The Henry County Board of Supervisors unanimously approved a revised data center ordinance Aug. 25, establishing a process and extensive requirements for any data center proposed in the county.
County Attorney George Lyle and Garrett Dillard, of the Iriswood District, emphasized that approval of the ordinance does not mean a data center has been approved for construction.
“This is approving an ordinance so that if anyone wants to request a data center, this is the process they would have to go through. To my knowledge and understanding, as of now no one has requested a data center to be built in Henry County,” Dillard said.
The Planning Commission previously held a public hearing on zoning amendments, including initial data center standards, on April 15. No public comments were offered at that meeting.
The Board of Supervisors held a public hearing July 28, when nearly 40 residents spoke against data centers and called for stricter regulations. The board declined to approve the proposed ordinance at that meeting.
Under the revised ordinance, county staff created a Data Center District, or D-C, where data centers could be constructed only with a special-use permit.
“The D-C District is not anywhere on the current zoning map, and any future location would require rezoning and a special use permit,” Lyle said.
The process would include public hearings before the Planning Commission and Board of Supervisors as part of the rezoning process. If the rezoning is approved, the property owner would then have to seek a special-use permit from the Board of Zoning Appeals, which would hold another public hearing.
If a landowner wants to develop a data center, the property first would have to be rezoned to the D-C district.
“If a landowner in Henry County wants to develop a data center he would apply for a rezoning, which means going to the Planning Commission. A public hearing before the Planning Commission, the Planning Commission would make a recommendation to the board of supervisors, and the board of supervisors would hold a public hearing and decide if they were going to rezone land in Henry County to make it a Data Center zone from whatever it was previously zoned. If the board said ‘no, we’re not going to rezone the land,’ that would be the end of the case, and there would be no additional public hearings, no additional actions, and a data center could not be constructed,” Lyle said.
If the board approves the rezoning, the landowner would have to apply for a special-use permit from the Board of Zoning Appeals, which would hold its own public hearing.
The ordinance establishes a 100-foot front setback from any street right of way. Side and rear setbacks would be 500 feet when adjoining industrial zones and 1,000 feet when adjoining nonindustrial zones.
“A maximum building height would be 75 feet from grade. Taller structures would be allowed only with a special use permit from the BZA,” Lyle said.
The ordinance also establishes extensive application requirements. Lyle said that county staff incorporated suggestions made by residents during the July 28 public hearing into the expanded requirements.
“We have a detailed project narrative identifying the applicant, owner, operator, and describing the proposed data center and location. A comprehensive site plan showing property lines, setback lines, buildings, access roads, parking, entrances, and making sure they meet all of the VDOT (Virginia Department of Transportation) requirements,” he said.
Applicants would also be required to submit a third-party water supply impact study addressing demand, cooling technology, water sources, groundwater analysis, cumulative impacts, drought modeling, recycling and release of water, wastewater treatment and storage.
An electrical infrastructure impact analysis also would be required, including demand, redundancy, impacts on existing infrastructure, necessary upgrades and documentation of utility capacity approval.
Applicants would also have to provide a photometric lighting plan meeting new lighting standards and an acoustical impact analysis by a professional engineer. The analysis would address modeled sound levels, tonal characteristics, mitigation measures and compliance with county noise ordinances.
The ordinance also requires an evaluation of emergency power technologies to identify systems with the lowest practical environmental impact, Lyle said.
Applicants would have to provide documentation of the right to use the property and a detailed decommissioning plan with required financial security.
Operational noise would be limited to 50 decibels at the exterior property line. Mechanical equipment also would be prohibited from producing a clearly audible pure tone at or beyond residentially zoned property lines.
Exterior lighting would have to be downward-directed, full-cutoff and fully shielded to minimize glare, light trespass and skyglow, with color temperatures of 3,000K or less.
Generators, cooling systems and mechanical infrastructure would have to be enclosed and screened from adjacent streets and uses.
Ground-mounted equipment would be prohibited in front yards, while refuse areas would have to be fully screened.
Principal facades would have to use differentiated surfaces and consistent architectural design to maintain community character along public roads and adjacent residential areas.
Lyle said the ordinance also places restrictions on cooling technology.
