The Valley View School District further threw its weight behind opposition to Archbald data centers on Monday, taking action for the fourth time in less than a week to stave off data centers near its schools.

The district filed a land-use appeal in county court challenging a Dallas, Texas-based developer’s contention that its proposed 18-data-center Project Scott campus on Eynon Jermyn Road should be automatically approved due to a procedural issue. The filing is the latest from the Joyce, Carmody & Moran PC law firm — Valley View’s solicitor —  following a decision last month by school directors to move forward with legal challenges to data centers and Archbald’s zoning.

The same day that Valley View filed the appeal, Lackawanna County Judge Terrence R. Nealon scheduled Sept. 3 hearings to consider whether the district has the legal standing to join two ongoing legal battles: intervening to join Archbald residents in their challenge to invalidate Archbald’s data center zoning, and intervening alongside Archbald in its defense of the deemed approval. The district also sent Archbald Council President Louis Rapoch a letter last week arguing that the seven-data-center Project Gravity campus on Eynon Jermyn Road is not actually permitted by right and should require a public hearing.

Throughout Lackawanna County, developers want to build nearly 100 data centers across more than a dozen campuses, but the highest concentration of proposals fall into Archbald’s Eynon Jermyn Road corridor where there are currently 30 data centers and a 400-megawatt natural gas power plant proposed along a roughly 1-mile stretch, extending from just beyond the borough’s popular Staback Park to the Jermyn border. The projects place the closest data centers about half a mile from Valley View’s intermediate school on Columbus Drive and about a mile from its middle and high schools on the same road.

Valley View’s schools serve about 2,345 students, according to the district.

‘Entrusted to its care’

The proliferation of data center proposals on Eynon Jermyn Road has emerged as a central issue in the local data center debate due to their proximity to schools, homes and parks; in its court filings, Valley View presents itself as being prepared to make legal defenses that Archbald is not in the position to pursue.

“The district is charged with non-delegable statutory duties … to provide for the health, safety, and educational welfare of the students entrusted to its care and to maintain and protect the school facilities at which those students are educated — duties that the borough does not share and cannot discharge on the district’s behalf,” Attorneys Brendan N. Fitzgerald, Larry Moran Jr. and Kyle Callejas wrote in the appeal.

Specifically, allowing the data centers would affect student safety, transportation, emergency preparedness, utility infrastructure, environmental impacts, traffic, noise, water usage, electric demand, lighting, air quality and the operation of district facilities, the attorneys wrote.

Monday’s appeal names borough council and data center developer Archbald I LLC as defendants.

Working under the limited liability company, Provident Realty Advisors of Dallas, Texas, which operates as Provident Data Centers, filed a conditional use application for its Project Scott data center campus on Dec. 16, seeking approval from borough council to build 18 data centers, each up to 90 feet tall with a 154,850-square-foot footprint across about 400 acres between Eynon Jermyn Road and Business Route 6.

State law requires municipalities to hold their first hearing on a conditional use application within 60 days and subsequent hearings within 45 days, unless the applicant agrees to an extension. Failing to meet those deadlines results in deemed approval of an application, meaning it moves forward without needing approval from the borough.

Council held its first hearing Feb. 11, but the borough and Archbald I’s representatives agreed to reconvene due to time constraints before the developer could complete its testimony.

Archbald and Archbald I officials agreed to hold their next meeting March 19, and by announcing the meeting date during the hearing, Archbald satisfied the state’s requirements for providing public notice of the new hearing. However, the next day, Archbald I’s attorney, Jeffrey Esch McCombie, asked the borough for a new date because project manager Nick Farris, the director of acquisitions and director of data center development at Provident who testified in February, had a family vacation he could not reschedule.

Archbald accommodated the request and scheduled a new hearing on March 23, but doing so required the borough to take steps to advertise the hearing in the newspaper of general circulation — The Times-Tribune — for two consecutive weeks. Solicitor Jay O’Connor’s law firm submitted notices, but due to a clerical error at the paper, they were never published. Archbald discovered the error the day of the hearing; because it was not legally advertised, Archbald could not hold the hearing.

O’Connor asked Esch McCombie for an extension, but he declined.

With the 45-day deadline looming and not enough time to publish new notices, the borough held a special meeting March 27 to deny the application and avoid a deemed approval.

The developer disputed that decision, filing an April 24 land-use appeal in county court arguing Archbald abused its discretion by denying its application before the hearing was complete, calling it “an ineffectual attempt to avoid this deemed approval.” Archbald I subsequently published a May 1 public notice declaring its deemed approval and filed a May 12 mandamus complaint asking the court to order Archbald to recognize the deemed approval. Valley View petitioned the court to intervene in the mandamus complaint; the same residents challenging Archbald’s zoning, through their attorney, Justin Richards, petitioned the court May 26 to intervene in the developer’s land-use appeal.

‘Big impact on students’

Valley View, in its appeal this week, argues that there was no deemed approval. The district’s attorneys cited case law that “deemed approvals are not favored” because they result in regulatory approvals that could be at odds with zoning regulations intended to protect the health, welfare and safety of a community. The appeal also references legal precedent that courts are “alert for gamesmanship” that allows cases to be decided based on timing issues rather than their substance.

Just like Archbald acted in good faith to reschedule the hearing, Archbald I owes the borough a reciprocal duty to act in good faith, according to the appeal.

The appeal additionally cites a slew of zoning criteria that the district argues the developer failed to satisfy.

Esch McCombie declined to comment Friday due to the active litigation.

Archbald resident Tamara Misewicz-Healey, who founded the Stop Archbald Data Centers movement with her husband, Justin, called Valley View’s decision to join the data center fight “a surprising twist, but a good one.” Valley View brings with it legal and ethical weight, she  said.

The mother of three pointed to impacts on students and staff from air pollution, noise and traffic.

With homes, parks and sports fields in close proximity, data centers and the proposed power plant would also impact where students live and play, she said.

“Although a bit late, I am very thankful that they did come around, because this is going to have a big impact on students, teachers of Archbald and our whole school district in multiple ways,” Misewicz-Healey said. “Seeing the school take a stance on the side of extra caution for the kids, and standing with the residents, I think it was a move that, honestly, we were looking for this entire time.”