Common Legal Challenges Communities Should Know
More and more communities are discovering that the growing number of data centers are not necessarily good for rural communities and small towns. People are becoming increasingly curious as to what options are available when a proposed data center project conflicts with local laws, development standards and/or the rights of neighboring property owners. Whether or not the proposed data center project ultimately is approved, the simple fact is that all proposed projects, whether a data center or any other development, must comply with local laws and all approved projects must be developed in accordance with approved plans and all applicable development standards.
Zoning. This is one of the most common legal issues raised by a data center project. Every piece of property is subject to the zoning for that property. That means how you can use the land and how buildings can be situated on the property and how tall they can be. If a data center project requires a change in the zoning for a piece of property then that must go through the proper process for rezoning. If a data center requires to be allowed as a conditional use then that must go through the proper process for a conditional use permit. Each of these has its own unique requirements.
Procedural requirements surrounding approval of a large development are another area of concern to residents and to attorneys representing opposing parties. In many cases, local ordinances and laws governing the approval process for major developments must be strictly adhered to by a city or town. Thus, for example, public hearings required by statute or local ordinance must be held; publication of notice of such hearing must be done in a particular manner; and the proper authorities (such as a city council or board of zoning appeals) must act within the scope of the authority granted to them by the approving body’s enabling statutes and local ordinances.
Transparency. Development of large projects, like data centers, are subject to the same open-meeting and public-record laws as other public governmental bodies. For example, Missouri’s Sunshine Law requires public governmental bodies to:
(1) provide public notice of meetings;
(2) make records available for public inspection and copying; and
(3) limit actions taken at closed meetings to specifically enumerated subjects. Failure to comply with these requirements may form the basis of additional claims.
A completely different set of legal concerns arise with the construction of a data center. In many instances, a data center will require significant clearing, digging, and cutting of soil and earth. This in turn can alter the normal flow of water across a property. Poor design of the stormwater system for a data center or poor erosion control can cause sediment to flow off of a neighboring property or down a street, into a river or stream, or otherwise cause environmental and physical harm to others.
Damage to property of a neighbor can also give rise to civil claims by such neighbor. Such claims are made on the basis of issues such as flooding, erosion, and the deposit of sediment on a neighbor’s land caused by the negligent construction of a data center by a data center operator. Such claims are typically decided on the basis of evidence including before and after photographs, videos, construction plans and specifications, rainfall data, property surveys, and written complaints regarding construction activities which negatively impact a neighbor’s use and enjoyment of his or her land.
The company planning a data center needs to ensure that their construction of the project will not violate any laws regulating streams and wetlands. The laws of both the state and federal government apply to these types of projects. For example, the Clean Water Act requires federal authorization for dredging or filling of “waters of the United States,” including wetlands and natural drainage channels. Whether or not a given water feature is a protected water will depend on the facts of the circumstance and the laws that apply.
Low-frequency noise can have a serious effect on people’s health and way of life, particularly when they are remote from noise sources in rural locations. A large amount of equipment is required to support a data center including air conditioning plant and other cooling systems, electrical plant, transformers, and a large number of backup generators. Many of these items operate 24/7 and can produce constant mechanical noise as well as low frequency noise that can travel long distances.
In addition, consideration must be given to the environmental impacts of the large numbers of diesel or natural gas generators, some of which may be very large, which will be required to provide emergency or back-up power. Generally, such equipment is subject to state and/or federal air quality regulations by virtue of the emissions they produce. In particular, air permits would likely be required in addition to compliance with emissions related requirements.
On the other hand, the Site Plans and technical Plans for the project approved by local officials must reflect the actual construction of the project. Differences between approved plans and actual construction of the Data Center may indicate approval of unapproved changes to the project such as addition of structures not shown on approved plans, construction of roads not shown on Site Plans, changes to grading and disturbance of soils that will affect drainage on and off the project property.
Whether tax abatements, like when a company pays little to no property taxes for fifteen to twenty years, or other incentives like free or reduced-price utilities or roads or other infrastructure, whether any such incentives were properly approved for the proposed Data Center project can be investigated by reviewing any written development agreements or other similar contracts entered into by the Developer and local government officials.
Another possible way a community may challenge a project is when the community feels that local officials have acted arbitrarily or inconsistently. For example, the laws and regulations that apply to all properties in a community may not be applied equally to all properties or to all developers. In such cases, a challenge to the actions of the local officials may be brought on the grounds that the officials have acted inconsistently with the terms and conditions of the local laws that apply to the property of the challenging party.
In evaluating a data center and determining whether or not it is appropriate for your community, it is best to evaluate the development based on specific criteria and to identify whether or not the facts of the development support your concerns. Questions to consider in evaluating a data center include: (1) Is the development properly zoned for the proposed use? (2) Were all required public hearings held? (3) Were all required permits issued prior to commencement of construction? (4) Does the development as constructed comply with the approved plans and specifications? (5) Are the stormwater controls at the development functioning properly? (6) Is there environmental damage to neighboring properties caused by sediment laden runoff? (7) Are noise standards for the development being met? (8) Are public records and meetings being held in compliance with applicable law?
Understanding what you need to show for an investigation into a data center will help you focus your efforts. Even the largest data center is not above local ordinances, state laws, and environmental regulations and the rights of neighboring property owners. If you keep records of what is happening, request public records, compare the data center to the applicable laws and work with an attorney, you will be in good shape to find out if the data center is complying with the applicable laws.
By Michael Deslongchamps
Leave a Reply