The below letter was sent at 11 AM on December 11, 2023 to the following:
Chair Ann Wheeler; Supervisors Franklin, Bailey, Boddye, Angry, Weir, Lawson, Vega; Clerk of the BOCS; Senator-Elect Roem, Governor Youngkin, US Senators Kaine and Warner, and US Congresswoman Wexton.
Chap Petersen, representing the Coalition, held a press conference attended by various media at 11 AM in front of the McCoart Building.
December 11, 2023
Dear Chair Wheeler,
Attached please find a letter from Mr. Chap Petersen, on behalf of the Coalition to Protect Prince William County, in opposition to the public hearings for the rezoning applications filed by QTS Realty Trust and Compass Datacenters, namely REZ2022-00032, Digital Gateway North, REZ2022-00033, Digital Gateway South, and REZ2022-00036, Compass Datacenters Prince William County Campus, which are set to be heard by the Prince William County Board of Supervisors tomorrow, December 12, 2023 at 10:00 a.m.
Petersen letter to Wheeler Digital Gateway notification 121123
December 11, 2023
Via electronic mail
Ann Wheeler, Chair At-Large
Prince William County
Board of County Supervisors
1 County Complex Court
Woodbridge, VA 22192
chair@pwcgov.org
Re: Violation of Prince William County Ordinance Sec. 32-700.60(1)
and VA Code §15.2-2204(A)
REZ2022-00032, Digital Gateway North
REZ2022-00033, Digital Gateway South
REZ2022-00036, Compass Datacenters Prince William County Campus 1
Dear Chair Wheeler:
On Tuesday, December 12, 2023, the Prince William County Board of Supervisors (“BOCS”) is scheduled to hear the above-referenced rezoning applications filed by QTS Realty Trust and Compass Datacenters. Our firm represents the Coalition to Protect Prince William County (“the Coalition”), who oppose these applications.
It has come to the Coalition’s attention, per documents obtained through FOIA, that the County is in violation of Prince William County Ordinance Sec. 32-700.60(1) and VA Code §15.2-2204(A) as it pertains to the notice of the December 12th public hearings as follows:
- The County Did Not Properly Provide Advertisement/Notice of the Rezoning Hearings For Applications REZ2022-00032, REZ2022-00033, And REZ2022-00036.
Prince William County Ordinance Sec. 32-700.60(1) states:
Notice of a zoning map amendment or Special Use Permit shall be published once a week for two successive weeks (with not less than six days elapsing between the first and second publication) in a newspaper having general circulation in the County. Notice for both the planning commission and Board of County Supervisors may be published concurrently. Notice shall specify the time and place of the public hearing, which shall be held not less than five days nor more than 21 days after the second advertisement shall have appeared. (emphasis added)
The County’s public hearing notices for the December 12th hearing were published in The Washington Post on December 2nd, December 5th, and a third is planned for December 9th. This schedule does not comply with the requirement of the County Ordinance (or state law, see infra) as the notices were not provided six days apart and the last notice was provided a mere three (3) days prior to the scheduled hearing, which is a per se violation of the five-day notice rule. As a result, the BOCS has not given appropriate notice of the December 12th meeting as a matter of law.
- The Stricter Notification Requirements Provided in County Ordinance Sec. 32-700.60 Are Consistent with State Law, which the BOCS Failed to Meet Anyway.
In July 2023, the General Assembly amended the Code to remove the language of “not less than five days nor more than 21 days after the second advertisement appears in such newspaper” language from §15.2-2204(A). Of course, that amendment occurred after the above applications had been filed, which means that the change should not be given “retroactive” effect where substantive rights are involved. See Montgomery v. Commonwealth, 75 Va. App. 182, 189-90 (2022) (citing McCarthy v. Commonwealth, 73 Va. App. 630, 647 (2021)).
The current State Code reads that the governing body may not “adopt any plan, ordinance or amendment thereof until notice of intention to do so has been published “once a week for two consecutive weeks,” with “two successive weeks” being defined as “not less than six days elapsing before the first and second publication.” Va. Code §15.2-2204(A).
Notably, the County has not yet adopted the amendments to §15.2-2204(A) in its own ordinance; meanwhile, state law provides broad discretion to localities to establish additional notification requirements. Therefore, the stricter notice requirement set forth on Ordinance Sec. 32-700.60 complies with state law even without the referenced amendment to §15.2-2204(A).[1]
Regardless, under either version of the State Code regarding notice, the BOCS failed as there is no “six day” time gap between it “first” (December 2nd) and “second” (December 5th) notice of the December 12th public hearing under §15.2-2204.
