Documents outline process that led to data center zoning amendment

By Peter Cary/Piedmont Journalism Foundation

Jul 26, 2022 Updated Jul 27, 2022

Amazon Web Services, Inc. purchased 42 acres (highlighted in red) in Warrenton Sept. 21, 2021. The company hopes to build a data center on the property.

New information obtained through public record requests sheds more light on the process by which a zoning text amendment concerning data centers was initiated by the Warrenton Town Council in April 2021 and passed unanimously in August 2021 after public hearings.

By approving the amendment, the council gave itself the option of considering applications to build data centers on industrial-zoned properties on a case-by-case basis. The text amendment does not allow data centers by-right, and the process to obtain a special-use permit includes a public-hearing requirement.

The first test of the approval began when Amazon Web Services applied in April of this year to build a data center on Blackwell Road behind Country Chevrolet. The matter is scheduled to be discussed at a July 26 planning commission meeting (after press time).

Information from town documents obtained via public record requests by the Piedmont Journalism Foundation and the Piedmont Environmental Council — and from meeting records and interviews with town officials — provide a limited view into what happened behind the scenes that paved the way for Amazon to file its application. (PJF board member Mark Ohrstrom also sits on the board of the PEC; PEC board co-chair Jean Perin is listed as a “benefactor” of the PJF, which owns the Fauquier Times.)

The documents also raised questions in the eyes of two public officials about how the process unfolded. In particular, they wonder why Amazon was allowed to have input into what had been labeled a “town council-initiated” zoning amendment.

“Had I known what I know today, I would not have voted for that amendment,” said Town Councilman William Semple (Ward 2), after reviewing information from public records.

Warrenton staff members were contacted Feb. 24, 2021, by the office of John Foote, a land-use attorney, advising them that he had a client interested in locating a data center in town. (The staff learned later the client was Amazon Web Services.) Shortly thereafter, the email contacts between Foote and the town dropped off for two months, but resumed in late April.

Town staffers did not officially notify the planning commission or council until Foote appeared before the planning commission on June 15, 2021, that Amazon was looking to locate in town and was interested in a specific site.

When Foote’s office first contacted the town about a potential data center, Economic Development Director Rob Walton reported back that the client was looking at the former wire factory on Falmouth Street, according to town emails. Amazon ultimately dropped its interest in that site due to fiber-optic deficiencies.

On April 13, 2021, the town council voted unanimously to begin the process of amending the zoning code to allow data centers on a case-by-case basis. At the meeting, Semple asked, “is there something that is inspiring us to move ahead?”

Town Manager Brandie Schaeffer replied this was a continuation of the council’s look at data centers from back in 2017, which later stalled during the pandemic. She said, “We get inquiries almost every couple of months about a possible data center location” and that this was just to start a staff study. Schaeffer did not mention a specific data company or town site; at that point, Foote had not been communicating with the town for about two months.

The town council voted unanimously to have staff draft a zoning text amendment.

During April and May of 2021, staff worked to write the draft zoning amendment that would allow the council to consider data center applications.

According to Foote on June 15, he gave suggestions to the town staff on the language of the amendment. “We have worked with [economic development director Rob] Walton on text, we have given him suggestions,” Foote said.

There is no indication of what influence, if any, Foote’s suggestions had on the final text.

Neither then-town manager Schaeffer, who resigned earlier this month, nor economic development director Rob Walton, nor Foote responded to questions posed to them for this story. Semple agreed to be interviewed, but later Mayor Carter Nevill sent an email to council members saying that non-disclosure agreements that some officials had signed so they could meet with Amazon in July 2021, could preclude talking to the press.

On April 21, 2021, as the staff worked on the data center text amendment, Foote emailed Schaeffer to say he had a “possible draft” in hand and that his client would like to do a Zoom call with her and staff. The emails do not indicate whether the Zoom meeting took place, nor when the staff learned Foote’s client was Amazon.

Schaeffer, who was out of the county, replied. “We dropped an initiation on the consent [agenda] last month,” she wrote, so staff was now working on the text amendment at the direction of council. “Any research or sample codes are welcome.”

This launched a flurry of emails between mainly Foote and Walton, with Walton accepting “any data or recommendations” and Foote asking to look at the town’s text.

