Require a CUP for TOD Data and Distribution centers

12385 South Readers Circle

Manakin Sabot, VA 23103

July 6, 2026

The Honorable Jonathan Christy, Chair

The Honorable Neil Spoonhower, Vice Chair

The Honorable Jonathan Lyle

The Honorable Charlie Vaughters

The Honorable Tom Winfree

Gentlemen:

The county administration recently announced it will prepare, at your direction,

amendments to Article 18: Industrial, Limited M-1and Article 19: Industrial, Limited M-2

of the Zoning Ordinance to reduce or eliminate the possibility of data centers locating

west of the designated eastern growth area.

Last August, during the creation of the TZ and TOD, I asked that Article 18,

Section 15-262: Uses and structures permitted by right (P) or by conditional use permit

(CUP) for M-1 zoned property be amended to render data and distribution center

developments subject to a CUP.

The reason: To make these developments, that require no public notification,

subject to public notice and comment.

While many positive changes were made to the TOD, the request for a CUP for

the area outside TOD West was declined.

Since you intend to amend the aforementioned articles of the Zoning Ordinance

to protect Districts 1, 2 and 3 from data center - and maybe other developments - in M-1

and M-2 areas outside the growth district, I reiterate my request of a year ago.

Obviously, the CUP requirement approved for TOD West has not deterred

interest from data center companies as evidenced by the recently disclosed TRACT

proposal.

The Zoning amendment process now underway offers the perfect opportunity to

apply uniformity and, indeed, equity for citizens residing north of TOD West by adding a

CUP process for data and distribution centers in the remainder of the TOD.

This can be achieved, despite past comments to the contrary, without the county

being successfully sued by landowners and for the following reasons:

- To prove a regulatory taking, a landowner must show that the government has

eliminated 100% of all economically beneficial or productive use of the land.

- Requiring a CUP inside the TOD does not meet this test. It is neither seizing

the property nor barring data or distribution center projects; it simply changes the

administrative path to get them approved. Even should a data or distribution center

permit be denied, the land retains its underlying base zoning allowing the owner to build

other developments as specified in Section 15-262. Thus, because substantial

economic viability remains there is no taking.

- Virginia Code Section 15.2-2307 says a property owner does not possess a

permanent property right to an existing zoning classification or overlay status, meaning

the county can amend zoning text at any time. The exception would be if a data or

distribution center developer inside the TOD achieves vested rights before the

suggested amendment is voted into law. To block the CUP requirement the data center

developer would have to prove the county issued a significant affirmative act such as

accepting a proffer or approving a site plan, or the developer incurred substantial

expenditures pursuing the project relying on that approval before the TOD was

amended.

- Under Virginia case law, local zoning amendments are presumed valid if they

are fairly debatable. For example, amending the TOD to require a CUP for data and

distribution centers can be justified by circumstances such as high cumulative noise

levels from multiple adjacent data center sites, the noise and air pollution from operation

of a distribution center, or an unanticipated strain on the local electrical grid or water

supply. The courts would see managing these localized impacts as a standard police

power, not an unconstitutional taking of private land.

- Finally, a landowner cannot sue the county for a taking simply because the text

of the TOD was amended. Such a claim is legally unripe until the owner actually

applies for a CUP and receives a final, definitive denial from the board. If the county

reviews the application and grants the CUP with standard operating conditions like

architectural screening, setbacks and sound mitigating solutions, the owner/developer

has suffered no damage.

Given your CUP requirement for TOD West and to establish equity to the other

portion of the TOD and its adjacent residents, I once again ask the board to amend the

TOD legislation to require a CUP for data and distribution centers developed within the

TOD at the same time it amends other M-1 and M-2 zoned property in districts outside

the economic growth corridor.

Respectfully,

R. Breckenridge Daughtrey ( rbreckd@gmail.com )

c: Dr. Jeremy Raley