Prince William County data center rezoning is void ab initio

Prince William County‘s rezoning of three tracts of land for the development of data centers in a rural part of the county is void ab initio, the Court of Appeals of Virginia held in a lengthy March 31 opinion.

The opinion in Board of County Supervisors of Prince William County, Virginia v. Oak Valley Homeowners Association Inc. (VLW 026-7-114) combined four appeals of three rezoning ordinances enacted by the Board of Supervisors to permit the development of data centers. The landowners argued the ordinances were invalid because the advertising for the board’s 2023 meeting when the ordinances were adopted violated Va. Code § 15.2-2204(A).

Court of Appeals Judge Stuart A. Raphael authored the court’s opinion, writing that, in resolving the consolidated appeals, “we make clear that a public body must advertise proposed zoning ordinances in compliance with Code § 15.2-2204(A) and with any non-conflicting advertising requirements self-imposed by ordinance.

“In other words, in a timely challenge brought under Code § 15.2-2204(E), a plaintiff who alleges and proves standing may enforce the mandatory public advertising requirements, even if the plaintiff knew about and actively participated in the public hearing.”

Fairfax attorney J. Chapman Petersen, a former state senator, represented the plaintiffs in one of the initial suits. Petersen, whose practice is Chap Petersen & Associates, told Virginia Lawyers Weekly that the initial rezoning approval of the data center project, termed the Digital
Gateway, was “the high-water mark of the data center industry in Virginia, and perhaps the world.

“The fact that a Virginia local government would approve 20 million square feet of a massive, high-intensity industrial use in an agricultural area bordering two Civil War battlefields — and do so without comment from … congressional leadership — was extraordinary and itself historic,” Petersen said.

Petersen praised the decisions by both the circuit and appellate courts.

“The rejection of the rezoning by [Prince William County Circuit Court Judge Kimberly A. Irving] was one of the most courageous legal decisions of our lifetime,” Petersen said. “The decision by the Court of Appeals to affirm her ruling was a close second. They have done us proud.”

Remaining counsel in the combined cases either declined to comment on pending litigation or did not respond to requests for comment.

Background

The combined actions stemmed from the Prince William County Board of Supervisors’ enactment of the Digital Gateway Comprehensive Plan Amendment in 2022 to facilitate the development of data centers in Prince William County. The Oak Valley Homeowners Association and 11 other landowners, referred to in case documents as the “Oak Valley plaintiffs,” then filed suit to invalidate the plan amendment.

In that matter, the Supreme Court of Virginia refused to hear a petition of appeal from the Oak Valley plaintiffs, leaving in place a ruling that rejected a claim that the board had a duty to “listen and consider” public comments made during the 2022 hearing.

Developers applied for three rezonings, totaling more than 20 million square feet of development of gross floor area into data centers across the parcels, leading to as many as 37 data centers that “would operate continuously ‘24/7.’”

In November 2023, the Prince William County Planning Commission recommended the board deny the three rezonings. The board scheduled a Dec. 12, 2023, public hearing on the rezoning applications.

The meeting thus fell under the purview of Va. Code § 15.2-2204(A), which in relevant part states that the board was required to advertise its intent to adopt each rezoning ordinance via advertising “once a week for two successive weeks in some newspaper published or having general circulation in the locality, with the first notice appearing no more than 14 days before the intended adoption.”

The board intended for ads to run in The Washington Post on Nov. 28 and Dec. 5, 2023, to satisfy this requirement. Per court documents, it is undisputed that the Nov. 28 ad did not run, but a dispute existed over who was responsible. Three advertisements ran in The Washington Post on Dec. 2, Dec. 5, and Dec. 9, 2023.

The Prince William Circuit Court case found as fact that the proposed plan was not available for public examination until Dec. 7, 2023, five days before the meeting.

The public hearing went on as scheduled on Dec. 12, with the board hearing 17 hours of public comment on the matter. Ultimately, the board voted 4-3, with one abstention, to approve the rezonings on the afternoon of Dec. 13 — 27 hours after the meeting commenced.

The Oak Valley plaintiffs and the Burke plaintiffs, a group of 10 landowners, timely filed suit.

In the Oak Valley case, Judge Kimberly A. Irving of the Prince William County Circuit Court found in favor of the Oak Valley plaintiffs and invalidated the ordinances.

In the Burke case, Judge Tracy C. Hudson of the Prince William County Circuit Court ruled in favor of the board, dismissing the challenges of the Burke plaintiffs.

The board and the developers each appealed the Oak Valley decision, while the Burke plaintiffs appealed the decision in their case. The four total appeals were consolidated before the Court of Appeals in this opinion.

Advertising

“As set forth in this section, the Court holds that none of the three public advertisements for the Board’s December 12, 2023 meeting satisfied the advertising requirements in Code § 15.2-2204(A) and Prince William County Zoning Ordinance § 32-700.60,” Raphael wrote.

