
such as batteries, back-up power generators, HVAC and cooling systems.
3. Decibel (dB): A unit for measuring the volume of a sound, equal to twenty (20) times to
the base 10 (10) of the ratio of the pressure of the sound measured to the referenced
pressure, which is twenty (20) micropascals (twenty (20) micronewtons per square
meter.)
4. Mechanical Equipment: The networked computer systems along with supporting
equipment such as batteries, backup generators, and cooling systems housed on the Data
Center’s property.
5. Noise Attenuation: The reduction of noise levels through the use of sound-absorbing
material, architectural design techniques, and/or any other suitable means.
6. Noise Disturbance is any sound which:
a. Endangers or injures the safety or health of humans or animals; or
b. Annoys or disturbs a reasonable person of normal sensitivities; or
c. Endangers or injures person or real property.
7. Person: An individual, association, partnership, or corporation, including any officer,
employee, department, or agency.
8. Property Line: An imaginary line along the ground surface, and its vertical extension,
which separates the real property owned by one person from that owned by another
person, but not including intra-building real property divisions.
9. Sound: An oscillation in pressure, particle displacement, particle velocity or other
physical parameter, in a medium with internal forces that causes compression and
rarefaction of that medium. The description of sound may include any characteristic of
such sound, including duration, intensity and frequency.
10. Sound Level: The weighted sound pressure level obtained by the use of s sound level
meter and frequency weighting network, such as A, B, or C as specified in American
National Standards Institute specifications for sound level meters (ANSI SI. 4-1971, or
the latest approved revision thereof). If the frequency weighting employed is not
indicated, the A-weighting shall apply.
11. Sound Level Meter: An instrument which includes a microphone, an amplifier, RMS
detector, integrator or time averager, output meter, and weighting networks used to
measure sound pressure levels.
ARTICLE 3: Noise Attenuation Requirements
Before a Data Center has commenced construction or operating within this jurisdiction, the
property owner and operator proposing to build a Data Center shall comply with the following:
3
1. Notice Requirements
a. The property owner and operator must notify all residents within a half-mile
radius of the parcel, including any affiliated homeowners’ association operating
within the half-mile radius, that the property owner and operator intends to build
and operate a Data Center on the property. The notice required in this section
must be mailed to all postal addresses and homeowners’ association addresses
contained within a half-mile radius extending from the property line where the
proposed Data Center will be built. Proof of notification shall be filed with the
city clerk’s office within 30 days of providing notice. The property owner and
operator must notify the mayor that the property owner and operator intends to
build and operate a Data Center. The notification must include the location for the
proposed data center.
2. Noise Study Requirements
a. The property owner of the lands upon which the Data Center is to be located shall
conduct a sound study performed by a third-party acoustic engineer to document
baseline sound levels in the area of the proposed Data Center, including noise
levels measured at the property line in eight locations (north, south, east, west,
northeast, northwest, southeast, southwest.) The report of the study must include
sound mitigation recommendations based on the results of the sound study. The
property owner must provide a copy of the report of the study to the mayor and
file with the city clerk within 30 days of completion of the report.
3. Noise Attenuation Plan Requirements
a. The property owner must consult with a third- party architectural or design firm to
develop a building plan that includes necessary noise attenuation measures in
order to prevent the external sound level emanating from the Data Center from
exceeding the sound level limitations below which will be considered a noise
disturbance. The building plan is not required to adopt any or all of the noise
attenuation recommendations so long as the plan includes noise attenuation
measures that the architectural or design firm deems adequate to be in compliance
with this Ordinance. Noise attenuation measures may include but not limited to:
i. Soundproofing walls, screens, panels, fences, or enclosures
ii. Buffer yards
iii. Other noise attenuation measures recommended by the third-party acoustic
engineer
b. Mechanical equipment must be shown on any proposed plan and must be fully
screened on all sides. Mechanical equipment not screened by a facade of the
building must be screened by a visually solid fence, screen wall or panel, or
parapet wall and constructed with a design, materials, details, and treatment
compatible with those used on the nearest facade of the building.