- The County Has Not Demonstrated That It Submitted A “Correct and Timely Notice” to The Washington Post.
As we understand, the BOCS has taken the position that it submitted a “correct and timely notice” to The Washington Post and that the newspaper failed to publish the notice, which gives it a “safe harbor” under Virginia law. Again, to the extent this “safe harbor” text was added in 2023, there is no retroactive application. See supra.
Regardless, the documents provided through FOIA by the BOCS Clerk demonstrate that a draft advertisement was provided by the Washington Post on November 20th but the County never actually submitted the ad and thus the advertisement did not run on the intended scheduled dates. Specifically, the proof sheet provided by the Washington post on November 20th states “Below are the details of your saved ad. Saved ads will not run unless they are scheduled and submitted.” See Exhibit A. There is no evidence it was submitted.
VA Code §15.2-2204(A) states:
In any instance in which a locality has submitted a correct and timely notice request to such newspaper and the newspaper fails to publish the notice, or publishes the notice incorrectly, such locality shall be deemed to have met the notice requirements of this subsection so long as the notice was published in the next available edition of a newspaper having general circulation in the locality. (emphasis added)
In this instance, the County submitted a request for a quote and proof sheet but never gave the approval of the ad prior to November 30th, which made the notices untimely. Significantly, there is no confirmation by The Post of the November 30th advertisement purchase. By contrast, confirmation notices were provided by The Post on November 30th for the December 2nd, December 5th, and December 9th ads, which state: “Thank you for placing your order with us” (subject line) and “Thank you for your ad submission! This is your confirmation that your order has been submitted. Below are the details of your transaction. Please save this confirmation for your records.” See Exhibit B.[2]
- The County’s Staff Is Proposing That the Applications Be Denied.
After reviewing five submissions by the Applicants, the County’s own planning Staff are recommending denial of these rezoning applications, which carry enormous environmental risk.
In the report submitted on December 7, 2023, the Planning Staff recommended denial of these rezoning applications as (i) they are not consistent with the Comprehensive Plan, (ii) they permit data centers outside of the data center opportunity zone overlay district without seeking a waiver of the Special Use Permit application process, (iii) the plans lack building footprint and site layout as required by County Ordinances, (iv) there is a lack of proffered elevations of the buildings making it impossible to hold developers accountable, (v) there is no information provided about the proposed electrical infrastructure on the property that will serve the facilities in each land bay—i.e. transmission lines—, and (vi) there is uncertainty in a number of land use areas including inter alia viewshed impacts, target density, environmental impact, water usage, etc. Notably, the Planning Commission also recommended denial based upon these factors.
- The County Must Postpone the Public Hearings.
In order to have a legitimate vote on these projects, the BOCS must postpone the hearings and provide proper notice so that the County and the Applicant can comply with the legal notice and advertisement requirements. If the County proceeds with a hearing on December 12th, the Coalition and other civic organizations will hold the BOCS accountable for its failure to comply with County Ordinances and state law. [3]
Thank you for your attention to the above.
Very truly yours,
J. Chapman Petersen
Enclosures as stated
cc: Elena Schlossberg, Director, Coalition to Protect PWC
Karen Sheehan, Director, Coalition to Protect PWC
State Senator-Elect Danica Roehm
Congresswoman Jennifer Wexton
United States Senator Tim Kaine
United States Senator Mark Warner
Governor Glenn Youngkin
[1]Notably, Prince William County is in the process of adopting the amendments of §15.2-2204(A)and incorporating them into Prince William County Ordinance Sec. 32-700.60 but the Planning Commission’s public hearing on that issue was postponed due to its alleged failure to meet the notice requirements and, therefore, the BOCS will not be presented any amendments for approval prior to next spring The Zoning Text Amendment hearing for DPA2024-00001 was set for a hearing before the Planning Commission on December 6, 2023.
[2] The BOCS has apparently submitted an Affidavit to The Post stating that it submitted a correct and timely request. To date, the Coalition has not been provided with a copy of the signed Affidavit. Regardless, that Affidavit is not evidence when it is contradicted by contemporaneous business records.
[3] It is the County’s common practice to reschedule hearings that do not meet the notice and advertisement requirements, as documented on the Staff’s report for REZ2020-00022 dated September 27, 2021. In the case of REZ2020-00022, on June 2, 2021, the Planning Commission held a public hearing on Comprehensive Plan Amendment #CPA2020- 00011, Hunter Property. Due to an advertising error by the Applicant, the Planning Office decided to bring the application back to the Planning Commission for a Public Hearing on July 21, 2021.