The Zoning Ordinance Draft
to Remove Data Centers

The resolution's operative text is public. It directs the Planning Commission to hold a hearing on changes “to remove data centers as a permitted and/or conditional use (§165-603.02) in certain zoning districts and to remove other references to data centers including definitions (§165-1105.05) and additional regulations for specific uses (§165-705.01).”

The word prohibit appears nowhere in it. Not in the title, not in any of its three WHEREAS clauses, not in the NOW THEREFORE. Its own recital of the July 8 action says the Board “voted unanimously to instruct staff to prepare an authorizing resolution.” The agenda caption for item 9.C says remove. The DRRC memo says remove. The attachment staff circulated is named Proposed Changes - Remove Data Centers. In the entire September 2 packet item the word appears once in this sense, in staff's own sentence, and staff put it in quotation marks: the amendment is “the recommended legal remedy to ‘prohibit’ data centers in all zoning districts.”

The memo also converts “in certain zoning districts” into “in any zoning district.” This is not summary imprecision. It is the intent record being retrofitted in restatement, and it happens in the same paragraph that accurately says “removing” for July 8, on the single word the legal theory requires. A court told to take judicial notice of the Board's actions notices the instruments, not the memo's gloss on them.

This paragraph is a party admission that defeats page 4. The County Attorney states that before July 2024 the Zoning Administrator classified data centers under “Computer programming, data processing, and other computer-related services” as a by-right use in most business and industrial districts; that the July 10, 2024 amendment “codif[ied] the interpretation”; and that a data center has been operating in Middletown under that classification for several years.

So the county's own documented experience is: unlisted data center, plus administrative classification, equals by-right approval. The deletion recreates the unlisted condition, this time with a mandatory routing clause the 2024-era ordinance did not contain. The memo's history section is the proof of concept for the risk its analysis section calls unimaginable.

That is an accurate statement of the Virginia default, and it is inapplicable, because Frederick codified a different residual rule on May 13. §165-602.01(A)(1) states this ordinance's own condition for prohibiting an unlisted use: a Zoning Administrator determination that it “is not similar to any listed use type.”

Prohibition by silence and prohibition by failed similarity scan coincide only when the scan finds nothing. Here the scan runs against a full matrix of plausible analogs, and the county has already demonstrated, in 2024, a Zoning Administrator finding one.

Fairfax County, which contains more data centers than most nations, states the routing rule in a single sentence at §4100.2: “When a proposed land use is not listed in Table 4101.1 and Table 4101.2 below and is not otherwise prohibited by law, the Zoning Administrator will determine its appropriate use category and the most similar listed use.” Read the qualifier. Absence from the table does not prohibit. Prohibition has to come from somewhere else, and where it does not, the unlisted use goes to the Zoning Administrator to be matched against the closest thing on the list. That is Frederick's §165-602.01, written plainly, by the largest planning department in the Commonwealth.

Compare an ordinance that says the thing out loud. Clarke County's §5.1.2(A): “If a proposed use does not meet the definition of any use that is listed… it is considered to be a prohibited use.” One sentence, no inference required. Frederick's §165-602.01 says the opposite kind of thing: it routes the use to a determination and prohibits only on a finding of no similarity. The memo asks readers to treat the second as if it were the first.

Leesburg's ordinance carries the same architecture and makes the consequence explicit. Its unlisted-uses clause, §9.1.4(A), provides that where a use is not listed “the Zoning Administrator shall make an interpretation regarding the use and whether it is a permitted use, special exception use, or prohibited use,” judged against criteria including intensity and hours of operation “in comparison to specifically named uses.” Unlisted routes to a determination. It does not arrive pre-prohibited. That is why Leesburg also keeps an express prohibition list, and it is why Frederick needs one.

The memo never quotes §165-602.01. In a five-page memorandum written specifically to answer a question about §165-602.01, the provision's operative sentences appear nowhere. That omission is the memo.

Gaffney supports this page's architecture, not the county's. The ordinance upheld there contained an express clause, that if “a use is not specifically permitted, it is prohibited,” and the prosecution succeeded because the Zoning Administrator formally determined the nudist club was distinct from every listed use, including the nearest candidate. That is prohibition as the output of an express default plus a distinctness determination. The fixes in §09 would build that structure. The deletion draft declines to.

Frederick's ordinance has no such express clause. Its analog, §165-601.02(D), operates only on rows that exist, and the draft deletes the row. Citing Gaffney for deletion-equals-prohibition cites a case about an ordinance that said prohibited in support of a draft that refuses to.

The county's own outside counsel made this distinction first. Describing Gaffney's referral mechanism on August 13, Lockaby wrote: “note that this is not how Frederick County's ordinance is structured, and might not be permissible under current law.”

