The Dillon Rule Doesn’t Say What Mr. Cuddeback Implies

Kevin Cuddeback’s July 17 letter, “Front Royal’s Data Center Moratorium May Offer No Real Protection,” opens with a quip that the Town’s moratorium is “so pro-datacenter you’d almost think it was an inside job.” It’s meant to get a laugh at the Council’s expense before the legal argument even starts, but jokes carry an implication, in this case that the Council is either incompetent or in on it. Let’s look at what the letter actually proves, and what it leaves out.

Mr. Cuddeback is correct about one narrow point: a development moratorium, standing alone, sits on shaky legal ground. Bd. of Sup’rs of Fairfax Cty v. Horne, 216 Va. 113 (1975), does hold that Virginia localities need express statutory authorization to freeze land-use applications, and the General Assembly has never granted that specific power. This is not news to anyone who has actually been following this issue. Shenandoah County’s Board of Supervisors reached the same conclusion last month, citing similar authority, and declined to pursue a moratorium for exactly this reason. Frederick County didn’t propose a moratorium either for the same reason. Neither have I, for Warren County. The moratorium point is fair. It is also not the point that anyone serious about banning data centers is relying on.

That’s what makes the rest of the letter a straw man. Mr. Cuddeback spends his opening paragraphs establishing that the Dillon Rule limits what localities can do without express authorization. That’s true as far as it goes, but it leaves the reader to assume that this principle dooms Front Royal’s broader effort. It doesn’t. The Dillon Rule has two faces: it restricts localities from inventing powers the General Assembly never granted, and it affirmatively delegates the powers the General Assembly did grant. Zoning is one of the clearest examples of the second kind.

Virginia Code § 15.2-2280 states plainly that localities may “regulate, restrict, permit, prohibit, and determine” land uses within their zoning districts. That is an express grant of the power to prohibit. The same Dillon Rule that may well void an unauthorized moratorium is the source of a locality’s authority to prohibit (i.e., ban) a land use outright by ordinance. Section 15.2-2288 and its related provisions carve out specific, enumerated categories where the power of the localities to prohibit is limited: agricultural operations, home-based businesses, and a handful of others the General Assembly chose to protect by name. A locality doesn’t need the General Assembly to spell out “you may ban data centers” any more than it needs permission to ban a strip mine or a slaughterhouse. The power is general. The exceptions are what’s specific, and data centers are not among the enumerated exceptions.

Mr. Cuddeback’s letter never engages § 15.2-2280 or § 15.2-2288 at all. It builds an argument about moratoriums and borrows the Dillon Rule’s restrictive language to make that argument sound sweeping.  It omits the actual sequence of events. The Council did not simply reject a data center definition, establish a moratorium, and call it a day. It rejected a specific draft of a definition while contemporaneously instructing its Planning Commission to produce a better one, for the express purpose of using that definition to prohibit the use. That looks like a public and iterative ordinance-drafting sequence. A temporary moratorium bridging that gap is a separate legal question from whether the underlying prohibition will hold up. The practical urgency Mr. Cuddeback assigns to that gap assumes a developer is standing by ready to exploit a 40-day stall. The scenario describes a developer gaming this situation by resubmitting a rejected application under a “Technology Business” label to run out the clock. It is a fanciful hypothetical that would require several elements to be in place, which are not.

There’s a broader pattern worth naming here. Elected bodies have been warned, again and again, that some vague litigation risk should stop them from doing what the statute plainly allows. I’ve taken to calling this “Lawscare”: raising the specter of a lawsuit to dissuade action or stymie deliberation, without ever providing the public legal analysis to back it up. Front Royal’s Town Council didn’t fall for it. Neither did Warrenton last year when they banned data centers. Frederick County’s attorney recently publicized a legal memorandum addressed to the FC Board of Supervisors. That memorandum explicitly laid before the FC BOS as one of four options the removal of data centers as a permitted use in all zoning districts (via amendment of the CZO). There was no caveat about the Dillon Rule potentially impeding that action. The motion passed unanimously by the FC BOS instructed their staff to start that process.

Strip away the mocking “inside job” joke and the Dillon Rule scaffolding, and what’s left is a narrow, largely uncontested point about moratoriums, overstretched to suggest something much larger: that the Council is on shaky ground pursuing the ban. It actually demonstrated that it does know what it’s doing and rejected the Lawscare. It rejected a weak definition, asked for a better one with the intent to use it to prohibit the use of data centers once it’s defined. That’s not a Town Council flailing. That’s doing the research and owning the decision grounded in statute.

Rich Jamieson
North River District Supervisor
Warren County Board of Supervisors