December 11, 2023
Dear Chair Wheeler and Members of the Prince William
County Board of Supervisors:
We are writing in advance
of your public hearing tomorrow on the three proposed “Digital Gateway”
rezonings. At the outset, we wish to
emphasize that we strongly oppose all three proposals. Data centers are a fundamental part of the
technology infrastructure that supports the modern economy, and they have a
place in Prince William County and other localities in Virginia. However, given the enormous impacts they can
inflict on the surrounding environment and nearby communities, it is essential
that they be appropriately sited and scaled.
With its broad array of invaluable historic, cultural, and environmental
resources, the landscape immediately west and northwest of Manassas National
Battlefield Park is simply an unsuitable location for a data center and
technology complex, especially of this massive scale.
We acknowledge that some
of you may disagree, as evidenced by the Board’s adoption of the PW Digital Gateway
Comprehensive Plan Amendment (“Digital Gateway CPA”) late last year. However, we trust that you will fulfill your
collective duty to ensure that any rezoning applications proposed in this area:
(1) comply with all pertinent requirements of the Virginia Code and Prince
William County Zoning Ordinance; and (2) are reasonably consistent with the protections
and guidelines in the Digital Gateway CPA. The three proposals coming before you tomorrow
meet neither of those basic marks.
With this letter, we call
to your attention several overlooked or ignored legal requirements that
must be met before you may properly vote on these proposals. We then highlight a number of ways in which
the proposals and accompanying proffers remain inconsistent with key provisions
in the Digital Gateway CPA or would grant the applicants far too much
discretion over major development outcomes. Many of our concerns align with
County staff’s findings, and rather than ranking or repeating all the points
from the December 7 staff reports, we have primarily focused on adding or
expanding a few.
The clear take-away
message: the proposals before you are not ready for a vote. We
strongly urge you to defer further consideration until the various problems and
risks discussed below and in the staff reports are addressed.
Conflicts
with Virginia Code and Prince William County Code Requirements
The County has Violated Fundamental Public
Notice Requirements.
We
first wish to raise the concern that the County is in violation of provisions
of the Virginia Code as well as the Prince William County Code that set forth
fundamental requirements for providing public notice of proposed amendments to
zoning ordinances.
Va. Code §15.2-2204(A)
requires that notice of a governing body’s intent to adopt an amendment to the
zoning ordinance be published “once a week for two successive weeks in some
newspaper published or having general circulation in the locality, with the
first notice appearing no more than 14 days before the intended adoption.” The statute goes on to explain that “‘two
successive weeks’ means that such notice shall be published at least twice in
such newspaper, with not less than six days elapsing between the first and second
publication.”
Prince William County
Code § 32-700.60(1) prescribes the County’s public notice requirements for zoning
map amendments and incorporates the Virginia Code requirement that notice of an
amendment be published “once a week for two successive weeks (with not less
than six days elapsing between the first and second publication) in a newspaper
having general circulation in the County.”[1]
Here, the County
published its initial notice of the public hearing on the three proposed
Digital Gateway rezonings in the Washington Post on December 2. It then published the second notice in the Washington
Post on December 5. By publishing
the second notice only three days after the first, the County has clearly
violated the requirement contained in both the Virginia Code and County Code
that at least six days elapse between the two publications. As a result, the rezonings must be deferred
so that they can be readvertised in a manner that complies with these basic public
notice requirements.
Applicants have Failed to Request a Waiver
or Modification for Their Master Zoning Plans.
Staff has repeatedly made
clear to all three applicants that they are required to submit a waiver request
to the Board of Supervisors due to their refusal to provide “the location of
all buildings and other structures”[2] on their Master Zoning
Plans (“MZP”), as required by County Code sections 32-280.02, 32-700.23, and
32-700.21.[3] Section 32-404.05 of the County Code requires
that “[r]equests to waive or modify any provision of this chapter must be
submitted and justified as part of a rezoning application.”
