Data Center Approval Revisions, Grandfathering Set Up For March Action By Loudoun Board

ASHBURN, VA — As the Loudoun County Board of Supervisors prepares final consideration of stricter data center guidelines, a majority endorsed a plan to hold previously-submitted data center applications to be held to current standards.

On Tuesday, the Board of Supervisors gave its first endorsement to grandfathering data center applications already under review. That means any changes to approval standards for data centers wouldn't apply to data center applications accepted for county review by Feb. 12. The motion by Vice Chair Michael Turner (D-Ashburn) noted that the grandfathering resolution would only apply to proposed data centers more than 500 feet from residential uses with no major changes to the application. County staff will present the grandfathering resolution for final action on March 18.

The board could also take final action on March 18 on amendments affecting data center approval standards. Items under consideration are a comprehensive plan amendment to change data centers to a conditional use in zones where they are a core use or complementary (by-right) use and a zoning ordinance amendment to require special exception approval for data centers in all zoning districts that they are currently allowed by right.

On Tuesday, the board also voted to include special exceptions to legislative data centers applications approved after the Dec. 13, 2023 zoning ordinance update.

"We wanted to go back and grant legislative applications that had been approved, that we had already seen, that we have discussed that are not a surprise, subsequent to the zoning ordinance rewrite," said Turner.

According to a county staff presentation, there are 20 data center applications under review that require Board of Supervisors approval, six of which were approved before the county adopted new zoning ordinance changes. The grandfathering resolution affects another 21 applications that are administrative applications, which means they currently get a staff review but not Board of Supervisors review.

The board voted 5-3-1 to endorse the Feb. 12 grandfathering, with Supervisors Juli Briskman, Laura TeKrony and Sylvia Glass opposed and Chair Phyllis Randall not present. Before the vote, supervisors debated the fairness of allowing a grandfathering resolution for proposed data centers that the county already accepted for review.

TeKrony (D-Little River District) said she didn't support a grandfathering resolution for by-right applications. She believes if applications are not vested through the law, they should be subject to Board of Supervisors review.

"The public has been asking us to improve transparency and to negotiate better standard and minimize impacts," said TeKrony. "There are 21 by-right applications that would be grandfathered with this motion. We don't have to do grandfathering. Most zoning ordinance amendments don't have grandfathering."

Briskman (D-Algonkian) said that the motion would essentially be the county saying yes to the 21 data centers. She noted the board's priority to better regulate data centers since 2021.

"Yes, we did a lot of great work on the zoning ordinance rewrite. Yes, we put some controls. Yes, we appreciate the revenue that's generated. It has been very beneficial to our county," said Briskman. "But our community is begging us. Voting no on data centers does start to stop power lines from coming through here. We do have community members concerned about the pollution. We have fatigue, just general visual fatigue from data centers."

Turner argued that the grandfathering resolution isn't an automatic yes for the applications.

"Voting yes on this ordinance means the 21 data centers will continue with the process they've entered," said Turner. "Voting no on this application simply means the same 21 applications will go through the legislative process where they may or may not be voted down."

Supervisor Matt Letourneau (R-Dulles) highlighted how the grandfathering doesn't apply to data centers proposed within 500 feet of residential areas.

"There is a simple fairness discussion around when she should actually enact these things," said Letourneau. "If an applicant or a developer has followed the rules that are in front of them at the time and filed an application to that point, it's difficult for me to say then that halfway through they have to stop and go back because we decided to change the rules."

Supervisor Kristen Umstattd (D-Leesburg) agreed about in-process applications, arguing that the grandfathering resolution is one fair decision amidst a "completely unjustified" process. Umstattd said the data center industry is "almost entirely supporting this county," a reference to the significant data center revenue.

"Making this fundamental of a change to our rules, disallowing by-right data centers where they have been allowed, I think is fundamentally unfair," said Umstattd.

Supervisor Caleb Kershner (R-Catoctin) proposed moving the grandfathering date for submitted data center applications to March 18, the action date on the zoning ordinance amendments affecting data centers. That motion failed, with only Kershner and Umstattd supporting.

"I agree with a lot of the visual impacts that are concerns. I agree with being near residential, and those things I think we have addressed in large part, so I understand in part what some of the board members are trying to do," said Kershner. "With that said, I also agree that our data center industry have been tremendous partners over the last 10 years. They are the one industry that has made us the highest per-household income in the nation and quite frankly the wealthiest tax base in the nation."

Supervisor Koran Saines (D-Sterling) proposed excluding applications in the Route 28 tax district from the grandfathering, instead requiring a Board of Supervisors review. That failed with a 4-4 vote with Turner, Kershner, Letourneau and Umstattd opposed.