The clause is not exotic. Prince William County's ordinance carries it today, at §32-200.03(a): the chapter “shall be deemed exclusive in nature, and only those uses specified shall be permitted in the various zoning districts. If a use is not specified in a zoning district, it shall be prohibited in that district. In the event that a use is not permitted in any zoning district, it may only be permitted after appropriate amendment to the text of this chapter.” That last sentence is the countywide prohibition mechanism, written out. Frederick's draft has no equivalent.

Vaughn holds that an inclusive ordinance's silence prohibits even a use arguably “within the contemplation of” a permitted use. But Vaughn's ordinance left the question to silence and background doctrine. Frederick's ordinance speaks: it commands the Zoning Administrator to determine whether an unlisted use falls within an existing classification and to treat it as the most similar type.

A codified instruction to perform the contemplation analysis displaces a case about ordinances that lack one. Vaughn describes the county Frederick was before May 13.

First, the canon operates on silence, and §165-602.01 eliminates the silence. Every unlisted use already has an expressly assigned fate, routed or prohibited, so there is no gap for the negative implication to fill.

Second, the county's ordinance already prohibits expressly and constantly. Every blank cell in the use matrix is a prohibition, in §165-601.02(D)'s own use of the word. The County Attorney's backyard-chicken example, given on August 26, is that mechanism working: chickens are allowed in some residential districts and “thereby prohibited in all other residential zoning districts under the theory of inclusive zoning.” No wave of unblanked-therefore-allowed claims has ever followed.

Third, the fear attacks a proposal nobody made. The ask is not a prohibited-uses list. It is the ordinance's own blank-cell method, plus a retained definition, plus an exclusivity sentence, none of which is an enumeration the canon could bite.

The natural experiment is next door. Prince William County has run an express prohibition default since 1995 (Ord. No. 95-77, September 5, 1995) in one of the densest data center markets in the world. If stating a prohibition really invited developers to argue that everything unstated is permitted, thirty-one years in that market is where the argument would have surfaced. It has not.

And the Town of Leesburg, in Loudoun County, does the exact thing the memo calls dangerous. §9.1.5(A) enumerates four uses “prohibited in all zoning districts”: abattoirs and rendering plants, vehicle auctions, automobile graveyards, and solid waste landfills. Then §9.1.5(B) answers the memo's canon directly, in the ordinance's own text: “In addition to those uses which are prohibited in all districts, other uses may be prohibited specifically or by inference in individual zoning districts.” Naming some prohibited uses does not surrender the rest. The ordinance says so, and it says so in Data Center Alley.

Clarke County does both at once. Its use tables mark prohibition affirmatively with an X — Prohibited Use in every district cell rather than leaving blanks, and its Business Park district carries an express, NAICS-coded Prohibited Uses list, all of it sitting alongside the general default in §5.1.2(A). An enumerated prohibition list and an inclusive default in the same ordinance, recodified cover to cover between 2017 and 2021. The negative implication the memo fears did not arrive.

Consider what Prince William's clause does. It names no single forbidden use. It states a general default: an unlisted use is prohibited. The ask on this page has the same shape, and the thing the memo fears has a different one. The memo's canon argument only bites an enumeration of specific prohibited uses, and nobody has proposed one.

Virginia law is also broader than the memo allows. Citing Wiley v. Hanover Cnty., 209 Va. 153, 155 (1968), the county's outside counsel noted that ordinances come in inclusive and exclusive types and that “Some ordinances utilize both forms and all three are recognized as valid classifications.” A hybrid ordinance is not inconsistent with inclusive zoning. It is one of the three recognized forms, and the memo does not cite Wiley.

No mechanism, no citation, no example. The memo offers no case in which retaining a definition or blanking a matrix row weakened any locality's enforcement of anything. The sentence is the memo's rhetorical peak and its evidentiary floor.

Against it stands an ordinance the county could have read. Prince William prohibits by express text in §32-200.03(a) and prohibits defined-but-unpermitted uses in §32-200.03(b), and its zoning enforcement authority is not known to be impaired. If the asserted consequence were real, it would be visible somewhere.

Acting on behalf of the governing body means applying what the governing body enacted, and the governing body enacted “shall determine” and “shall treat the same.” The memo's theory asks the Zoning Administrator to exercise discretion against the operative command in deference to recitals. Limited discretion is the opposite of that. It leaves the Zoning Administrator electing which enacted text to honor. A future Zoning Administrator who follows Wolfe follows the “shall.”