The MZPs for all three
proposals still fail to include the location of all buildings and structures. Yet, as of the December 7 staff report, none
of the applicants had submitted a waiver request, and to the best of our
knowledge this is still the case—despite the County Code’s clear requirement,
and despite County staff’s clear instruction, to do so.[4] This conflict with the County Code must be addressed
before the Board may properly proceed to a vote on these rezonings.
Applicants Have Failed to Commit to
Developing in Strict Accordance with the Proffers.
The very first sentence
of the proffers for all three rezoning proposals violates the requirement in County
Code § 32-700.30(2) that “[e]very proffer statement shall state that the
applicant proffers that use and development of the property shall be in strict
accordance with the proffered conditions.” Both the Digital Gateway South and Digital
Gateway North proffers state that “the use and development of the Property
shall be in substantial conformance with the following [proffered]
conditions.”[5] The Compass proffers propose an even lower standard:
“the development of the Property shall be in accordance with the
following [proffered] conditions.”[6]
The County Code’s requirement
for “strict accordance” is deliberate, as lower standards such as “substantial conformance”
or mere “accordance” grant too much room for applicants to divert from
proffered commitments and can make proffer enforcement a much greater challenge
for the County. Allowing anything less
than strict accordance with the proffers just makes the already vague
commitments in many of the applicant’s proffers that much more unclear. This inconsistency between the proffers and the
County Code must be corrected before the Board proceeds to a vote on the
rezonings.
Inconsistencies with the Comprehensive
Plan, and Excessive Grants of Applicant Discretion
Key
Mitigation Features and Open Space Areas Called for in Digital Gateway CPA Remain
Highly Vulnerable to Impacts from Utilities.
All
three applicants’ failure to commit to locating utility crossings within the projects’
“Limits of Disturbance” (“LOD”) threatens the value of numerous resource
protections and mitigating features shown on the applicants’ plans. As explained in the December 7 staff reports,
this failure means that various types of utilities, including electric transmission
lines, may be constructed within the perimeter buffers, supplemental landscape
areas, protected open space, and tree preservation areas designated on the
applicants’ plans.[7] Construction within these features would
significantly undermine their ecological value and reduce their potential to
mitigate various types of impacts. The
applicants’ failure to provide any information on where electric transmission
lines would be located is particularly concerning, given that the projects
would require significant additional electric infrastructure to meet their massive
energy demand. That energy
infrastructure would have impacts on the project sites and beyond, including
nearby communities and important County, state, and federal resources.
At the Planning
Commission public hearings, the applicants and a utility representative
asserted that typical practice is to wait to plan the location of electric transmission
lines until after an applicant submits a final site plan. County staff, however, has noted that
“planning of these [transmission] corridors remains possible and highly
encouraged at the rezoning stage of development.”[8]
Given the unanswered
questions about the energy and transmission infrastructure needs of these
proposals, and the importance of the proposed buffers, landscaping, protected
spaces and tree preservation areas in mitigating those and other impacts, we
endorse County’s staff’s recommendation that the applicants depict electric transmission line corridors on the
MZPs (with a proffer reserving the ability to make slight modifications or
adjustments).[9] Without a commitment in the MZPs to some
reasonably discernible limits within which the transmission lines and other
utilities would be located, the projects’ true impacts cannot be properly
understood, and there is no assurance that the mitigation the applicants have
proposed can actually be achieved.
The
Applicants’ Open Space Commitments are
Inconsistent with the Digital Gateway CPA.
Action Strategy DGGI 1.3
in the Digital Gateway CPA sets a target of 30% natural open space (“NOS”)
being achieved over the entire CPA study area.
