Board delays decision on data centers
The Board of Supervisors again delayed a decision on data centers, this time because staff failed to follow the requirements for public notification.
The board was scheduled to make a decision on a Zoning Ordinance amendment on data centers on July 30, but during the meeting, Board Chair Jeff McKay announced that due to a “staff error,” the decision will be pushed back to Sept. 10.
State legislation that took effect on July 1 changed the advertising requirements for public hearings. The board did not comply with that law when it advertised the public hearings on July 16 and July 30.
As a result, the public hearings scheduled for July 30 were deferred to Sept. 10. The public hearings held on July 16 – including the hearing on data centers – also must be held again on Sept. 10.
About 60 people testified on the data center amendment on July 16, including many people who specifically addressed the potential negative impact of a proposed data center planned for Plaza 500 in the Bren Mar Park area. Following that hearing, the board deferred a decision to the July 30 meeting.
All testimony received on July 16 will be included in the public record, McKay wrote on July 30. Members of the public will have another chance to present testimony on Sept. 10.
McKay expressed frustration about having to defer the data center decision and schedule additional hearings.
Related story: Community speaks out against Plaza 500 data center
The board is required to take that action “because of this significant clerical error,” he said. “The county executive has assured me that he commenced a complete review of the county’s public hearing advertising processes to ensure this doesn’t happen again.”
The law that took effect on July 1 requires localities to publish notices of upcoming hearings at least 28 days in advance and again seven days before a hearing.
Previously, a notice had to be published once a week for two consecutive weeks with the first notice published within 14 days of the scheduled hearing. Fairfax County’s second notice for the July 16 BoS meeting was published July 12, just four days before the July 16 hearing.
McKay’s email to the community also included a statement that is causing confusion among those who are closely watching the data center issue.
“As part of its deferral action on July 16,” McKay wrote, “the board directed that any application received after July 16 would be subject to the new regulations; that remains unchanged with this need to rehear the Zoning Ordinance amendment.”
“I assume that statement was made in haste, and in error,” said Jim Hart, a former member of the Planning Commission.
At the July 16 board hearing, Supervisor Kathy Smith (Sully) asked staff to prepare wording for her upcoming motion, Hart noted. The board never adopted any new regulations. “The current ordinance remains in effect and nothing has been properly modified for pending site plan applications in the meantime.”
“And if the advertising for the July 16 meeting failed to comply with the minimum statutory requirements, then the board could neither have amended the ordinance, nor adopted a new one,” he said. “Nor could the board have established an effective date for ‘new regulations’ which have not yet been adopted by an affirmative vote of the board, after all proper statutory compliance.”
Correcting McKay’s statement is especially critical for the proposed by-right data center at Plaza 500. Bren Mar Park residents and environmental advocates have been urging the board to impose more restrictive requirements than those recommended by the Planning Commission.
In particular, they want to see a zoning special exception required for all data center applications, which would necessitate a public hearing, especially for those adjacent to residential districts. They also want the residential setback to be expanded to 1,000 feet.
Ann Bennett of the Sierra Club Virginia Chapter called for a transparent review of how the procedural error happened.
“The delay is a disappointment because time matters,” Bennett said. “Right now, it is not clear how Virginia will meet the energy and water demands of the hundreds of data centers in the queue. The fact that we are currently under drought conditions in Fairfax County, and county heat activation plans have gone into effect, underscore the need for swift and comprehensive action.”
Board Chair Jeff McKay issued the following clarification:
“On July 16, as part of her motion to defer decision on the amendment, Supervisor Smith directed staff to provide draft language for Appendix 1 of the Zoning Ordinance for the board’s consideration related to new site pans filed after July 16.. This request was made aside from any action that the board might take related to the pending site plans that were accepted prior to July 16. Rather, it was requested in response to concerns expressed by certain citizens that any deferral could allow applicants to file new site plans that might or might not be grandfathered by the board when it acted on the amendment.”
“My comments on July 30 were not disinformation nor should they have been ‘shocking’ since they were merely an announcement consistent with what occurred on July16 saying that nothing changed about the board putting the industry and the community on notice that it was our clear direction that any site plans filed after July 16 are to be treated as applications that will be subject to the new regulations.”
“To be clear, the board has not acted on an effective date of the Ordinance nor on the issue of grandfathering pending accepted site plans. What we did do is to put applicants on notice so that they would not rush the counter with new site plans and that to do so would be at their own risk.”
Well done