The draft in the Planning Commission's packet contains no recitals. Not one WHEREAS clause. PC09-02-26_OA_DataCenters.pdf is a staff memorandum followed by three sections of the ordinance with strikethrough, and nothing else. The memo's fallback describes a part of the document that is not in front of the body being asked to recommend it.

The only recitals anywhere in the record are the August 12 resolution's, and they say remove, twice. Even taken at their best, recitals are interpretive aids that activate upon ambiguity. They do not amend operative text. Against a mandatory routing command, a WHEREAS clause is a wish standing next to a rule.

The County Attorney stated the governing principle himself on August 26: “Principles of statutory construction indicate that the legislative intent behind a statute is relevant to a court's interpretation of the statute only where the statute is ambiguous.” He then described the plan: a developer would “have to argue that our zoning ordinance is ambiguous,” and would “also have to admit that the intent of the Board of Supervisors is relevant.”

That is an admission that the county is drafting for the ambiguity fight rather than eliminating it. In that fight the county inherits Virginia's canon construing ambiguous zoning restrictions in favor of free land use, plus an intent record that says “remove” in every pre-controversy document.

There is a simpler point. If the recitals genuinely make the meaning unmistakable, then codifying the one-sentence clause the county's own outside counsel drafted changes nothing and costs nothing. The refusal to spend the sentence is the tell about the confidence.

Page 2 of the same memo identifies the scenario, names the classification it happened under, and reports the operating facility it produced.

It also sits awkwardly beside the county's own outside counsel, who identified the scenario on August 13 in the very terms the memo says cannot be constructed: “If the use ‘data center’ is removed, then the question is whether it could be considered ‘similar’ to another use type under the Uses Not Provided provisions in ZO § 165-602.01.” He found it identifiable enough to draft a clause excluding it. You cannot simultaneously be unable to identify a scenario and in possession of your own counsel's draft language forestalling it.

The state high energy use facility framework attaches at a 100 MW anticipated demand. A 60 MW campus, a phased project whose first phase sits under the threshold, or the Middletown expansion receives no HEUF screening at all. A backstop with a 100 MW floor is not a backstop against the applications most likely to arrive first.

Note also what the sentence concedes. HEUF “would also be required to be considered in determining whether a proposed use meets the ‘use not provided’ definition of the ordinance.” The memo's own mechanics therefore assume the Zoning Administrator will be running §165-602.01 determinations on data center proposals. That abandons the position the County Attorney gave in writing five days earlier, on August 26, that §165-602.01 “is highly specific to unlisted uses that are ‘part of’ an existing use and would not apply to a stand-alone use such as data centers,” and it concedes the objectors' framing of how a proposal would arrive.

The framing is false at the threshold. Nothing would be “added.” The definition exists, adopted by this Board in April 2025 and readopted in the Phase I update in May 2026. The draft deletes it.

The confusion theory has a thirty-one-year natural experiment against it. Prince William County's §32-200.03(b) provides that “any use, condition, or activity defined in Part 100… which is not specifically permitted in a zoning district shall be prohibited in that district,” adopted in 1995. Defined and unlisted there means affirmatively prohibited. The memo fears a definition creates an entitlement; in Prince William a definition withholds one.

Leesburg shows the same thing from the other direction, and shows the fix already built. It keeps a Data Center row in Table 9.2, keeps use standards for it at Sec. 9.3.6.2, allows it by special exception in one district, and leaves every other cell blank, with §9.2.4 stating that a blank cell “indicates that the listed use is not allowed in the respective zoning district.” Defined, regulated, listed, and allowed almost nowhere. That is the ask on this page, running today, eleven miles from the world's largest concentration of data centers.

The under-inclusiveness point, that facilities outside the definition might claim permission, is the one legitimate observation in the section. It argues for a functional definition plus a mutual-exclusivity sentence, not for removing the fence post. It is also self-refuting alongside the memo's HEUF reliance: the General Assembly managed to draft the definition the memo calls too difficult to draft.

The sentence that answers it is already written, in the county next door. Clarke County's §5.1.2(A) reads: “If a proposed use does not meet the definition of any use that is listed in Sections 5.2, 5.3, or 5.4, it is considered to be a prohibited use. If a proposed use clearly meets the definition of a use that is listed… the use shall not be classified as any other listed use for the purposes of allowing that use in a different zoning district or as a different use type.” The first sentence is the express default Frederick lacks. The second is the anti-reclassification rule that forecloses calling a data center something else.

