A divided City Council voted Monday to hold a public hearing on whether to temporarily pause construction of data centers in Fayetteville, and then voted to continue developing an ordinance to regulate them.
The dueling votes—both 6-4—highlighted a dispute among the council that dates back to April: Should the city block construction of data centers while the council develops regulations for the controversial facilities? Or should the city forgo a data center moratorium, giving data center developers opportunity to start projects before regulations limiting them take effect?
The debate has at times turned contentious, as it did so again Monday, and has unfolded with heightened public interest, packed meetings, and protests at City Hall.
Moratorium on the Way?
The council first approved a motion by Councilmember Shaun McMillan to schedule a public hearing to consider a temporary ban on data center developments and direct staff to create a moratorium ordinance. The six councilmembers in favor: McMillan, Malik Davis, Stephon Ferguson, Lynne Greene, Antonio Jones, and Brenda McNair voted for it. The four against: Mayor Mitch Colvin, Mayor Pro Tem Derrick Thompson, D.J. Haire, and Deno Hondros.
“The public is simply demanding that we move at the speed of trust,” McMillan said. “Our authority to adopt a data center moratorium is written plainly in state law under General Statute 160D-107. We knew that on April 13. That was 190 days ago. More than 50 North Carolina communities, including Cumberland County right next door, have already used this general statute and that moratorium. So the question is no longer whether or not we can execute a moratorium, it’s when we will.”
In April, McMillan successfully lobbied the council to move forward with a moratorium. But two weeks later, the council pumped the brakes and passed a 120-day pause on considering a moratorium. The Cumberland County Board of Commissioners passed a data center moratorium, which expires in December, as it considers an ordinance.
City Council OKs Effort to Revise Data Center Ordinance
On Monday, moments after McMillan’s moratorium motion passed, Thompson made a motion to advance the city’s data center ordinance. He proposed accepting a handful of revisions recommended by Nick Tosco, an attorney and partner with Raleigh-based firm Poyner Spruill, who reviewed the city’s proposed ordinance.
“I would like to move that into a motion so we can have some protections for now,” Thompson said, though his motion only proposed revising the proposed ordinance—not enacting it.
But the council—and the public—did not receive Tosco’s recommendations ahead of the meeting, and technical problems with computer monitors in the chamber prevented councilmembers from seeing them during his presentation.
Thompson revised his motion to instead ask City Attorney Lachelle Pulliam to work with Tosco and city staff to incorporate his recommendations into the proposed ordinance and add it to the agenda for the council meeting on Monday.
The motion passed, with Colvin, Davis, Haire, Hondros, McNair, and Thompson supporting it. Ferguson, Greene, Jones, and McMillan opposed it.
McMillan called the proposal “foolish.”
“For us to make changes this morning, based on information that we just got less than two hours ago, would kind of be, in my opinion, foolish,” he said.
“What we just voted to do was to give ourselves some time to make all of these changes that are going to be tighter, more thorough with analysis, and there’s no need to rush to do anything today based on what we just voted to do together,” he added.
Colvin said the council has been considering both a moratorium and an ordinance at the same time.
“There will be two parallel tracks with the two motions, right, that you are doing both—there’s a public hearing held to hear this ordinance,” he said. “There’s a draft ordinance that we heard tonight and have been hearing for the last four or five months. That’s what was presented tonight. That’s what’s being revised. There’s always been two parallel tracks.”
In August, the council debated proposed data center regulations that generally allow data centers on land zoned for industrial use, allow some in commercial areas with permission and restrictions set by the City Council, and prohibit them from residential areas. Those that adjoin residential areas would have to take steps to mitigate noise and other negative impacts on neighbors. A 7-3 vote directed city staff to bring a revised ordinance back to the council by late October.
‘A Solid Foundation’
Andrew Mansell, a senior assistant to the city manager, presented that revised draft on Monday. It incorporated feedback gathered at public forums and from data center operators, the Fayetteville Public Works Commission (PWC), N.C. Department of Environmental Quality, and the Conservative Energy Network, he said.
“Council has been studying this for eight months now and has not done a vote yet—at all,” Mansell said. “We put together what we heard, compared to the draft category by category, which you just heard, and our read is that the draft is a solid foundation but a number of points raised by the experts and by the community can be carried into it.”
The proposed ordinance sets noise limits and facility setbacks from property lines, requires coordination with PWC and a utility impact statement that addresses power and water usage, and sets emissions and appearance standards.
Tosco recommended that the city fold data centers into its existing zoning districts to comply with state law and court decisions, treating them similar to warehouses or freight terminals. Setting specific equipment setbacks and buffer requirements for only data centers could set the city up for legal challenges, he said.
He also said state law favors free use of land and rejects blanket bans on unlisted uses—which the city’s proposed ordinance does. State law also prohibits reducing density on land and restricting permitted uses, which is called down-zoning, he said.
“Most of the regulations proposed, there is authority for it,” Tosco said. “There are some important case law and down-zoning legislation legal limitations to be aware of and so that’s why I’m suggesting, or recommending, making some adjustments or revisions to ensure that you are compliant with those.”
The council will again consider the proposed data center ordinance on Monday at 6:30 p.m. The meeting takes place at City Hall, 433 Hay St.
