In Enthusiastic Agreement with Supervisor Jamieson

In his letter of July 17th, Supervisor Jamieson engages seriously with the legal framework around datacenters, invalid moratoriums, and possible valid bans. I’m grateful for the engagement. He asked for a discussion of the “prohibit” power of §15.2-2280 and, I assume, the “limited government” provisions that immediately follow. Here, I want to consolidate our agreement, complete the discussion, and note the particular challenges faced in Warren County’s Industrial Zone code.

Enthusiastic Agreement

Supervisor Jamieson and I start from the same place: Front Royal’s moratorium is legally void, and we’ve no binding “datacenter” definition yet. Better, he himself and Shenandoah County were smart enough not to try a moratorium at all. On my §15.2-2259(A)(3) approval-by-default example, he calls the scenario fanciful, but doesn’t dispute the mechanism. I’ll rate that as common ground too.

He’s even right that I didn’t address what prohibitions §15.2-2280 empowers — and fair enough, I should.

The prohibition power in §15.2-2280 is real, maybe even un-renounceable — on that, we’re of one mind. But that agreement settles less than it seems to. Even if datacenters can clearly be prohibited in a residential zone, that tells us nothing about whether the same ban survives in all zones — particularly in an industrial zone already having quarries, power plants, and freight terminals.

Fracking split Virginia’s AGs on this power: Cuccinelli in 2013 said localities could restrict where fracking happens but could not ban it outright; Herring favored universal bans in 2015. Neither opinion binds a court, but if the state’s own AGs can’t agree, that’s a reason to discuss the limits of government power.

And if §15.2-2280 is the “government” part, then the standards in §§15.2-2283 through 2286 are the limited government parts; required reading before discussion. As co-believers in conservative, limited government, we must welcome serious study of those limits.

§15.2-2280 to 2286: Requirements and Limits

First, just two sections later at §15.2-2283: zoning ordinances shall be “for the general purpose of promoting the health, safety or general welfare of the public.” Not the purpose of enacting, say, public morals, unanimous disgust, or generalized concerns. §15.2-2283 requires a specific and documented HSW finding. Acting beyond that purpose takes the locality outside its granted power — and if we don’t keep §15.2-2283 in mind, Dillon will bite once again.

Notably, aesthetics were found to be outside the scope of any land-use HSW findings in Bd. of Sup’rs. of James City Cty. v. Rowe, 216 Va. 128 (1975). Preferring the First Amendment, our state law has kept aesthetic and moral purposes limited to historic preservation and sex offender treatment. So, despite their profound validity, feelings of ugliness and amorality, if cited as motivating, would exceed §15.2-2280’s powers and likely void the prohibition.

• 15.2-2283(vii) also requires we give “reasonable consideration” to “economic development activities that provide desirable employment and enlarge the tax base.” Courts will give Town and County-wide discretion, so let’s collaborate on at least a sentence about the economics of what we’re doing.

Then, Rowe does double duty, because in its “Commercial Use Restrictions” section, it gives us what I call the “can’t ban wine if you permit vodka” rule: “a classification cannot prohibit or restrict certain uses and permit other uses where there is no valid basis [in HSW powers] for distinguishing between them.” Front Royal’s I-2 already permits — by SUP, with a public hearing — Automobile Graveyards, Hazardous Material Storage, Heavy Manufacturing, and Scrap Metal Processing. This is the point of §15.2-2282 as well, and the Town’s ban will have to survive that comparison.

For those who want the fullest picture of “the limits,” I recommend reading all of §15.2-2280 through §15.2-2286 and the cases that interpret them and hope to base a future Op Ed on them.

Warren County’s Particular Challenges

Recall the Town’s “can’t ban wine if you permit vodka” problem? Warren County’s pinch even harder.

And, equally tricky, the County has already offered ten explicit flavors of “Technology Business” — §180-28(B)(18)(a) to (j) — all of which essentially say “yes, that’s an AI datacenter.” Banning datacenters will almost surely strip vested rights, and the risk of downzoning and “taking” could fill a whole other letter from any of us.