4
c. The property owner must provide a copy of the building plan to the mayor and
file with the city clerk within 30 days of completion of the plan prior to
construction.
d. Any additions, changes, or expansions of the Data Center must comply with the
noise attenuation requirements of this Ordinance and must be designed and
submitted to the mayor and filed with the city clerk within 30 days of completion
of the report.
4. Post Completion Noise Study Requirements
a. Upon the Data Center’s completion, the Data Center operator must conduct a
post-construction noise study performed by a third-party acoustic engineer to
document noise levels emanating from the Data Center when mechanical
equipment is running at full capacity, including all HVAC units and generators
necessary for peak operation. Noise levels are to be measured at the property line
in the original eight locations used during the baseline study. The Data Center
operator must provide a copy of the report to the mayor and file with the city clerk
within 30 days of completion of the study.
b. The Data Center shall not begin operations until the completion of the post-
construction noise study and submission to the mayor and city clerk as required
above. In order for the Data Center to be in compliance, the noise study results
must show that its operation is in compliance with this Ordinance. If the results
show that the Data Center is not in compliance with this Ordinance, the Data
Center will be unable to commence operation until the required noise attenuation
measures and noise limitations are met.
c. Furthermore, the Data Center operator must conduct annual noise studies under
the baseline and post-construction studies specifications in accordance with
subsections (a) and (b) above. The Data Center operator must provide the results
to the mayor and file with the city clerk within 30 days after the anniversary date
of the first sound study report.
ARTICLE 4: Procedure for Measurement
All tests shall be conducted according to the following procedures:
1. Complaint Driven: When the measurement is the result of a complaint, measurements
will be taken at the property line of the receiving property.
2. Normal Monitoring: When the measurement procedure is in the normal course of
monitoring sound, the measurements will be taken at the real property line of the source
of the sound.
3. Outdoor Conditions: No outdoor measurements must be taken while winds exceed
(including gusts) 15 miles per hour; under conditions that will allow the sound level
5
meter to become wet; or when the ambient temperature is out of range of tolerance on the
sound meter.
4. Calibration: The sound level meter must be verified and calibrated according to the
manufacturer’s specifications immediately prior to taking the measurements.
5. Meter Placement: The sound level meter must be placed a minimum of four feet above
the ground or from any reflective surface. The microphone must be pointed at the sound
source.
6. Measurements: Measurements must include “high”, “average”, and “low” readings. If the
sound level meter does not provide these multiple readings, a minimum of three separate
measurements must be taken at a single location at varying time intervals. The average
sound level reading shall be used to determine whether there has been a violation of this
Ordinance.
7. Monitoring Report: The report for each measurement session must include:
a. The day, date and time of the measurements,
b. Date and time of recent calibration,
c. Temperature and wind speed the time of measurement,
d. Identification of the monitoring equipment,
e. Location, land use, and description of the source,
f. Location and land use of the listener, and
g. Sound level measurements.
8. Extraneous Sounds: If there are extraneous sound sources that are unrelated to the
measurements and increase the monitored sound level, the measurement shall be
postponed until these noises subside.
ARTICLE 5: Noise Limitations
It shall be unlawful for any Data Center to make, or continue to cause or permit to be made or
continued, noise levels constituting a noise disturbance. For the purposes of this section, the
external noise level emanating from Data Centers shall be deemed disturbing to a person,
reasonably calculated to disturb the peace and unreasonably offensive and injurious to the public,
or their property, if the sound level is:
1. 65 dBa or higher during the hours of 8 A.M. to 10 P.M. or 55 dBa or higher during the
hours of 10 P.M. to 8 A.M. (as determined by a third-party acoustic engineer) measured
at the property line of the receiving property.
2. The standard which may be considered in determining whether a violation of this
Ordinance exists includes but is not limited to the following:
a. The level or volume of the noise
b. The time of day or night the noise occurs
c. The duration of the noise
d. Whether the noise is recurrent, intermittent or constant
6
e. Whether proper and reasonable noise attenuation methods were followed and
maintained
ARTICLE 6: Violations
1. Any or all of the following persons may be held responsible for noise violations:
a. The person operating the equipment or creating the noise;
b. The person who employs the person operating the equipment or creating the noise
at the time of the violation;
c. The person who owns or rents the property where the violation occurs.
