Here is a question worth asking your planning director this week, before anything is filed and while the answer still costs you nothing.
Does our code define “data center”?
In most small municipal and county codes, the answer is no. And the consequence of that answer is larger than almost anything else on your agenda this year.
What happens when a word is missing
Zoning codes work by category. Every proposed use has to be classified as something the code already recognizes, and when a use doesn’t appear anywhere, an administrator classifies it into the nearest available bucket.
For data centers, the nearest available buckets are usually warehouse, light manufacturing, office, or public utility. Sometimes it’s a hybrid, depending on how the application is written. All of those categories are typically permitted by right in industrial districts — and in some codes, in commercial districts too.
By right means no hearing. No conditions. No discretion. A staff-level determination, a building permit, and a project.
So in a great many jurisdictions, the most consequential land-use decision of the decade has already been made — administratively, months or years before anyone in the community heard about a project, by someone doing their job correctly with the tools the code gave them.
That’s not a scandal. It’s a gap. But the gap has a market value, and applicants’ site-selection consultants know exactly what it is. A county with no definition is a faster county. Faster is worth real money on a two-year build schedule.
The fix, and why it has to happen first
Define the use in your code, and make it a conditional use in industrial districts only.
That’s it. That’s the whole action. It is the single highest-value item available to a local government in this entire field, and it is free.
Two things make it powerful. The definition itself closes the classification gap, so nobody has to guess which bucket applies. And the conditional-use designation converts a staff determination into a discretionary approval — which means a hearing, findings, and, crucially, conditions that attach to the permit and stay revocable for the life of the facility.
That last part matters more than people expect. A community benefit agreement is a contract, and contracts are hard to modify. A conditional use permit is a live instrument. Every condition you’ll want operating in year fifteen — noise limits, monitoring, testing hours, reporting — belongs in the permit, not just in the agreement.
And here’s the timing problem: this only works before an application is filed.
Once an application is in, vesting rules in most states protect it against subsequent code changes. The window is not “before the hearing” or “before the vote.” It’s before the paperwork lands. Which is frequently before you know a project exists at all.
Four things to do in the same sixty days
If you’re going to open the code anyway, do the rest of it while you’re in there. In priority order:
Adopt an NDA and sunshine policy before anyone approaches you. Something like: this jurisdiction does not sign confidentiality agreements covering information that bears on community impacts, and all project documents are published a fixed number of days before any vote. Ninety days is a working precedent. Adopting this in advance is easy. Adopting it while a developer is in the room is a negotiation you will lose.
Adopt incentive guidelines conditioning eligibility on water caps, noise standards with post-construction verification, decommissioning security, wage floors, and clawbacks. Guidelines written before anyone knows who they apply to read as neutral policy. The identical language written after an application arrives reads as targeted hostility — and is far more vulnerable in court.
Require proof of utility and grid-operator progress before a zoning application is accepted as complete. This converts state-level process into local information at zero cost, and it quietly surfaces whether an applicant is shopping three sites at once.
Audit your notice procedures. This is the unglamorous one, and it is the one that actually voids projects. A Virginia campus was approved after a twenty-seven-hour hearing with four hundred residents present, then vacated by a court — because a required newspaper notice hadn’t run with the statutory separation between publications. The courts never reached the merits. The county spent over two million dollars defending it. A long contested hearing does not cure a procedural defect; it demonstrates why the procedure mattered.
What not to lead with
A moratorium.
I understand the appeal, and I’m not going to tell you it’s never right. But in many states it’s a slow process requiring a supermajority, it protects nothing already filed, and it carries demonstrated litigation risk. One county is facing a hundred-million-dollar suit over one.
Amending the ordinance directly is usually faster, more durable, and safer. If your community is pushing for a moratorium, say this on the record early, so nobody is surprised later when the ordinance route turns out to have been the better tool.
The unglamorous truth
Most of what determines how a data center fight goes in your town is decided by documents nobody reads, adopted at meetings nobody attends, months before the fight starts.
That’s frustrating if you like drama and excellent news if you like leverage. The hearing everyone will remember is mostly theater about decisions that were made — or forfeited — much earlier.
At CommonWatts, the first thing I do in any jurisdiction isn’t outreach. It’s drawing the line: what has been filed, with whom, and on what date. Everything on the far side of that line is a conversation. Everything on the near side is a fact.
Find out which side of it you’re standing on. Then go read your code.