At issue beyond the relevant statute is the relevant zoning ordinance from Prince William County, which diverged from the state statute following a 2023 amendment putting in the 14-day requirement before the meeting. The ordinance did not make a corresponding amendment until 2024 — after the events at issue took place.

Although the board planned to meet the statutory milestones, it did not have an advertisement run on Nov. 28, 2023. Irving found that the ads did not run because “the [board’s] clerk failed to confirm the publication request.”

The board claimed on appeal that it met the statutory terms because it submitted a timely request that the newspaper failed to publish, arguing that “fails to publish” means the newspaper simply did not publish as requested.

Raphael wrote that the statute’s construction “presents a pure question of law that we review de novo.

“The saving provision in Code § 15.2-2204(A) cannot help a locality unless the locality submits ‘a correct and timely notice request’ and ‘the newspaper fails to publish the notice, or publishes the notice incorrectly,’” Raphael continued. “Those requirements go hand in hand. And the Board failed to satisfy them.”

Raphael wrote that, in the court’s view, the term “fails to publish” in the statute “is best understood to require some sort of fault or mistake by the newspaper; the newspaper must ‘neglect to do something.’”

Even with that determination, Raphael noted that the ads that ran violated the “where-to-review” requirement, by finding the ordinance drafts were not available until after the first two advertisements ran.

“We reject the Board’s response … that the where-to-review requirement is satisfied by telling citizens where the draft ordinance will eventually be available for review,” Raphael wrote. “The requirement to tell citizens where the required documents ‘may be examined’ and where ‘copies … may be viewed’ means that the text must be available when the ad runs.”

Raphael also disagreed with the board’s argument that it could delay release of the text of the proposed ordinance until the agenda package was provided to board members.

“Under the Board’s reasoning, a board chair could wait until the day before the public meeting to make a proposed zoning ordinance or amendment available to other board members and the public,” Raphael
wrote. “The Board’s interpretation would invite sandbagging and thwart the where-to-review and two-successive weeks notice requirements.”

Raphael also noted that if the Dec. 5, 2023, advertisement is the “second” publication, then it violates the six-days-in-between requirement. The Dec. 9, 2023, advertisement, if considered the “second” publication, also failed to comply with other requirements.

“Even viewing the December 9 ad as the ‘second’ advertisement, as the Board and developers urge, the ad ran too soon before the hearing date to satisfy the not-less-than-five-days-after requirement,” Raphael wrote.

Raphael noted that the board and the developers did not sufficiently state a reason for not postponing the hearing in order to fulfill the advertising requirements. The judge also noted that the argument that the hearing could not be continued was raised first on appeal.

“Under the plain language of the ordinance, the one-year period to act had renewed and was no impediment to postponing the hearing date, had the Board wanted to do so,” Raphael wrote.

Raphael thus affirmed the ruling in the Oak Valley case and reversed the ruling in the Burke case, ruling in favor of the original plaintiffs in all matters.

The opinion continued a partial stay entered in November 2025, recognizing that the board and developers had 30 days to appeal to the Supreme Court of Virginia.

The Prince William County Board of Supervisors voted unanimously April 14 to approve a resolution directing the county attorney and outside legal counsel not to file a petition for a writ of appeal to the Supreme Court of Virginia on the Court of Appeals’ decision.

As of press time, the developers had not confirmed whether they intended to appeal.

Board of County Supervisors of Prince William County, Virginia v. Oak Valley Homeowners Association Inc.

THE ISSUE     Should Prince William County’s rezoning approvals for a data center campus be voided over problems with advertising a public meeting?

DECISION      Yes (Court of Appeals of Virginia)

LAWYERS      Andrew R. McRoberts, Maxwell Hlavin and Adam B. Winston, Sands Anderson (county board appellants)
Robert W. Loftin, John J. Woolard, Richard J. Batzler, Juliet B. Clark and Bridget E. Maas, McGuireWoods (GW developer appellants)
Matthew A. Westover, John H. Foote, Mark C. Looney and Lee Gleason, Walsh, Colucci, Lubeley & Walsh and Cooley LLP (H&H developer appellant)
Craig J. Blakeley, Alliance Law Group (Oak Valley appellees)
J. Chapman Petersen and Christopher T. Robertson, Chap Petersen & Associates (Burke appellees)

“The rejection of the rezoning by [Prince William County Circuit Court Judge Kimberly A. Irving] was one of the most courageous legal decisions of our lifetime.”

— J. Chapman Petersen, Chap Petersen & Associates,
Fairfax, Burke plaintiffs’ counsel

• Board of County Supervisors of Prince William County, Virginia v. Oak Valley Homeowners Association Inc.