Natural open space is defined in the County’s zoning ordinance to
include intact natural areas such as native forests, natural creeks, streams
and lakes, and natural wetlands that are “set aside as an area to remain
undisturbed during development and in perpetuity.”[10] The “definition is
intended to exclude areas where activities have destroyed any natural habitat
in an attempt to create a man-made habitat.”[11]
As noted in the December
7 staff reports, the “Open Space” proffers[12] for all three projects still
lack any commitment to provide the 30% NOS that the CPA encourages, and the amount
of NOS the applicants have proposed in each project falls far short of that
mark.[13] Although the 30% NOS target applies to the
entire study area, each individual applicant’s failure to commit to preserving anywhere
close to 30% NOS makes it nearly impossible that the Digital Gateway CPA’s 30% NOS
target for the larger study area can be met.
The
applicants instead propose a proffer to provide a minimum of 30% “protected open
space.”[14] However, “protected open space” may
include previously disturbed areas that generally offer less ecological value
than undisturbed “natural open space,”
so the applicants’ proposal is an inadequate substitute. Moreover, even this poor substitute could
prove very difficult to enforce because compliance with the requirement is to
be determined “upon completion of the Development on the Property.”[15] The “completion of the Development” of each
of the projects is likely to be many years away and will be very difficult to
determine, given that each proposal would allow for millions of square feet of
data centers and various other uses at full buildout. One can easily foresee a situation in which
the applicants assert that their properties have additional development
potential under the approved rezonings and have therefore yet to reach
“completion,” even though the applicants may have no intent to develop them further.
The “Open Space” proffers
for all three projects clearly need further work to make them consistent with
the important natural open space goals articulated in the Digital Gateway CPA
and to ensure they would be enforceable.
The Compass Project’s Proposed
Wildlife Corridors Are Unlikely to Provide Effective Wildlife Movement.
The Compass applicant’s
proposed wildlife corridor differs significantly from the CPA’s designated route
for the Western Corridor. The CPA states
at DGGI 1.4 that applicants shall “[e]stablish and protect the wildlife
corridors identified in the Green Infrastructure map” depicted in Figure 13.[16] The route depicted in the CPA map provides a
north/south connection to high-quality forests west of Pageland Lane. The Compass applicant’s proposed corridor, by
contrast, follows an alternate route that has far less tree cover and would
direct wildlife to two additional crossings of the proposed four-lane highway along
the current Pageland Lane.[17] The
Board should expect the applicant to adhere to the direct route designated by
the CPA, rather than propose a corridor that would require animals to cross a
highway and back.
Moreover,
the Compass applicant’s proffered wildlife corridors do not meet the width
required by the CPA. The CPA’s DGGI 1.4
encourages a minimum width of 500’, but notes that 300’ will be technically
acceptable where corridors are reduced.[18] Not only does the applicant not meet the urged
500’ in most locations (as staff has pointed out[19]), but its proposed “Wildlife
Corridors” proffer explicitly states that some portions of its intended
corridor may be even narrower than 300’. In its proffer, the applicant states
that “the dimensions may be reduced [from 300’] in location(s) where the
Wildlife Corridor crosses roadways.”[20] This reduction is inconsistent with the
requirements of the Digital Gateway CPA and could significantly reduce the
quality and efficacy of the corridors.
Proposed
Proffers Granting Applicants Excessive Discretion
Proffers Grant Applicant Excessive Discretion
Regarding Reinterment of Human Remains.
The
Compass applicant’s “Reinterment of Human Remains” proffer would reserve to the
Compass applicant excessive discretion to determine where to reinter any human
remains found on the property. The proffer states that, when reinterment is
recommended, but the Applicant, County Archaeologist, Virginia Department of
Historic Resources (VDHR), and any identified descendent next-of-kin cannot
agree upon a location, then the applicant shall determine a location “in its
sole and absolute discretion.”[21] County Staff have suggested that this proffer
may violate the Virginia Code regarding descendants’ rights.[22] Notwithstanding any potential inconsistency
with the Code, we are concerned that this proffer would allow the applicant to
ignore and override the historical and archaeological expertise of the County Archaeologist
and VDHR, as well as the personal interest in the remains of next-of-kin. This
proffer needs further work.
