A Smyth County zoning ordinance about requirements for data centers is being challenged in court by a resident concerned it will open up farmland for development.
Charles Wassum filed the lawsuit after the county passed a new ordinance establishing a special permit process for data centers across industrial, commercial and agricultural zones. According to court documents obtained by Cardinal News, the suit asks for the Smyth County Circuit Court to void the board of supervisors’ vote on the ordinance, based on a lack of compliance with voting procedures and adherence to the county’s comprehensive plan.
The county’s zoning codes used to allow “data processing facilities” in industrial and commercial zones by right — meaning landowners could move forward with no local government approvals required.
That changed after a board of supervisors vote in early September, requiring data center developers to apply for a special use permit and move through a public process. But the new ordinance also expanded where data centers could be allowed in Smyth County, adding agricultural zones to the list.
Wassum views that as an action to open up the majority of the county to data centers, he said in an interview.
That goes against what the board voted on as its comprehensive land use plan in April 2024, he said, which designates much of the county as farmland.
“It doesn’t align with the map,” Wassum said. “The map says, this is where farmland is. The ordinance says, we’re going to put data centers there. You can’t go that way.”
Filed last month, the lawsuit alleges that the board of supervisors and the planning commission didn’t properly consider whether the ordinance would comply with the county’s comprehensive plan. Virginia law requires “reasonable consideration” for a locality’s plan, which each must have by law, before creating zoning ordinances.
“The rural character of the county is extremely important to the quality of life associated with living in Smyth County and the region,” according to Smyth County’s plan, which the lawsuit quotes. “With continued growth, land use and zoning will need to be enforced to ensure orderly growth that does not impact the rural character of the county.”
Allowing data centers to exist in agricultural zones goes against the comprehensive plan, in which data centers aren’t mentioned, the lawsuit says.
It also alleges that the process of getting to a vote on the ordinance was illegal.
The content of the proposed ordinance was amended between a June planning commission public hearing and the September board of supervisors vote, according to the lawsuit, significantly expanding the definition of data centers in the ordinance. The county did not hold an additional hearing to get public input about the changes.
Then, during the September meeting, the board moved up the vote on the planning commission amendments to the top of the meeting agenda, before public comment.
“This is reflective of the board’s disdain for the rural lifestyles and land uses that local residents wish to preserve,” the lawsuit says.
The lawsuit alleges the vote itself was not done properly because some supervisors participated through a speakerphone call. Four out of seven supervisors were physically present during the meeting.
Two of the absent supervisors were approved to participate electronically at the beginning of the meeting by the supervisors who were present, but later on in the meeting, Supervisor Rick Billings said he had misgivings about allowing that to happen.
“I’m just saying a vote this important, we should all be here, if possible,” Billings said during the meeting.
At that point, the vote had already concluded. The four present supervisors approved the ordinance, one of the absent supervisors approved the ordinance by phone and another absent supervisor abstained.
Virginia law allows remote participation under specific conditions, like a medical issue that stops someone from attending, but the lawsuit alleges those guidelines were not met during the meeting — stating the absent members were prepping for a football game. It also says the board operated outside of its authority by voting before allowing public comment and voting on an ordinance that had been significantly changed without a public hearing.
“The county worked through a thoughtful, engaging process to develop a proposed ordinance related to control of data centers in our community following the requirements set forth by the Code of Virginia,” County Administrator Shawn Utt said by email.
The county has no official comment on the lawsuit itself, Utt said.
There is no hearing scheduled yet for the case.
