Two weeks ago, King George Board of Supervisors Chair T.C. Collins declared that the county was at “war” with Amazon Data Services over the enforceability of a performance agreement, signed in December, to construct a data center campus.
King George may have launched a preemptive strike Tuesday night when the supervisors voted unanimously to send a letter to the planning commission requesting that it reconsider the rezoning of more than 500 acres Amazon owns from industrial back to agricultural.
The land was rezoned from agricultural to industrial in September to allow Amazon to build on the properties, which consist of six parcels of land.
The reconsideration does not include the 317 acres on the Birchwood power plant site, the main focus of the performance agreement.
King George Interim County Attorney Richard Stuart informed the board Tuesday that a Virginia law called the Doctrine of Vested Rights likely would not allow the county to reconsider the Birchwood property, which was partially zoned industrial previously.
“Under the law in Virginia you have vested rights in a property … if you in good faith rely on a significant government act and take significant steps forward in exercising those rights,” Stuart said. “I think there’s an argument to be made that they have done that on the 317 acres of the old power plant …
“I cannot see — and I’ve looked at this and tried to connect information — where they have a case to be made for vested rights on the additional 500 and some acres, and that’s the land between the power plant site and [State Route 3] and then the land on what you would call the old Maury site on the south of Route 3.”
The board also voted 5-0 to have the planning commission reconsider amendments to the county’s comprehensive plan that allowed the rezonings to take place last year.
Stuart believes these steps are necessary after recent correspondence with Charlie Payne, an attorney for the Hirschler Fleischer law firm representing Amazon Web Services in the $35 billion investment it touted in deals completed with Caroline, Louisa, Spotsylvania and Stafford counties last month.
In his letter, Stuart asked Payne for a commitment from Amazon to provide two million gallons of treated drinking water per day (up from a minimum 600,000 gallons of raw water pledged in the performance agreement) to residents in addition to three other requests.
The board also asked through Stuart that Amazon commits to leaving property on the west side of the riverside of Route 3 undeveloped; improves buffers and screening on the eastern side of Route 3 so that the project is not noticeable from the highway; and a “more cooperative relationship between AWS and the public in order to assist AWS in improving its reputation amongst the citizens of King George County.”
“If your client is willing to entertain discussion on these items, then I believe this project can be resurrected,” Stuart wrote in the letter, which was posted on the county’s website. “I look forward to your response in the near term so we can all decide the most appropriate course.”
Stuart received a response from Payne, but it was not pleasing to him or the board. Payne stressed in his answer that AWS’s position remains that the performance agreement signed in December by the supervisors — before three new representatives came aboard — remains legally binding.
Payne’s response stated that until King George reaffirms the performance agreement, there will be no negotiations.
“Before [Amazon Data Services] can proceed forward to negotiate the water agreement contemplated under the performance agreement, the county must first reaffirm the performance agreement,” Payne wrote. “Thereafter, I believe both parties will be in a better position to address the county’s most recent requests.”
Stuart said during the board meeting Tuesday that he told Payne that when former board member Ann Cupka made a motion to approve the performance agreement in December, there was not a subsequent motion to authorize anyone to enter into the agreement.
Stuart said he and King George Executive Administrative Assistant and FOIA Officer Jaclyn Fish since discovered that the performance agreement was incomplete and claimed there were additional (unspecified) problems with it.
Stuart was prompted to suggest that the board have the planning commission consider reversing its decision to rezone because he doesn’t believe Amazon has vested rights in the properties.
Vested rights could apply if, for example, a landowner obtained a building permit from the local government and started construction, their right to complete the project is protected even if there are changes to zoning ordinances or building codes.
“In all honesty, vested rights is a very nebulous concept,” Stuart said. “I can’t sit here and tell you with 100% certainty that [Amazon] cannot make a case that their project is vested. Although I don’t think they have, a judge could certainly disagree.”
Hirschler Fleischer, an individual or organization central to this story, is a major donor to the Free Press. Donors do not influence newsroom operations.
