Lawyers and Clifton Twp. residents took turns Tuesday asking experts if the township’s zoning ordinance excludes data centers.
“They're claiming that the zoning ordinance does not provide for this particular type of use,” said Attorney Tom Nanovic, representing the Clifton Twp. zoning board.
Tuesday’s hearing was a continuation of a substantive validity challenge brought against the township in April by Doylestown-based developer 1778 Rich Pike LLC. The company wants to build a large data center campus with up to 30 buildings on around seven properties between Clifton and Covington townships along Route 380 in Lackawanna County. The area is mostly zoned residential.
Many residents from both townships and the North Pocono area in general are fervently opposed to the development, which could border many residential properties. "No Data Center" yard signs are popping up all over the area and some residents have hired lawyers to represent them.
Hearing continued again
The hearing started July 30 but was continued at the request of Attorney Matthew McHugh, from Klehr Harrison Harvey Branzburg LLP in Philadelphia. He represents the developer.
McHugh and the township’s solicitor, Geoffrey Worthington, had hoped an agreement would be reached by the end of August, but it was not.
The hearing was again continued — until Sept. 30 at 7 p.m. in the Gouldsboro Fire Department, 490 Main St., Gouldsboro.
Witnesses called to testify
Pennsylvania’s Municipal Code (MPC) gives municipalities the authority to create zoning ordinances that guide development and promote public health, safety and general welfare. Under the MPC, municipalities have to provide for all legal land uses within its boundaries and cannot exclude particular land uses.
McHugh’s goal is to prove that the township’s zoning law before April 17 excluded data centers.
That's because on May 22, Clifton supervisors amended the township's zoning ordinance to “establish a process and standards for the establishment, construction and operations of data centers,” according to a public notice.
McHugh called Ron Donati, the township’s zoning officer, as his first witness.
“You are responsible to literally interpret and enforce the terms of the zoning ordinance,” questioned McHugh.
Donati answered “yes.”
McHugh asked Donati if the ordinance in April included any terminology about data centers.
Donati said no.
He then asked what the process is if someone comes in with a new use request, like a data center.
"They fill out the application, and I would refer to the zoning hearing board,” he said.
Resident Gretchen Bentler was granted party status in July. Her property is directly next to the area where the data center could be built.
She pointed out that the zoning ordinance includes a note that gives property owners the opportunity to ask the zoning hearing board to change zoning.
“If it's not listed as the data center, the data center accessories, the individual who owns the property that's wanting to build something has the opportunity to go before the board and pursue to have this built, to have this use within this zone,” she asked Donati.
“Correct,” he answered.
1778 Rich Pike LLC has sale agreements with at least seven property owners in both townships.
Are data centers essential?
McHugh’s second witness was Erik Hetzel, who was hired at $150 an hour by the developer to review the township’s zoning code. Hetzel is a professional land planner who owns EH Creative Services in Chester County. When questioned about his fee to the developer, he said he has spent about 10 to 12 hours reviewing the zoning ordinance.
Resident Andrew Danchuck questioned Hetzel about his qualifications to be an expert witness. He asked Hetzel how many data center projects he has consulted on.
“Five or six I’ve performed analysis on,” he said.
Danchuck asked him how long he’s provided analysis and in what part of the state. Hetzel said he’s been working on the projects for about a year and that they are mostly in the Lehigh Valley.
McHugh then asked Hetzel for his opinion on whether or not data centers are essential.
“They are in today's economy, yes,” he said. “Every aspect of business uses cloud-based computing, to some extent, just about everyone, especially when it comes to critical uses, like medical uses, financial, business, just to name a few.”
Attorney Anthony Maras, who also represents 1778 Rich Pike LLC, said in July that the developer chose the area because of its closeness to power generation and long-haul fiber for internet, which is already located near Route 380.
Hetzel testified that centers “be located in close proximity to either power generation or power transmission facilities so that they can avail themselves of the requirements of such power consumption.”
Industrial vs. residential
McHugh and Hetzel went back and forth on the nuances of Clifton’s zoning ordinance.
“In your opinion, if a data center development, as defined in the addendum, were subject to a special exception process … would it meet the standards for special exception approval?” McHugh asked Hetzel.
He replied: “I don’t believe it would.” Later saying, “because the standards and the ordinance don't match the functional characteristics of a data center.”
Special exceptions and conditional uses are usually reserved for those land uses that will have a significant impact on the zoning district or the whole community, according to the Pennsylvania Department of Economic Development.
In cross examination, Worthington asked Hetzel if he based his analysis and report on the assumption that this property was located in Clifton’s industrial district.
“I did, yes,” he said.
Worthington then asked if he would be surprised to know that a substantial portion of property is actually zoned residential and if he ignored that fact in his analysis.
“No, I just figured that it could be developed on the industrial portion of the property,” he replied.
The developer wants to rezone three properties in Clifton.
“Is any part of your analysis based on the assumption that residential land will be rezoned for this particular project?” Worthington asked.
“It did not go to that level,” Hetzel said.
Bentler asked Hetzel about the land planning side of development. She asked him what the long-term impacts on the land are from data centers.
“Like any other development, you put development in, it could be removed, it could be changed, it could be adaptively reused, similar to industrial, commercial, residential, anything else,” he said.
She repeated his statement that data centers are a new development.
“So it would be safe to say … that we wouldn't know the long term effects that would happen on the land,” she then asked.
“I guess you could say that, yes, but I would say … industrial legacy is still present in this part of the state, from going back to times of coal or other industrial applications, development has impacts, of course,” Hetzel replied.
McHugh lastly made the point that while data centers are new to Northeast Pennsylvania, they are not new to the country.
McHugh has 100 days to prove his case. He said he plans to provide an architect as his expert witness when the hearing resumes.
