Developer appeals Jessup’s denial of Breaker Street data centers

A developer wants a Lackawanna County judge to overturn the Jessup Zoning Hearing Board’s denial of a Breaker Street data center campus.

Breaker Street Associates LLC filed a land use appeal Jan. 29 in the Lackawanna County Court of Common Pleas contesting the zoning hearing board’s unanimous denial of its request for zoning relief to build data centers across 131 acres on the south side of Breaker Street between Hill Street and the Casey Highway. Breaker Street Associates LLC, One Tower Bridge, 100 Front St., Suite 560, West Conshohocken, initially applied June 10 to build six 130-foot-tall data centers that would use 600 megawatts of power, with a switchyard/substation falling into residentially zoned land north of Breaker Street — the core issue surrounding the zoning dispute.

Kingston-based law firm Hourigan, Kluger and Quinn filed the appeal on behalf of Breaker Street Associates, arguing the board abused its discretion and erred in the law with its denial. The appeal describes the decision as “arbitrary, capricious, an abuse of discretion, contrary to law and not supported by substantial evidence.”

Catalyst Commercial Development LLC, the firm behind Breaker Street Associates, also wants to build a 487,000-square-foot data center near Sunnyside Road and Alberigi Drive, according to an Aug. 13 land development application and accompanying plans obtained via a Right to Know Law request. The data center would be next to the Lackawanna Energy Center natural gas-fired power plant.

The developer applied for the Breaker Street campus before Jessup Borough Council adopted a zoning amendment Aug. 19, which it reamended Nov. 5, to define and regulate data centers while restricting them as conditional uses south of the Casey Highway in light industrial/business park and general industrial zones encompassing the Valley View Business Park and the land surrounding the Lackawanna Energy Center plant. Jessup’s original November 2020 zoning ordinance did not define data centers, only saying they “may include an internet server building.” The previous zoning allowed data centers in multiple zones, including the mixed-use zoning district covering the undeveloped land south of Breaker Street. While the data center buildings themselves were allowed in the zoning district, the necessary electric infrastructure fell into more restrictive medium-density residentially zoned land north of Breaker Street, requiring zoning relief.

That needed relief prompted Jessup’s zoning officer to deny Breaker Street Associates’ application on June 25, which the company appealed the following month. The zoning hearing board ruled against the appeal on Dec. 23, noting in its Jan. 2 written decision that the developer requested a special exception to allow the switchyard/substation in the residential zone as an accessory use by characterizing it as a “public utility facility”; the board ruled that the infrastructure is not an accessory use in the residential district, instead requiring the infrastructure to be built on land zoned for data centers.

In its new appeal, Breaker Street Associates reiterated its contention that using the land for utility structures and data centers is a permitted accessory use and exempt from local zoning; or, alternatively, that it still wants a special exception for utility structures and improvements associated with its proposed data center as a “public utility facility.”

“The definition of ‘accessory use’ in the ordinance should be construed as including Breaker Street’s use of the property for utility structures and improvements associated with a proposed data center,” attorneys Richard M. Williams and Kevin M. Walsh Jr. wrote. “Like a breaker box, a switchyard/substation is an accessory use for a data center and should be permitted.”

The attorneys further argue in the appeal that a switchyard/substation is exempt from local zoning and would be addressed through the Pennsylvania Public Utility Commission.

The appeal also contends that the electric infrastructure should receive a special exception designation as a public utility facility. Williams and Walsh assert in the appeal that Breaker Street Associates demonstrated compliance with all applicable standards in the Pennsylvania Municipalities Planning Code, as well as Jessup’s zoning ordinance.

“Moreover, no evidence was presented showing a high degree of probability that the proposed use will adversely impact upon the public interest,” the attorneys wrote. “Finally, no evidence was submitted that the proposed use would substantially affect the health, welfare or safety of the community to a greater extent than what is normally expected from such use.”

Breaker Street Associates asks the court to reverse the zoning hearing board’s decision and award any relief it deems necessary.

Monday Update

THEN: The Jessup Zoning Hearing Board denies zoning relief needed for a data center campus along Breaker Street due to electric infrastructure falling into a residential area.

NOW: The company behind the proposal appealed the decision to the Lackawanna County Court of Common Pleas, asking a judge to allow the project to move forward.