On May 25, 2021, Jessica Pfeiffer in Foote’s office emailed the staff asking, “Is there any further coordination needed on the language?” She emailed later the same day, asking “Do you have draft language?” The planning commission met later that evening in a work session.

At that work session, the commission was asked to consider the zoning amendment recently initiated by the council. Commissioner James Lawrence asked why, noting there was “not an applicant seeking approval.” The town’s planning manager told him the “question [of data centers] comes up often, and council would like to be able to provide answers.”

The planning commission took up the amendment at its next regular session on June 15. Foote, who was introduced as “the applicant,” stood before the seven members of the Warrenton Planning Commission. He told them he had a client that had secured a contract on the Weissberg property at Blackwell Road and Lee Highway, and wanted to build a data center there. The client was Amazon Web Services.

For the planning commissioners, this was a surprise. They thought they were taking up a zoning amendment that would allow data centers in the town’s industrial zone. They hadn’t known there was a potential applicant to build one. The planning commission tabled a decision for 30 days.

Two days later, an Amazon official texted Walton, asking for a meeting to discuss the text amendment. “Time is of the essence,” she wrote.

On June 29 Walton sent an email to the entire planning commission: “Amazon will be reaching out to you all to discuss the text amendment.”

Amazon, apparently, was under some pressure. Prior to June 15, 2021, according to Foote, Amazon had contracted to buy the Weissberg property for $39.7 million, and according to a note from Schaeffer was nearing the end of study periods to determine if it should finalize its contract.

In early July, Amazon pressed to set up more meetings. An email indicated Schaeffer would meet with Amazon officials the week of July 5, 2021. Whether Schaeffer signed a non-disclosure agreement to meet with Amazon is not known, but Walton and zoning administrator Kelly Machen did. By July 15, at least six members of the town council and at least three planning commissioners had met individually with town officials and Amazon representatives, according to notes taken by Schaeffer.

One was Ali Zarabi, a planning commissioner for 21 years. According to Schaeffer’s notes, he objected to what he called “tailor made processing” for Amazon.

Zarabi also later expressed concerns about the writing of the amendment. He said a small town like Warrenton has limited expertise on its staff, and that consulting with a land-use expert like Foote might be OK in some circumstances. But Zarabi said that if town staff allowed him to help draft a zoning amendment for his client, that was, in his opinion “outside of the bounds of the ethical and professional way [for the town] to approach this.”

As for Foote, Zarabi gave him credit for being “transparent” and working diligently for his client.

Regarding the private meetings with Amazon, Semple later wrote an email to Schaeffer saying the “optics” of town officials signing NDAs and meeting with the company did not look good. Still, he and other officials agree that private meetings with applicants are not unusual in Warrenton, as elected and appointed officials often meet one-on-one with businesses looking for zoning adjustments.

Susan Helander, a planning member for 14 years and currently the commission chair, described it as a practice that helps the business take the town’s temperature and allows the public officials to learn more about what is wanted or offered. Of her private meeting with Amazon officials, she said, “I wouldn’t look at it as it was sneaky. It was just more for information.”

At the next planning commission meeting on July 20, Zarabi cast the lone vote against the text amendment to allow data centers. One of his biggest issues, he said, was that they were not mentioned in the town’s comprehensive plan, passed in April. He said later that “data centers have never been discussed in three and a half years [of plan development] and were outside of what the public was aware of. Therefore it was not in the people’s plan.”

Commissioner Lawrence said he had once been opposed to the text amendment but had changed his mind. He said this amendment merely allowed the town to decide on future data center development. Given the potential tax benefits, he said the town ought to be allowed that option.

Meeting on Aug. 10, the town council unanimously approved the text amendment. On Sept. 21, 2021, Amazon closed its land purchase deal.

On April 13, 2022, Foote’s office sent the town an application for a special use permit for Amazon to put a data center at the Blackwell Road site.

Semple said that he now regrets his vote in favor of the text amendment, considering that data centers in Warrenton are a “big deal.”

“Why didn’t we take more time? Why didn’t we explore the true implications? ... I ask myself, why did I vote for this amendment?” Semple said.