2. The following acts, and the causing thereof, are declared to be in violation of this
Ordinance:
a. The sound level emanating from the Data Center exceeds 65 dBa or higher
during the hours of 8 A.M. to 10 P.M. or 55 dBa or higher during the hours of 10
P.M. to 8 A.M. measured at the property line of the receiving property.
b. The noise attenuation measures provided in the design plan to the mayor are not
incorporated in the construction of the Data Center.
c. Any of the required sound study results are not filed with the mayor and the city
clerk within 30 days of completion of the report.
d. The building plan is not filed with the mayor and the city clerk within 30 days of
completion of the plan prior to construction.
e. Failure to act in accordance with any other provision of this Ordinance.
3. All data centers shall be in compliance with the requirements of this Ordinance before
commencing operation; failure to do so will be deemed in violation of this Ordinance and
result in an injunction and/or a stay in commencing operation.
ARTICLE 7: Penalties
(1) Any person(s), firm, corporation, partnership, association, owner, occupant, agent or
anyone having ownership in the subject property or supervision or control over the Data
Center that violates or fails to comply with any provision of this Ordinance, shall be
guilty of a misdemeanor.
(2) Upon conviction of such violation, any offending party shall be punished by fine of
$1,000 for any one specified offense or violation, or double that sum for repetition of the
offense or violation. If the act prohibited is continuous in time, the fine or penalty for
allowing the continuance thereof, in violation of this Ordinance, shall be $500 for each
day that it may unlawfully continue. If the prohibited act continues after conviction of
violation, an injunction in court of proper jurisdiction to abate the nuisance and violation
of the Ordinance may be sought and awarded.
7
(3) The city or any citizen shall be entitled to pursue all legal and equitable remedies
available under the law in order to abate the nuisance and compel compliance with this
Ordinance, including injunctive relief and any civil damages the court deems appropriate.
(4) Until the Data Center is in compliance with this Ordinance and required noise attenuation
measures are implemented and noise limitations met, the data center shall cease
operations.
ARTICLE 8: Severability
If any provision of this Ordinance is found to be invalid by the decision of any court of
competent jurisdiction, such invalidity shall not affect the remaining sections, phrases, and
provisions of this Ordinance which remain valid and enforceable.
ARTICLE 9: Emergency Clause
The City/Town of finds that the immediate implementation of this ordinance is
necessary for the preservation of the public’s peace, health, safety, welfare, and property, an
emergency is hereby declared to exist and that this Ordinance is to be in effect immediately after
its adoption.
PASSED AND APPROVED this _______day of ______, 2023.
APPROVED:_______________________
MAYOR
ATTEST:___________________________
CITY CLERK
EXHIBIT A
Section 164.27 Data Centers
(A) Purpose and Applicability. All Data Centers constructed within the City of Fayetteville shall
be designed and built to incorporate sufficient external noise attenuation measures in order to
minimize the impact of noise disturbance on residents.
(B) Definitions. For the purpose of this section, the following definitions shall apply unless the
context clearly indicates or requires a different meaning:
1. Ambient Noise: The all-encompassing noise level associated with a given environment,
being a composite of sounds from all sources, excusing the alleged offensive noise, at the
locations and approximate time at which comparison with the alleged offensive noise is
to be made.
2. Data Center shall have the same meaning as set forth in § 151.01 Definitions of the
Unified Development Code.
3. Decibel (dB) shall have the same meaning as set forth in § 96.01 Definitions of Chapter
96 Noise Control.
4. Mechanical Equipment: The networked computer systems along with supporting
equipment such as batteries, backup generators, and cooling systems housed on the Data
Center’s property.
5. Noise Attenuation: The reduction of noise levels through the use of sound-absorbing
material, architectural design techniques, and/or any other suitable means.
6. Noise Disturbance shall have the same meaning as set forth in § 96.01 Definitions of
Chapter 96 Noise Control.
