Rulings with wide-ranging implications for western Prince William County are pending after a three-judge appellate court panel heard two separate cases serving as challenges to the PW Digital Gateway data center project Tuesday in Arlington.
Attorneys on both sides made their stances known during oral argument before Virginia Court of Appeals Judges Stuart A. Raphael, Randolph A. Beales and David Bernhard in what plaintiffs' attorneys are framing as a "David vs. Goliath" impasse.
Issues of improper public notice were front and center during the hearing, casting further scrutiny over the lame-duck Prince William Board of County Supervisors' actions in November and December 2023 prior to the marathon 27-hour Digital Gateway public hearing on Dec. 12-13 of that year.
The Oak Valley Homeowners Association’s case against the Board of County Supervisors and developer-defendants Compass Datacenters and QTS was heard first, Tuesday, with each side granted 30 minutes to argue its points.
In Oak Valley Homeowners Association, Inc., et al. v. Prince William County Board of County Supervisors, et al., Prince William Circuit Court Judge Kimberly A. Irving last August declared the Digital Gateway rezoning void “ab initio,” halting the massive data center project.
"I'm very emotional about this, because what we do is stand up for the little guy," said a misty-eyed Craig Blakeley, lead counsel for the Oak Valley plaintiffs, outside the Arlington County courthouse following the hearing. "We have a practice that is focused on representing people who can't stand up for themselves ... There's six law firms on the other side; [on behalf of the plaintiffs] there's just me and Kathleen McDermott – that's it. That's who we are."
At full buildout, the Digital Gateway near Gainesville would be the largest data center corridor in the world, with over 22 million square feet of data centers spread out across over 2,100 acres in western Prince William. The project would include 37 data centers, roughly the size of 144 Walmart supercenters.
The developer-defendants were represented by 19 total attorneys, according to an official Court of Appeals scheduling order for Tuesday – seven of whom were seated in the main area facing the bench.
Mark Looney, an attorney representing Compass Datacenters, declined to comment following the hearing, citing the wealth of information available from the hearing itself.
Robert Loftin, an attorney representing GW Acquisition Co. – GWA is the parent company for QTS behind Digital Gateway North and Digital Gateway South, while the Compass property rounds out the three rezonings – led off at the outset of Tuesday's hearing as the developer-defendants were the appellants in the case.
Loftin argued that from the developers' perspective, Irving's interpretation "was not a correct application of the law" – notably with regard to the savings clause in Virginia state law, which pertains to advertisements of public hearings by local jurisdictions for pending development projects.
Loftin added the county's submission was "correct and timely" and said all the Oak Valley plaintiffs had proper notice on Nov. 10, 2023.
Raphael, meanwhile, probed Loftin on whether the current board could reenact a zoning ordinance after it was struck down, per the 2023 Virginia Supreme Court case Berry v. Fairfax County Board of Supervisors.
This, in effect, would lead to a readvertisement and a rescheduling of the Digital Gateway public hearing – a key pursuit on the plaintiffs' side.
Whereas Loftin was adamant against Irving's legal position, Blakeley was equally passionate about the county's inaction in its dealings with The Washington Post over public hearing notices.
Throughout Tuesday’s hearing, it was reiterated that the first advertisement for the Digital Gateway public hearing was originally intended to run on Nov. 28, 2023 – with the second set to follow on Dec. 5.
As that ultimately didn't happen, Raphael probed further as to whether the ad ran in the "next available edition" of The Post – being that the ads eventually ran on Dec. 2, 5 and 9.
According to Matthew Westover, an attorney representing H&H Capital Acquisitions – the parent company for Compass – the final dates for the ads satisfied the "minimum requirement" in Section 15.2-2204 of the Virginia State Code.
Blakeley disagreed, arguing against what he deemed to be a "get out of jail free" card for the Prince William Board of County Supervisors.
Raphael also probed on the issue of two emails from board clerk Andrea Madden to the county, one on Nov. 30, 2023 at 3:19 p.m. and another at 3:21 p.m. – both of which were from The Washington Post and received no confirmation or response from the county.
Blakeley cited his depositions of Washington Post employees during the initial Circuit Court hearing, which concluded the newspaper's policy was not to publish advertisements without confirmation from the local government involved.
Blakeley was equally adamant about the county, saying it "let [the ad] slip through the cracks" and that the ad could not have waited until Dec. 2.
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