Tuesday, December 19, 2023

PWDG falls short of the CPA and Zoning Ordinance


 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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