7. Person: An individual, association, partnership, or corporation, including any officer,
employee, department, or agency.
8. Sound: An oscillation in pressure, particle displacement, particle velocity or other
physical parameter, in a medium with internal forces that causes compression and
rarefaction of that medium. The description of sound may include any characteristic of
such sound, including duration, intensity and frequency.
9. Sound Level: shall have the same meaning as set forth in § 96.01 Definitions of Chapter
96 Noise Control.
10. Sound Level Meter: shall have the same meaning as set forth in § 96.01 Definitions of
Chapter 96 Noise Control.
(C) Noise Attenuation Requirements. Before a Data Center has commenced construction or
operating within this jurisdiction, the property owner and operator proposing to build a Data
Center shall comply with the following:
(1) Notice Requirements. The property owner and operator must notify all residents within a
half-mile radius of the parcel, including any affiliated homeowners’ association operating
2
within the half-mile radius, that the property owner and operator intends to build and
operate a Data Center on the property. The notice required in this section must be mailed
to all property owners, residents, and homeowners’ association addresses contained
within a half-mile radius extending from the boundary of the site where the proposed
Data Center will be built. Proof of notification shall be filed with the Planning Division
within 30 days of providing notice. The property owner and operator must notify the
Mayor that the property owner and operator intend to build and operate a Data Center.
The notice must include the location for the proposed data center. This public notification
shall occur at the same time as any other notification required by Chapter 157. If no
public hearing is required, then this notification shall occur no less than thirty days prior
to the submission of the applicant’s development or business license application,
whichever occurs first.
(2) Noise Study Requirements. The property owner of the lands upon which the Data Center
is to be located shall conduct a sound study performed by a third-party acoustic engineer
to document baseline sound levels in the area of the proposed Data Center, including
noise levels measured at the boundary of the site in eight locations (north, south, east,
west, northeast, northwest, southeast, southwest.) The report of the study must include
sound mitigation recommendations based on the results of the sound study. The property
owner must provide a copy of the report of the study to the Planning Division within 30
days of completion of the report.
(3) Noise Attenuation Plan Requirements
(a) The property owner must consult with a third- party architectural or design firm to
develop a building plan that includes necessary noise attenuation measures in
order to prevent the external sound level emanating from the Data Center from
exceeding the sound level limitations contained in in Chapter 96 Noise Control
which would be considered a noise disturbance. The building plan is not required
to adopt any or all of the noise attenuation recommendations so long as the plan
includes noise attenuation measures that the City deems adequate to be in
compliance with this section. Noise attenuation measures may include but not
limited to:
(i) Soundproofing walls, screens, panels, fences, or enclosures
(ii) Buffer yards
(iii)Other noise attenuation measures recommended by the third-party acoustic
engineer or the City
(b) Mechanical equipment must be shown on any proposed plan and must be fully
screened on all sides. Mechanical equipment not screened by a facade of the
building must be screened by a visually solid fence, screen wall or panel, or
parapet wall and constructed with a design, materials, details, and treatment
compatible with those used on the nearest facade of the building.
3
(c) The property owner must provide a copy of the building plan to the City within 30
days of completion of the plan prior to construction.
(d) Any additions, changes, or expansions of the Data Center must comply with the
noise attenuation requirements of this section and must be designed and submitted
to the City within 30 days of completion of the report.
(4) Post Completion Noise Study Requirements
(a) Upon the Data Center’s completion, the Data Center operator must conduct a
post-construction noise study performed by a third-party acoustic engineer to
document noise levels emanating from the Data Center when mechanical
equipment is running at full capacity, including all HVAC units and generators
necessary for peak operation. Noise levels are to be measured at the boundary of
the site in the original eight locations used during the baseline study. The Data
Center operator must provide a copy of the report to the City within 10 days of
completion of the study.
(b) The Data Center shall not begin operations until the completion of the post-
construction noise study and submission to the City as required above. In order
for the Data Center to be in compliance, the noise study results must show that its
operation is in compliance with this section and will not adversely impact
residential neighbors. If the results show that the Data Center is not in compliance
with this section or will adversely impact residential neighbors, the Data Center
will be unable to commence operation until the required noise attenuation
measures and noise limitations are met.