“Some other new ones, and I think this is one that was a lot of discussion — cooling technology is restricted to a closed-loop system, so evaporative cooling techniques and cooling towers are not permitted and this is an effort to greatly reduce water consumption. Decommission must begin within 12 months after permanent cessation of operations or a year of inactivity, and be completed within 24 months unless the BZA grants an extension, and the county may draw on financial assurances to complete decommissioning if the owner fails to meet the approved plan, with cost reviews at least every three years to adjust the security amount,” Lyle said.
After construction, the owner would be required to submit a post-construction acoustical study demonstrating compliance with noise standards within 90 days of full operations or another approved time. Similar verification would be required after completion of each phase.
“Annual noise testing must be conducted and submitted to the administrator by July 1 each year, and a 48-hour period to remedy any violations before operations must cease,” he said.
Lyle said an emergency response plan must be prepared in consultation with the Henry County Department of Public Safety to identify hazards, emergency contacts, access procedures, utility shutoffs, fire suppression, hazardous materials, and emergency power systems.
An emergency response plan also would be required.
Lyle said the plan must be prepared in consultation with the Henry County Department of Public Safety and identify hazards, emergency contacts, access procedures, utility shutoffs, fire suppression, hazardous materials and emergency power systems.
The plan must be updated at least every three years and after material facility modifications.
An orientation session for public safety personnel also would be required before issuance of a certificate of occupancy.
When asked by Chairman Jim Adams, of the Blackberry District, for his opinion of the ordinance, Lyle said he believes it creates a more transparent and rigorous process.
“I think it’s a more rigorous ordinance, there’s more requirements to even apply. It’s the only district that we have created that is not on the map in Henry County, which means the elected body must have two public hearings before considering rezoning, and it would have to be a rezoning before anyone could even apply to build a data center,” he said.
Lyle also said he believes the ordinance provides a fair process for landowners who want to develop a data center.
“But it’s going to require a serious commitment of resources, a serious commitment of time and expertise to be able to apply for the rezoning and to be able to apply for a special use permit and try to go forward with developing a center. I think it’s fair for landowners in Henry County, I think it’s fair to the public. There’ll be a lot of transparency and a lot of opportunity for public input,” he said.
Adams asked Lyle about the strength of requiring multiple public hearings and rezoning.
Lyle said rezoning is a legislative matter and that courts give significant deference to elected bodies when reviewing such decisions.
“On a legislative matter like rezoning, courts are going to give great deference to the elected body. The decision of the board will be given great weight,” Lyle said.
If the rezoning project is rejected, and “the developer wants to challenge that in court, I think it will be a difficult decision to overturn. It’s all fact specific; what is said at public hearings and what the board says in making their decision, but I think that when you consider rezoning, you look at things like the comp plan, the future of the county, the character of the surrounding neighborhood, the general health and welfare of the citizens near the rezoning, it’s a lot of subjective things that are considered by an elected body when they rezone land,” he said.
Vice Chairman Travis Pruitt, of the Ridgeway District, asked Lyle why the county should not consider a potential moratorium on data centers.
Lyle said he believes a moratorium could create legal risks because an elected body would need a factual basis for such a decision.
“That’s the decision that courts will overturn an elected body and say, ‘well, that’s no facts to support why they did that, there’s no good reason to support that. It doesn’t sound like a fair process to the landowners, it doesn’t sound like a fair process to people who own property in this county who might want to do a lawful activity,” he said.
While he acknowledged that data centers can have a significant impact on a locality, Lyle said he believes the ordinance provides sufficient protections while allowing landowners to pursue the development process.
“I would defend that decision if I had to go to court, but it’s not something I think is a great position to be in. I think the ordinance is enough. I think it’s fair, transparent, rigorous, I think it’s enough that we can protect the community and still allow a fair process to take place. I think a moratorium at first just sounds like something that’s harder to defend in court if someone challenges it, and it’s an expensive thing to defend,” Lyle said.
Adams said he believes county staff incorporated concerns raised during the July 28 public hearing, when hundreds of residents attended and 37 residents requested stricter regulations on data centers.
Pam Cobler, of the Reed Creek District, said she was satisfied with the changes made by staff.
“This has brought us a much better option and a much better ordinance,” Cobler said.
