Questions abound regarding Orange County’s technology zoning district following a public comment made by one resident last week.
During the May 12 board of supervisors meeting, Sarah Regan revealed the results of a recent Freedom of Information Act (FOIA) request she had filed. She said has been impressed with the county’s resolve in the fight against Valley Link, but couldn’t figure out why that same energy wasn’t being applied to data centers.
In December, supervisors approved a new technology zoning district to accommodate high-intensity technology-based uses including data centers, technology schools or colleges and technology research and development facilities. Four uses are allowed by special use permit (SUP)–on-site power generation, a public utility facility not including utility-scale solar, a telecommunications tower and a data center. The district could be applied to any suitable property through a rezoning and sets forth larger setbacks and buffers as well as height restrictions and sign regulations. The use of public water, groundwater or potable water is prohibited.
Additional items added by the planning commission in response to public feedback were removed by supervisors including the requirement of quarterly utility usage reports and a 1,000 feet setback from an occupied residence.
In her FOIA request, Regan asked for communication between county staff regarding the technology zoning district and any non-disclosure agreements for data centers from last January to present. She received hundreds of emails and notification that two NDAs existed, but were being withheld. Those non-disclosures were released May 14 at the instance of supervisors, two days after the meeting and Regan’s public comment. In a press release, supervisors said the documents had initially been withheld on advice from interim legal counsel, but were released in their entirety at the supervisors’ request.
“The board remains committed to balancing transparency with its responsibility to protect legally exempt confidential information when appropriate,” the release said. It also reiterated previous assertions that the county has not received any applications for a data center development. The two agreements, signed by administrator Glenda Paul on behalf of the county, its affiliates and agents were for Amazon and Powerhouse Data Centers, LLC.
As for changes made to the technology zoning district, those were referenced among the county staff emails Regan received. She said county staff emailed with attorneys for data center developers giving the appearance they “had a seat at the drafting table” for the ordinance.
“It’s my opinion looking at the draft they made and the final approved draft some of their recommendations pertaining to definitions, buffers, lighting and the water services plan made it into the final approved version,” Regan said.
She said two specific provisions–the 1,000 feet setback from an occupied residence and the utility usage reports–were said to be too restrictive and trade secrets, respectively, by one of the data center attorneys. Those same provisions were removed from the final ordinance moments before being approved.
Regan said while she’s not saying anyone was “intentionally behaving inappropriately,” the appearance is not good.
“It’s time for this ordinance to reflect the will of your constituents and I don’t know anyone that wants data centers in Orange especially with what we know now that following them is transmission lines.”
Reached via email this week, District 5 Supervisor and chairman of the board Bryan Nicol reiterated the months-long process associated with creating the technology zoning district, one that included numerous planning commission and supervisor meetings, worksessions and public hearings. He said county staff guided the early process and were provided with “extensive input” from environmental organizations such as the Piedmont Environmental Council (PEC), residents, the county-hired Berkeley Group consulting firm and neighboring counties.
“This information, input, and comments on the draft ordinance and lessons learned were reviewed and considered during the process to create the Technology District,” Nicol said. “The bulk of the ordinance was formed in the early stages. The county heard from industry representatives which also helped inform the draft ordinance. It would be irresponsible to create an ordinance to regulate a particular industry without getting any input whatsoever from that industry. It was certainly proper and understandable for the board to hear from and consider all inputs during the process and on the draft ordinance.”
Nicol said the approved technology zoning ordinance contains nearly 90 restrictions and guardrails addressing residents’ concerns and the lessons learned from other counties that have made mistakes in their own ordinances. Any data center application must also obtain two SUPs–one for the data center and one for the power generation.
“These SUP requirements specifically permit the county to require conditions that provide additional restrictions and guardrails as part of the application process,” he said. “Finally, the Technology District ordinance requires public hearing on any proposed rezoning as well as on the SUPs.”
