What the Power to Prohibit Actually Requires

The only reason worth continuing this exchange with Mr. Cuddeback is to keep bringing to light whatever information each of us can find, along with the different ways of reasoning through it, for public examination. That’s preferable to the status quo alternative; legal reasoning presented to elected officials in private conversations “behind the scenes”, or in closed sessions behind closed doors. Neither of us is a lawyer, and yet between us we have found Virginia Supreme Court case law, specific Code sections, and the actual zoning history of this county. All public, all of it checkable by anyone reading along.

Before turning to the new territory opened by Mr. Cuddback’s last letter, it’s worth establishing how much ground we’ve now covered.

The moratorium was never where this issue turns, and neither of us is spending more time on it. We agree there is no binding “data center” definition yet (although coming to F/R Town Council soon). Most importantly, we agree that Virginia Code § 15.2-2280 grants localities real, affirmative authority to prohibit a land use outright — Mr. Cuddeback calls it “un-renounceable,” which is stronger language than I used myself. That settles the question my first letter was written to answer: a ban is not beyond the Town’s or County’s power.

Mr. Cuddeback’s point about Rowe is new to the discussion, so let’s have a look: even where the power to prohibit exists, a zoning classification still needs a valid basis for distinguishing the uses it prohibits from the uses it permits. He supplies the tool for making that distinction himself, in the same paragraph where he raises it: burden isn’t one measurement, it’s “a mix of type, magnitude, duration, and direction.”

Apply that framework to his own comparison list, and the picture changes. A quarry blast is loud, and then it’s over. Freight terminal traffic peaks at certain hours and clears. Even Dominion’s plant, sited and permitted under a separate state regulatory scheme built specifically for utility infrastructure, isn’t a natural comparator for a private commercial use going through ordinary local zoning. A data center’s load — the noise, the cooling demands (water), the draw on the grid — doesn’t peak and clear. It runs continuously for the life of the building. The substantial backup generation and accompanying pollution are not utility infrastructure but may run more than occasionally as the grid becomes increasingly strained. These are type-and-duration distinctions that Rowe asks a locality to identify and put on the record.

The “Technology Business” argument is where Mr. Cuddeback overstates his case. I read Warren County’s ordinance §180-28(B)(18)(a)–(j). None of the ten listed categories — hardware design and manufacture, software development, content creation, call centers, telecommunications equipment manufacturing, and so on — describes what a data center actually does, which is to house and operate server infrastructure at scale, typically for other companies’ use. The closest candidate is “internet service providers,” and even that doesn’t reasonably fit. ISPs have existed as a distinct, well-understood business category since the late 1980s — decades before “data center” became a term the general public recognizes on its own. An ISP sells a household or business a connection to the internet. A data center doesn’t sell connectivity to the public; it’s the infrastructure on which other companies’ services run. Those are different things, and the drafters of subsection (b) had no reason to be thinking about the second one. The county’s own conduct backs this up: when Rushmark sought to build a data center on industrial-zoned land in Warren County in late 2022, it didn’t rely on any existing “Technology Business” category. It asked for data centers to be added as an approved use. The BOS voted against that in January 2023, and Rushmark removed the use from its proffers. If “Technology Business” already covered data centers, none of that would have been necessary — not for Rushmark, and not for the Board. The applicant, with every incentive to find that shortcut, didn’t find it because it isn’t there.

What the Warren County BOS and Front Royal Town Council actually have to do, then, isn’t invent a distinction; it’s document one that’s already there. Health, safety, and welfare (HSW) review isn’t limited to whether a use is dangerous in the abstract; it asks whether a use, at the scale and duration proposed, imposes burdens the community hasn’t already accepted elsewhere. Data centers raise real, substantial concerns on that front: sustained draw on regional electric capacity as multiple large facilities compound rather than cycle; water consumption for cooling in a valley where groundwater and karst geology already make water availability a grave public concern; round-the-clock mechanical noise rather than the intermittent noise of blasting or freight traffic; and diesel backup generators that run for testing and outages alike, with their own emissions profile. None of that is an aesthetic objection dressed up as policy. It’s the kind of specific, factual basis that Rowe and the “fairly debatable” standard actually ask a locality to put on paper. Not proof beyond dispute, but a genuine account of why this use, at this scale, is different from what the industrial zone already tolerates.

It’s also worth taking a look at how demanding Rowe actually is in practice. Virginia courts don’t require a locality to prove beyond a doubt that a prohibited use is worse than every existing permitted one. The rule runs the other way: a zoning decision starts out presumed valid. The challenger has to come forward with evidence of unreasonableness first. Only then does the locality have to answer back — and even then, it only needs “some evidence of reasonableness,” enough to make the question “fairly debatable.” That standard comes from Board of Supervisors of Fairfax County v. Carper, 200 Va. 653, 660 (1959), which states it as a single, unbroken rule: the court will not substitute its judgment for that of a legislative body, and if the reasonableness of a zoning ordinance is fairly debatable, it must be sustained. The “some evidence of reasonableness” formulation was sharpened in Board of Supervisors of Fairfax County v. Snell Construction Corp., 214 Va. 655, 659 (1974), and the whole standard was reaffirmed as recently as Turner v. Board of County Supervisors of Prince William County, 263 Va. 283 (2002) — a case where the Virginia Supreme Court actually struck down a county’s zoning ordinance because the county failed to meet that burden. That last case is worth noting because it shows that the standard isn’t a rubber stamp for localities. Courts have applied it to invalidate ordinances, too, when the locality didn’t do the work. Defining the reasoning is real work, but it’s not the high bar Mr. Cuddeback’s letter suggests.

That work is no longer hypothetical. On July 29, Front Royal’s Planning Commission voted unanimously to recommend both a definition of “data center” and prohibition language to the Council. A definition built on energy thresholds, infrastructure, and floor area, that draws exactly the line this letter has been describing: a data center is not a technology business, and the prospective ordinance the F/R Town Council will now take up says that. The prohibition would apply specifically in the industrial and mixed-campus-development zones, which is precisely where Rowe asks a locality to do its comparative work. The Warren County BOS is a pace or two behind the Town in this process, and is my hope that my colleagues on the BOS will do their own research to assess for themselves whether Warren County can indeed ban data centers if they deem it in the best interest of health, safety, and welfare of the county to do so.

Rich Jamieson
North River District Supervisor
Warren County Board of Supervisors

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