The memo says it “would be difficult to craft a definition that was both broad enough to encompass any kind of contemplated data center and detailed enough to allow it to be applied to a specific proposed land use.” Fairfax County crafted one. Data Center is a defined, listed use in its table, allowed only by special exception, with standards at §4102.6.A that run to full enclosure of cooling and generator equipment, screening of accessory electrical substations, a 40,000 square foot building cap in C-3 and C-4, an 80,000 square foot cap in I-2 through I-4, a 200-foot setback from any residential district line, 300 feet for ground-mounted equipment, a one-mile separation from Metro station entrances, and both pre-approval and post-construction noise studies. The difficulty the memo describes is a choice, not an obstacle.

And the memo's specific fear, that a retained definition “could be argued to indicate some intent… to allow data centers,” was solved by one sentence twelve years ago, one county to the south. Shenandoah County's Chapter 165 defines ADULT BUSINESS and then adds, inside the definition itself: “Adult businesses are distinct from and mutually exclusive of all other uses defined or referenced in this Code. Accordingly, if a use falls within the definition of an adult business, it cannot qualify as a retail store, restaurant, or other use.” Added September 23, 2014, by Ordinance No. 2014-07.

That is the entire fix, and note where it sits. Not in a recital. Not in a separate prohibition article. In the definition. The definition stops being a description the developer can argue around and becomes the instrument that forecloses the argument. Shenandoah applied it to adult businesses, among the most heavily litigated use categories in American land use law, and it has stood since 2014. The neighboring county's Chapter 165 already contains the sentence that Frederick's Chapter 165 needs.

Now read what that clause runs on. It triggers off whether a use meets the definition of a listed use. The clause depends on the definition existing. Delete the definition and the clause has nothing to test against. The memo's closing logic, that “striking any definition… further supports the application of inclusive zoning,” inverts the mechanism, and the nearest modern recodification in Virginia shows why.

Read the closing claim against §165-602.01, whose routing clause scans use types as defined in Article XI. Deleting the definition removes the entry that scan could have matched a data center to on the county's own terms, and leaves the developer's preferred matches as the candidates.

The processing-deadline points are accurate law and there is no quarrel with them.

First, the nonconforming-use paragraph confirms Middletown's vested rights and that expansion “would require approval under the CZO as amended.” That makes the sub-100 MW expansion inquiry the memo itself describes a live test case for the §165-602.01 gap the memo says cannot occur.

And whatever gets through arrives unregulated. The draft deletes §165-705.01 along with everything else, so the noise assessments, generator hour limits, 200-foot setbacks, substation disclosure, and buffer requirements adopted in April 2025 go with it. A grandfathered application, a nonconforming expansion, or a successful similarity determination would face none of them. Fairfax keeps that entire apparatus for a use it allows only by special exception. Frederick is proposing to delete the apparatus and the use together, and to call the result a prohibition.

Second, the grandfathering paragraph is not analysis. It is a pre-justification: a discretionary Board action, requiring no advertised hearing, that would exempt the pending applications from the very prohibition the memo spends four pages defending. A county confident that its deletion prohibits has no need to build the exemption machinery in the same document. Watch for it on the September 9 agenda and on every consent agenda after it.

Grandfathering is a choice, not a necessity, and the Virginia Code says so. Under Va. Code §15.2-2307(A) a landowner's rights vest against a later zoning amendment only where the owner (i) “obtains or is the beneficiary of a significant affirmative governmental act that remains in effect allowing development of a specific project,” (ii) “relies in good faith” on it, and (iii) “incurs extensive obligations or substantial expenses in diligent pursuit of the specific project” in that reliance. All three, and the first is the gate.

Subsection (C) sets out what counts as that act: approvals such as a rezoning, a special exception or use permit, a variance, accepted proffers, or an approved plat or site plan, along with an administrative determination of permissibility that is no longer appealable. An application is not on the list. Winchester Gateway holds a pending conditional use permit application, not a permit. Virginia Technology Park holds a rezoning application that drew a 10-0 recommendation of denial and on which the Board has never acted. Neither has been granted anything that starts the clock under §15.2-2307.

So grandfathering those applications would not be the county honoring a right. It would be the county conferring one, by discretionary vote, on projects the ordinance is being amended to stop. The memo says as much in its own words, that the action is appropriate where the Board “desires out of a sense of fairness” to allow review under the prior rules. Nothing in Virginia law requires it.

The county next door codified the opposite choice. Clarke County's recodified ordinance, §1.4.2, provides that applications “duly filed and determined to be complete… and… under review at the time of adoption of a text amendment to this Ordinance shall comply with the provisions of the newly-adopted amendment.” The applicant must amend the application to conform or withdraw it, and “failure to conform to the newly-adopted text amendment shall result in denial of the application by the approval authority.” A pending application is not a vested right. Whether one survives an amendment is a decision this Board will make, and it should be made in public.