As data center developers increasingly sue municipalities to try to gain court approvals of individual projects, one local councilman thinks communities should go on offense and file a joint lawsuit — against the state of Pennsylvania.
Jessup Borough Councilman Curt Camoni recently raised the idea of his borough reaching out to neighboring municipalities to see if there’s any appetite for banding together to sue the state over how data-center development plays out at the municipal zoning level with little regard for cumulative impacts, and how seemingly every decision a municipality makes puts it on defense in court from developer lawsuits or appeals.
Camoni views existing state law as stacked against municipalities when data center developers come to town with their plans. Jessup so far has received two data-center proposals from one parent-firm developer and both currently are the subjects of appeal lawsuits pending in Lackawanna County Court.
“You can either say yes or get sued into oblivion — multiple lawsuits per projects. The entire system is broken and it’s rigged and it’s certainly not in favor of the residents,” Camoni said during a council meeting Thursday, according to the borough’s video simulcast and recording of the meeting. “I would like our solicitor to reach out to our neighboring communities and their solicitors and see if we can’t get several municipalities in our immediate area together, and instead of just getting bludgeoned to death by all of the lawsuits that we get, let’s sue the state and try to get some action or some fix.”
Jessup faces legal challenges regarding a Breaker Street Associates project of six data centers along Breaker Street, and a Sunnyside Road Associates project for one data center next to Lackawanna Energy Center. The Breaker Street lawsuit challenges Jessup’s zoning rejection of an electrical substation in a residential area. Sunnyside’s suit challenges a height variance, in which the firm sought a 70-foot height of the building but the borough capped it at 50 feet.
Archbald and Olyphant also face pending lawsuits from developers seeking court approvals of numerous data center propsals in those boroughs.
Camoni likened data center development to “prospecting for gold” under law that starts an approval-process clock ticking and vests developers with certain rights.
“They can put in an application that’s basically complete nonsense and doesn’t comply with anything, but then amend that and amend that and amend that, and never have to update and come under our new zoning with our new restrictions and our better safeguards,” Camoni said. “We can just keep giving them 47 bites at that apple and every step along the way they threaten to sue, or actually do. Every step of it is rigged against the residents.”
Noting his remarks are not critical of local state legislators who have been “terrific” on data-center issues, Camoni said generally municipalities are on their own, outmatched and outgunned in the face of an onslaught of data center proposals.
“I don’t think the cavalry is coming,” Camoni said of the state. “What I’m suggesting is we try to play offense a little bit … if we don’t do it and nothing gets done, it’s going to get done to us.”
It’s not clear if the borough would follow through with such a lawsuit against the state, either alone or jointly with others; or in which court (county or state level) a case would get filed; or what legal form it would take; and on what grounds. Camoni said such a suit might claim “gross negligence of the state for not looking at this in a cumulative fashion … I don’t think we can sit back and wait anymore.”
Council President Gregg Betti said, “I’d have to think more about it, to see if it is a go with the other boroughs and how a lawyer would handle that.”
Saying it might be a good idea to pursue, Councilman Ronald Kordish said, “I think we should extend that invitation to all of the communities in Lackawanna County, because you know the more the better. What’s that cliché — there’s strength in numbers.”
Councilman Robert Martin Rob agreed, noting Jessup could end up surrounded by data centers in neighboring towns.
“We want to do what’s best for the residents,” Martin said. “Some people are just trying to sue us into submission because they think we’re just going to lay down and die, and I’m not willing to do that.”