Proffers Grant Applicant Excessive Discretion
Regarding Cooling Systems.
The identical “Data
Center Cooling” proffer[23] proposed for both the
Digital Gateway North and the Digital Gateway South projects is intended to
ensure that the applicant would utilize air or closed-loop cooling systems to
help mitigate the data centers’ impacts on local and regional water supply
resources. The November 8, 2023 staff
reports flagged problems with the ambiguity the prior version of this proffer
created by also allowing the applicant to use “other similar technology.”[24] The revised version the applicant has
included in its November 29 proffer statements simply changes the phrase “other
similar technology” to “other new, innovative technology.” This language is just as ambiguous and creates
just as significant a loophole. While we
understand the applicant’s desire for flexibility to use more efficient types
of cooling systems that may be developed in the future, this proffer needs to
be reworked to require the applicant to receive the County’s approval prior to using
something other than air or closed-loop cooling systems.
Proffers Allow Digital Gateway North and
South Applicants to Bypass
County Approval of Stormwater Management Concept Plan.
The “Stormwater
Management” proffers for both the Digital Gateway South and Digital Gateway
North projects[25]
would require the applicant to submit a Stormwater Management Concept Plan, but
the proffers limit County staff’s role to reviewing and commenting on that plan. Similar to a concerns that the December 7,
2023 staff report raises with the “Master Landscape Plan” proffers, this would leave
the County with no approval authority over the Stormwater Management Concept
Plan, allowing the applicant to completely disregard the County’s
comments.
The proffers need to be
amended to remove this loophole. The
amount of impervious surface that would result from developing these 2,000
acres and constructing over 20 million square feet of gross floor area has the
potential to disrupt over 50 years of effort to limit pollution within the
Occoquan watershed, a critical component of the regional water supply. The County must have authority to reject an
inadequate stormwater concept plan.
In closing, we reiterate our
strong opposition to these proposals and our recommendation that you defer any
further consideration of them until the serious problems and risks discussed
above and in the staff reports are addressed.
The proposals must be in compliance with all pertinent legal
requirements and be reasonably consistent with the protections and guidelines
in the Digital Gateway CPA before you consider voting, and they clearly are not
there yet.
Thank you for your
consideration of our comments.
Sincerely,
Morgan
Butler Julie
Bolthouse Ashley Studholme
Senior
Attorney Director of
Land Use Executive Director
Southern
Environmental Piedmont
Environmental Council Prince
William
Law Center Conservation Alliance
[1] Prince William County Code §
32-700.60(1) includes an additional protection requiring that the public
hearing at which the proposed amendment will be heard “shall be held not less
than five days nor more than 21 days after the second advertisement shall have
appeared.”
[2] Prince William County Code §
700.21(7).
[3] Nov. 8, 2023 Staff Report on Digital
Gateway South Rezoning Application at 33; Nov. 8, 2023 Staff Report on Digital Gateway
North Rezoning Application at 26; Nov. 8, 2023 Staff Report on Compass Datacenters
Rezoning Application at 32; Dec. 7, 2023 Staff Report on Digital Gateway South
Rezoning Application at 36; Dec. 7, 2023 Staff Report on Digital Gateway North
Rezoning Application at 28; Dec. 7, 2023 Staff Report on Compass Datacenters
Rezoning Application at 34.
[4] See, e.g., Dec. 7, 2023 Staff
Report on Digital Gateway South Rezoning Application at 36; Dec. 7, 2023 Staff Report
on Digital Gateway North Rezoning Application at 28; Dec. 7, 2023 Staff Report
on Compass Datacenters Rezoning Application at 34. See also County Code §§ 32-404.05(1).
[5] Nov. 29, 2023 Digital Gateway
South Revised Proffer Statement at 1 (emphasis added); Nov. 29, 2023 Digital
Gateway North Revised Proffer Statement at 1 (emphasis added).
