Heated arguments made up the bulk of New Castle County’s Land Use Committee meeting Tuesday on a proposed data center regulation ordinance.
Councilmember David Carter’s draft ordinance saw significant support from his colleagues and the public as it has gone through revisions. Carter’s substitute draft submitted last month included amendments to ensure if a data center is built in the county, there is still enough energy and water to support residents.
But several Council members voiced concerns Tuesday over the ordinance’s language permitting retroactivity. That means land use applications like Starwood Digital Venture’s plan for a 6 million square-foot facility submitted before the ordinance is passed would have to follow new rules.
Councilmember Jea Street said the arguments in favor of passing the ordinance as it stands didn’t sway him.
“Why would you ask me to vote on something that we all know based upon the current code, the retroactive piece is illegal?” Street said. “When you do that, you're going to get sued and we're going to lose.”
Tuesday’s meeting did not offer Councilmembers a chance to vote; they were only able to discuss the draft and hear from residents. Public comment lasted more than two hours and followed a lengthy discussion amongst Councilmembers.
Several councilmembers shared Street’s concerns, putting the ordinance at risk of failing later this month.
Carter said he’s flexible to amending his measure again.
“Look, if it's going to get me a couple of votes, it's out of here, man, it's gone…” Carter said. “We will consider it. I've had numerous attorneys look at it. I don't think it's illegal.”
Councilmember Kevin Caneco said the concern over retroactivity is not a valid argument.
“I hear comments that it's illegal,” Caneco said. “That's just not the facts, folks. I have the case right here… The Court, the Supreme Court of Delaware, has said Pending Ordinance legislation is good law in the state of Delaware.”
The pending-ordinance doctrine allows municipalities to reject a land use application if it violates legislation currently being considered.
Councilmember Valerie George quoted state code, which says permit applications only have to follow existing standards and procedures. Several Councilmembers concurred and worried challenging that could put the county at risk of a lawsuit.
“I appreciate the ordinance,” George said. “I like the requirements. I think that holding these data centers, these hyperscale data centers to a higher standard is a wonderful thing. The only issue that I have is the retroactivity. I don't believe that retroactivity is a transparent way to govern. I don't think it's realistic for someone to see something in August and follow it until we're now in November. So I feel like if that was removed, I could confidently vote for this, but at this time, I cannot.”
Councilmember Penrose Hollins agreed.
“I think this onus is coming rushed,” Hollins said. “I'm not the only person here that has concerns about what's going on here in this audience.”
Other Councilmembers said they would like to see some of the restrictions lessened on data centers to avoid pushing business out of Delaware.
If the current ordinance draft were passed, data centers would have to be at least 1,000 feet from residential communities. That’s to ensure the noise of the center doesn’t disturb residents nearby.
Councilmember Janet Kilpatrick said she’s not convinced regulations need to be so strict.
“I believe that at least one [of the data centers' generators] that's being talked about knows that theirs will... be encased in a building,” Kilpatrick said. “... It seems to me that 1000 feet is way beyond what we might need.”
Starwood Digital Ventures consultant Jim Lamb said in an interview with Delaware Public Media their generators will only be powered one hour per month to be tested. The nearest residential community is 1,500 feet away.
Starwood’s proposed center also already complies with water use rules if Councilmembers pass Carter’s draft ordinance as it will utilize closed-loop water technology and only fill up its water facility once per year.
Carter said his end goal is not to promote or discourage data centers from setting up shop in Delaware.
One message rang true as each Councilmember delivered their opinions on the proposed ordinance – data centers are here to stay and the county needs to prepare for them.
