Front Royal’s Data Center Moratorium May Offer No Real Protection

“The Town’s moratorium on datacenter applications is so pro-datacenter you’d almost think it was an inside job — a setup by the industry to make sure nothing can stop them.”

Shocking words to hear from a friend who practices Virginia real estate law. But upon further inspection, basically correct. Here’s why, in three steps.

First: the moratorium can’t be enforced against any land-use applicant.

Virginia localities can only do what the General Assembly has expressly authorized them to do. That’s the Dillon Rule, and our Virginia Supreme Court applied it squarely to development moratoriums fifty years ago — Bd. of Sup’rs of Fairfax Cty v. Horne, 216 Va. 113 (1975). Fairfax tried exactly this. The Court struck it down. Not because Fairfax’s concerns weren’t real. No law had given localities the power to impose a freeze.

Nothing has changed. The General Assembly still hasn’t authorized development moratoriums. Neither Warren County nor our Town Council has a power the General Assembly hasn’t given it. The moratorium is legally void. Applicants remain free to apply.

Second: even a valid moratorium or ban can’t stop what hasn’t been defined.

In Virginia, we think of ourselves as a “black letter law” state — when we don’t write it into law or contract, we can’t expect it to be enforced. Thus substantial doubt or ambiguity in restrictions on land use is resolved in favor of the free use of property — not restrictions. See, for example, Scott v. Walker, 274 Va. 209 (2007). Anything we intend to prohibit — be it datacenters or “monstrosities” — if we leave it undefined, we effectively leave it approved.

On June 22nd, speakers uniformly opposed datacenters. The Council’s moratorium and definition rejection got a standing ovation. Yet it left us with not just legal ambiguity or substantial doubt — it left our written-down zoning code in complete doubt as to what a “datacenter” is.

Every commercial applicant can still read that silence exactly the way the Virginia Supreme Court does: if they meant to stop me, they would have defined it in writing. They didn’t, so I’m applying as a Technology Business — a land use the Town’s own ordinance permits by right. Process my application.

Third: a 40-day automatic site-plan approval clock runs anyway.

Even if the moratorium is just a directive to zoning staff to “stall things with datacenter vibes” for 90 days, Virginia law gives the Town only 40 days to act on a commercial site plan after official submission, Va. Code §15.2-2259(A)(3). In fact, State law says intentionally stalling an application opens several paths to bypass the Town and seek court approval.  One of them is even automatic. All of them will rely on the law as it’s written on the day of application.

If Town staff stalls a new application even for 40 days based on undefined datacenter vibes, on Day 41, the applicant goes straight to circuit court to ask for approval.  Stall a resubmission for 30 days, and it is automatically approved.

So if you’ve previously been rejected for a crazy or ugly land use in Progress Business Park — say, nuclear waste storage, or poultry processing — resubmit your site plan during the moratorium with a cover page reading “Datacenter,” and hope the Town stalls its way to a default approval.

Worth a try, right?

Kevin Cuddeback
Front Royal,VA

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