[6] Nov. 28, 2023 Compass Datacenters Revised
Proffer Statement at 1 (emphasis added).
[7] See, e.g., Dec. 7, 2023 Staff Report on Digital Gateway South
Rezoning Application at 41-42, 56; Dec. 7, 2023 Staff Report on Digital Gateway
North Rezoning Application at 32-33, 45; Dec. 7, 2023 Staff Report on Compass
Datacenters Rezoning Application at 35, 38, 62.
[8] See, e.g., Dec. 7, 2023
Staff Report on Digital Gateway South Rezoning Application at 63.
[9] See, e.g., Dec. 7, 2023 Staff Report
on Digital Gateway South Rezoning Application at 64; Dec. 7, 2023 Staff Report
on Digital Gateway North Rezoning Application at 53; Dec. 7, 2023 Staff Report
on Compass Datacenters Rezoning Application at 62.
[10] Prince William County Code, § 32-100.
[11] Prince William County Code § 32-100.
[12] Nov. 29, 2023 Digital Gateway
South Revised Proffer Statement at 22, ¶
34; Nov. 29, 2023 Digital Gateway North
Revised Proffer Statement at 21, ¶
31; Nov. 28, 2023
Compass Datacenters Revised Proffer Statement at 15, ¶ 27.
[13] Dec. 7, 2023 Staff Report on Digital
Gateway South Rezoning Application at 54; Dec. 7, 2023 Staff Report on Digital
Gateway North Rezoning Application at 43; Dec. 7, 2023 Staff Report on Compass
Datacenters Rezoning Application at 53.
The staff reports also note that the project sites contain areas of
mature hardwood forest and other areas that qualify as natural open space and have
outstanding conservation value, but which the applicant has not proposed to
preserve.
[14] See e.g. Nov. 29, 2023 Digital Gateway
North Revised Proffer Statement at 23, ¶
34.a; Nov. 29, 2023
Digital Gateway North Revised Proffer Statement at 21, ¶ 31.A; Nov. 28, 2023 Compass Datacenters
Revised Proffer Statement at 16, ¶
27.A.
[15] Nov. 29, 2023 Digital Gateway
South Revised Proffer Statement at 22, ¶ 34;
Nov. 29, 2023 Digital Gateway North Revised Proffer Statement at
21, ¶ 31.A; Nov. 28, 2023 Compass Datacenters Revised
Proffer Statement at 15, ¶ 27.
[16] Comprehensive Plan Amendment at
33.
[17] Nov. 1, 2023 Compass Datacenters
Rezoning Application, Master Zoning Plan at 2.
[18] Comprehensive Plan Amendment at
33.
[19] Dec. 7, 2023 Staff Report on
Compass Datacenters Rezoning Application at 52.
[20] Nov. 28, 2023 Compass Datacenters
Revised Proffer Statement at 23, ¶ 34.
[21] Nov. 28, 2023 Compass Datacenters
Revised Proffer Statement at 9-10, ¶ 13.
[22] Dec.
7, 2023 Staff Report on Compass Datacenters Rezoning Application at 48.
[23] Nov. 29, 2023 Digital Gateway
South Revised Proffer Statement at 33, ¶ 42; Nov. 29, 2023 Digital Gateway North Revised
Proffer Statement at 32, ¶ 39.
[24] Nov. 8, 2023 Staff Report on Digital
Gateway South Rezoning Application, Attachment H (Proffer Deficiencies) at
comment 55; Nov. 8, 2023 Staff Report on Digital Gateway North Rezoning
Application, Attachment H (Proffer Deficiencies) at comment 53.
[25] Nov. 29, 2023 Digital Gateway
South Revised Proffer Statement at 32, ¶ 40.c; Nov. 29, 2023 Digital Gateway North
Revised Proffer Statement at 30, ¶ 37.c.
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