King George Board of Zoning Appeals Denies Request from Amazon Data Services
Company is seeking a determination that it has vested rights in property it purchased in 2023 with the intention of developing a data center.
By Adele Uphaus
MANAGING EDITOR AND CORRESPONDENT
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The King George County Board of Zoning Appeals (BZA) this week denied an appeal entered by Amazon Data Services, Inc. of a zoning determination made by the county last summer.
Amazon, represented by attorney Charlie Payne, requested the zoning determination in May of 2024, after the Board of Supervisors initiated a downzoning from industrial to agricultural of nine parcels, totaling 893 acres, that the company purchased for $168 million in 2023.
Supervisors in September of 2023 approved the rezoning of the parcels from agricultural to industrial, along with a comprehensive plan amendment, proffer amendment, and special use permit paving the way for the development of a data center.
In December of 2023, supervisors approved a local performance agreement with Amazon and the county’s Economic Development Authority. The goal of that agreement was to “implement processes and develop the infrastructure needed to support [the data center] project that had been approved,” said Jaime Wisegarver, an attorney with Hirshler Fleischer who represented Amazon in its appeal at Tuesday’s BZA meeting.
Then in January of 2024, the Board of Supervisors, with three new members, rescinded the performance agreement, and in April, the board initiated the downzoning.
In his letter of May 8, 2024, Payne asked Angela Foroughi, then the county’s acting zoning administrator, to issue a determination finding that Amazon has vested rights in the parcels, “vested rights that the Board cannot now unwind by downzoning the Property back to agriculture.”
Payne wrote, and Wisegarver reiterated at this week’s meeting, that Amazon had already spent $6 million in development efforts at the site by January of 2024, when the Board rescinded the performance agreement.
“Vested rights happen when three things occur—the land owner obtains or is the benefciary of a significant affirmative governmental act, the landowner relies on the good faith of a significant affirmative governmental act, and the landowner incurs substantial expenses in diligent pursuit of a specific project,” Wisegarver said. “That’s what happened here.”
On August 8, 2024, County Administrator Matthew Smolnik, acting as the zoning administrator, replied to Payne’s letter, stating that issuing a zoning determination would require him to interpret Virginia State Code, which is “outside of my legal responsibilities.”
Hirschler Fleisher, on behalf of Amazon, subsequently appealed this response to the BZA, asking them to find it “untimely and insufficient.”
“How can a developer that’s in the position of Amazon continue to move forward when the very question that the statue requires the zoning administrator to answer, the zoning administrator didn’t answer,” Wisegarver said. “I gather there was a disagreement between Mr. Smolnik and Mr. Stuart, but [Mr. Smolnik] was obligated to provide Amazon with an answer and he didn’t do so.”
However, by a vote of 4-to-0, with two abstentions, the BZA affirmed Smolnik’s response, agreeing with the argument presented by County Attorney Richard Stuart.
Regarding the question of timeliness, Stuart invoked privileges accorded to him as a member of the General Assembly under Virginia Code, which grant him and his clients a continuance on any deadline when he is in session.
Stuart and his co-counsel, Mary Stuart, argued that a decision regarding vested rights is a decision of law and that Virginia Code does not require a zoning administrator to make a decision of law. This code section states that “in specific cases,” the zoning administrator can make a decision of law “with concurrence of the attorney for the governing body.”
“Because it was a question of law, Mr. Smolnik had one opinion, Mr. Stuart had another, they did not concur, so the statute did not require them to make a determination,” Mary Stuart said.
In an email to the Advance on Thursday, Payne said Amazon has 30 days to appeal the BZA’s decision but that he had “nothing to report at this point.”
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