County planners and the Board have a tough job: we already permit many heavy uses by right or SUP, and they must show that datacenters are heavier as a basis for prohibiting them. “Light” and “heavy” aren’t one measurement of noxiousness — they’re a mix of type, magnitude, duration, and direction. But that’s why there are BZAs and Circuit Courts to sort this out.

100 Megawatts and 100,000 gallons of water both take a lot of infrastructure to move, but so do 78,000 TEU worth of containers at the Inland Port or nearly a million square feet of warehousing at Family Dollar. How, without resorting to aesthetics or morality, do we say any is “heavier?”

These compare real burdens, and this deserves a real hearing. What doesn’t exist yet is a documented record of collecting metrics and making comparisons. The listing below isn’t proof that there’s no difference. It’s evidence that no one has written down, on the record, what the difference is and why it matters — before deciding that it does.

Rowe puts the County in the same bind. It is legally precarious to make a health-safety-welfare case against datacenters in a zone where, on the separate HSW dimensions, the County already permits something worse — by right or by CUP — and often we have active examples:

ELECTRIC GRID CAPACITY? Power Generation Stations — §180-28(D)(14). (Dominion, 1,329 MW, just north of Front Royal)

EMISSIONS? Coating, Painting and Refinishing Services — §180-28(D)(17). (Axalta, 7961 Winchester Road — EPA RCRA file, annual TRI toxic release reports)

EXHAUST, DIESEL? Motor Freight Terminals — §180-28(D)(11). (Virginia Inland Port)

EXHAUST, TURBINE? Power Generation Stations — §180-28(D)(14). (Dominion)

FOOTPRINT, INDOOR? Warehousing and Distribution — §180-28(B)(10). (Iron Mountain, 339,450 SF)

FOOTPRINT, OUTDOOR? Extraction/Quarry — §180-28(D)(5). (Heidelberg Materials quarry, Riverton)

NOISE, COOLING? Power Generation Stations — §180-28(D)(14). (Dominion)

NOISE, TURBINE? Power Generation Stations — §180-28(D)(14). (Dominion)

NOISE, VIBRATION? Quarry operations — §180-28(D)(5). (Heidelberg blasting operations shut down Route 522 and I-66 in 2022)

RADIATION? Plastic Products Manufacturing — §180-28(B)(3)(j), by right, no hearing. (Toray’s Front Royal plant runs an electron beam irradiation unit and molten salt bath as part of that process.)

TRAFFIC? Motor Freight Terminals and Warehousing — §180-28(D)(11) and (B)(10). (Inland Port, Iron Mountain)

WATER, CLOSED-LOOP COOLING? Yep. Dominion again.

WATER, HOGGING? Soft Drink Bottling; Laundry Operations — §180-28(B)(7); (B)(3)(k).

WATER, RUNOFF? Automobile Graveyards; Yard for Storage of Coal — §180-28(D)(1) and (D)(10).

WATER, WASTE? Food Processing and Pharmaceuticals — §180-28(D)(6) and (D)(8).

One note on the first line above: a 1,329 MW power station dwarfs any cluster of datacenters the County could zone for — on raw “size of wire,” and “closed loop cooling,” the plant wins that comparison outright. The real question isn’t which is bigger. It’s whether the grid can handle sustained industrial draw, and that’s a siting question, not a categorical one.

As long as Dominion is there, the parcels on either side will always be fiercely industrial — not a candidate for downzoning (which is how §15.2-2284 requires us to think).

Rowe requires a principled distinction — and Dillon reminds us that even unanimous revulsion isn’t enough. On what dimension of health, safety, or welfare is a datacenter worse than what the County already permits, and has anyone written that dimension down? That is the question any County ban will have to answer in circuit court. And that’s not the Lawscare that Mr. Jamieson warns against; that’s how we mark the limits of limited government.

Kevin Cuddeback
Front Royal, VA

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