New Castle County Council passed data center regulations after seven months of deliberation.
Tuesday’s meeting saw more debate, including over an hour of public comment largely supporting Councilmember David Carter’s proposal to regulate data centers.
Carter spent months working on legislation to regulate data centers. The original draft included restrictions on light and noise as well as a 1,000 foot required buffer zone between data centers and residential zones.
The ordinance passed Tuesday, which had the support of the County Land Use Department and the County Executive’s office, eases some of those restrictions after concerns from several Councilmembers, including Janet Kilpatrick, that excessive restrictions would hurt Delaware’s economy in the long run.
It also included an amendment clarifying that it only applies to data center applications made after it is enacted, exempting the Starwood Digital Ventures’ Project Washington proposal near Delaware City.
Carter said his measure addresses the fact that current county land use code is nearly 30 years old, written long before hyperscale data centers existed.
“The criteria is, if we're going to have these data centers, how can we have them do – how can we modernize and update 30 year old zoning for a new use with very major impacts so that it works?” Carter said during the discussion.
The approved version of Carter’s ordinance requires a 1,000 foot buffer between data centers and residential zones. That also applies to established day care centers and schools. Developers can build data centers within 500 feet of residential zones as long as they supply a site-specific noise study guaranteeing generated sound doesn’t exceed allowable levels.
Developers will also have to update and maintain landscaping, street trees and bufferyards “where appropriate to mask the development,” according to the written ordinance.
Data centers are also prohibited from using open-loop cooling systems, which use more water than closed-loop systems.
Starwood representatives watched last night's discussion and said they're looking forward to Project Washington's future. Starwood spokesman Jim Lamb added the meeting's attendees want the benefits that come with data centers.
"They are demanding the approval of Project Washington because it is a state-of-the-art campus, with the highest commitment to the environment and residential communities, and it will create over 3,500 jobs and provide nearly $60 million each year once completed to the County’s public schools," Lamb said.
A floor amendment seeking to “kill this legislation”
Kilpatrick remained an opponent to the ordinance at Tuesday’s meeting despite voting in favor of the motion at the end of the night. She repeatedly argued it will discourage investment in the county.
“If we don't have some stability, these people are not going to be able to go through a lender to get money, and so that means that they leave,” Kilpatrick said. “And I'm sure that there's a group of people in this room that would love to see them leave, but that's not how we build economic development.”
One day before the Council meeting, Kilpatrick filed a floor amendment to the ordinance that sought to further loosen restrictions on data centers. Several Councilmembers voiced opposition to the move, saying that should’ve been discussed at a Land Use Committee meeting.
Councilmember Kevin Caneco has long been in favor of Carter’s ordinance, even before its restrictions loosened.
“The reality of the situation is this is simply an amendment that seeks to undo and kill this legislation,” Caneco said. “And anybody who's reading this legislation understands that.”
Caneco added Kilpatrick’s worrying over a lawsuit might become a moot point.
“Can we just be honest about it, that we're probably getting sued either way we go about this?” Caneco said. “And the fact is, I view the role of government – [the] number one priority [is] the people that I represent in New Castle, in Delaware City, in Port Penn, in Odessa, is one thing – the health, safety and welfare of the citizens I represent.”
Kilpatrick withdrew her floor amendment later in the evening.
“At this point, in order to compromise, I am going to withdraw my amendment,” Kilpatrick said.
Council approved a separate floor amendment proposed by Timothy Sheldon. It clarified the regulations only apply to data center applications made after the ordinance is enacted.
“This came right from the original sponsor: ‘This shall be only applied to land use applications submitted after the dates, unless the application, by written request, if they want to do, agrees to submit the provisions of the ordinance,’” Sheldon recited.
That means Starwood Digital Ventures is not required to follow the regulations passed on Tuesday unless they choose to do so.
Attendees ask for additional regulations
Several public commenters mentioned they understood Carter had to make concessions in the ordinance to obtain enough votes to pass the ordinance. But they also asked Council to consider creative solutions to make up for the compromises.
The Sierra Club of Delaware environmental justice organizer Marissa McClinton attended in support of Carter’s ordinance. McClinton said she was disappointed in the substance the ordinance lost in order to meet Council’s approval.
“Please find innovative ways to fill the gaps that were created from a compromise that had to happen,” McClinton said. “I look forward to seeing what you come up with. I trust that you can do it. Do not fail these people.”
Carter already agreed to strike a clause permitting retroactive coverage in October, something that continued to concern Councilmembers well into Tuesday’s meeting.
“That's the boogeyman that everybody keeps throwing out,” Carter said. “That's been out of it since sub two. That's been out of it for five months. I don't know why the boogeyman keeps coming back. It ain't there.”
The ordinance passed without opposition, 12-0 with one absent.
Starwood Digital Ventures’ current hurdle is not with the county but with the state’s Department of Natural Resources and Environment Control. DNREC denied the organization request for permit was denied in February as not an allowed use under Delaware’s Coastal Zone Act.
The developer Starwood Digital Ventures has since appealed that decision.