(c) Furthermore, the Data Center operator must conduct annual noise studies under
the baseline and post-construction studies specifications in accordance with
subsections (a) and (b) above. The Data Center operator must provide the results
to the City within 10 days after the anniversary date of the first sound study
report.
(D) Procedure for Measurement. All tests shall be conducted according to the procedures set
forth in Chapter 96 Noise Control.
(E) Noise Limitations. It shall be unlawful for any Data Center to make, or continue to cause or
permit to be made or continued, noise levels constituting a noise disturbance. For the purposes of
this section, the external noise level emanating from Data Centers shall be deemed disturbing to
a person, reasonably calculated to disturb the peace and unreasonably offensive and injurious to
the public, or their property, if the sound level does not comply with the limits set forth in
Chapter 96 Noise Control.
(F) Violations and Penalties. Violations of the noise limitations shall be subject to the
enforcement and penalty provisions of Chapter 96 Noise Control as well as any remedies
available to the City pursuant to the Unified Development Code, state or federal law. Violations
4
of other provisions of this section shall be subject to the enforcement and penalty provisions of
the Unified Development Code.
(1) Any or all of the following persons may be held responsible for noise violations:
(a)The person operating the equipment or creating the noise;
(b)The person who employs the person operating the equipment or creating the noise
at the time of the violation;
(c)The person who owns or rents the property where the violation occurs.
(2) The following acts, and the causing thereof, are declared to be in violation of this section:
(a)The sound level emanating from the Data Center exceeds that allowed by Chapter
96 Noise Control.
(b)The noise attenuation measures provided in the design plan to the City are not
incorporated in the construction of the Data Center.
(c)Any of the required sound study results are not filed with the City within 30 days
of completion of the report.
(d)The building plan is not filed with the City within 30 days of completion of the
plan prior to construction.
(e)Failure to act in accordance with any other provision of this section.
(3) All data centers shall be in compliance with the requirements of this section before the
City will issue a certificate of occupancy; failure to do so will be deemed a violation of
this section and may result in an injunction, a stay in commencing operation, denial of
allowed occupancy, or denial or withdrawal of city utilities or services.
;orr^ 3,,
NWA
ia
RECEIVED
A WEHCO MEDIA COMPANY
SEP 14 2023
Account #: NWCL5004205
Company: CITY OF FAYETTEVILLE-CLERKS OFFI CITYTY CLERK�FICE
Ad number#: 324496
PO #:
Matter of: ORD 6678
AFFIDAVIT•STATE OF ARKANSAS
I,Carla Gardner,do solemnly swear that I am the Finance Director of the Democrat Gazette,a daily newspaper printed
and published in WASHINGTON county,State of ARKANSAS:that I was so related to this publication at and during
the publication of the annexed legal advertisement in the matter of:
ORD 6678
Pending in the court,in said County,and at the dates of the several publications of said advertisement stated below,and
that during said periods and at said dates,said newspaper was printed and had a bona fide circulation in said County,
that said newspaper had been regularly printed and published in said county,and had a bona fide circulation therein for
the period of one month before the date of the first publication of said advertisement:and that said advertisement was
published in the regular daily issues of said newspaper as stated below.
And that there is due or has been paid the Democrat Gazette for publication the sum of$290.32. (Includes
$0.00 Affidavit Charge).
NWA Democrat Gazette 09/10/23;NWA nwaonline.com 09/10/23
Finance Director
State ofARKANSAS,County of WASHINGTON,Subscribed
and sworn to before me on this 12th day of September,2023 �� ' '�"•�. CATHERINE STAGGS
17.���• ''t
ro*urr .l MY COMMISSION#12402772
, EXPIRES:February 28, 2025
���► -� ,;rK * r�' Washington County
NOTARY PUBLIC
Ordinance:6678 cil of the City of Fayetteville,
File Number 2023-957 Arkansas hereby determines
UDC ORDINANCE-DATA CEN- that if any provision of this Or-
TERS/DIGITAL ASSET MINING dinance is found to be invalid by
FACILITIES(AMENDMENT): the decision of any court of
AN ORDINANCE TO AMEND competent jurisdiction,such in-
§151.01 DEFINITIONS;§161.31 validity shall not affect the re-
DISTRICT 1-2,GENERAL INDUS- maining sections,phrases,and
TRIAL; AND §162.01 ESTAB- provisions of this Ordinance
LISHMENT/LISTING; AND TO which remain valid and enforce-
ENACT§164.27 DATA CENTERS able.
IN THE UNIFIED DEVELOPMENT Section 6:Emergency Clause.
CODE TO ADDRESS EXTERNAL That the City Council of the City
NOISE ATTENUATION OF DATA of Fayetteville,Arkansas hereby
CENTERS AND TO PREVENT determines that this ordinance
NOISE DISTURBANCES IN THE should become effective with-
CITY OF FAYETTEVILLE,AND TO out delay to address the poten-
DECLARE AN EMERGENCY tial harmful effects of noise
WHEREAS,the equipment as- disturbances emanating from
sociated with the cooling sys- data centers,which is neces-
tems and generators required to sary for the public peace as well
operate data centers generate as the health and safety of
broadband noise and low-fre- Fayetteville residents. There-
quency hums that result in fore,the City Council hereby de-
noise disturbance.Noise distur- clares an emergency exists
bance is the cause of degrada- such that this ordinance shall
tion and may produce negative become effective immediately
impacts on public health,prop- upon its passage and approval.
erty,and the environment;and PASSED and APPROVED on
WHEREAS,noise attenuation September 5,2023
should bean integral part of the Approved:
design and construction of data Lioneld Jordan,Mayor
centers in order to prevent noise Attest:
pollution and noise disturbance; Kara Paxton,
and City Clerk Treasurer
WHEREAS,the City of Fayet- This publication was paid for
teville finds that the public inter- by the City Clerk-Treasurer of
est is served by the prevention the City of Fayetteville,
of unreasonable noise emanat- Arkansas.
ing externally from the Data Amount paid:S290.32
Centers and the provisions of Sept.10,2023 324496
this Ordinance are enacted for
the purpose of preserving and
protecting the public health,
safety,welfare and property of
the residents of Fayetteville.
NOW,THEREFORE,BE IT OR-
DAINED BY THE CITY COUNCIL
OF THE CITY OF FAYETTEVILLE,
ARKANSAS:
Section 1:That the City Coun-
cil of the City of Fayetteville,
Arkansas hereby amends §
151.01 Definitions of the Unified
Development Code by enacting
the following definition:
"Data Center:A facility con-
structed and operated that is
engaged in storage,manage-
ment,processing,and transmis-
sion of digital data,including
facilities used for cryptocur-
rency mining, which houses
networked computer systems
along with supporting equip •
-
ment such as batteries,back-up
power generators, HVAC and
cooling systems.A data center
does not include a dwelling unit
used for home digital asset min-
ing as defined by Ark.Code Ann.
§14-1-501,et seq."
Section 2: That the City
Council of the City of Fayet-
teville,Arkansas hereby amends
§162.01 Establishment/Listing
in Chapter 162 Use Units of the
Unified Development Code by
enacting a new section(VV)as
follows:
ON)Unit 47.Data Centers
(1)Description.Unit 47 con-
sists of uses related to facilities
engaged in storage,manage-
ment,processing,and transmis-
sion of digital data,including
facilities used for cryptocur-
rency mining.
(2)Included Uses.
Data Centers
Section 3:That the City Coun-
cil of the City of Fayetteville,
Arkansas hereby amends §
161.31 —District 1-2,General
Industrial of the Unified Devel-
opment Code by adding Unit 47
to subsection(B)(1)Permitted
Uses.
Section 4: That the City
Council of the City of Fayet-
teville,Arkansas hereby enacts
§164.27 Data Centers in Chap-
ter 164 Supplemental Zoning
Regulations and Specialized De-
velopment Regulations of the
Unified Development Code as
shown in Exhibit A attached
hereto.
Section 5:That the City Coun-