Loudoun Leaves 15 Grandfathered Data Center Projects Alone

Item 10.a on the Loudoun County Board of Supervisors’ October 6, 2026 business meeting agenda was an information item titled “Response to Board Member Initiative: Amendment to the 2025 Data Center Grandfathering Resolution,” with Betsy Smith of Building and Development and County Attorney Leo Rogers as staff contacts. The staff report gives the history. On March 18, 2025 the board ended by-right data center development in its Industrial Park, General Industry and Mineral Resource-Heavy Industry zoning districts, so a new data center there needs a special exception, which means a public hearing and a board vote. The same night it adopted a grandfathering resolution by 5-4. Under it, a site plan the county had officially accepted for review on or before February 12, 2025 can keep going without a special exception if the use was by right when it was accepted, the buildings and outdoor mechanical equipment are more than 500 feet from homes that existed on that date, the applicant makes no substantial change, and the applicant keeps pursuing approval. The report says that status ends on February 12, 2028. On September 1, 2026 the Algonkian and Little River district supervisors proposed a new resolution to end the grandfathering early. The board instead voted 9-0 to ask the County Attorney for a legal opinion and to ask staff for a public inventory of the affected applications. October 6 was the answer.

The inventory is the news. Staff lists 15 applications in review that are grandfathered today, covering 30 buildings and 10,459,568 square feet. Four more have lost the status, covering 10 buildings and 1,830,864 square feet, and one, a 99,635 square foot plan called Clintmar, is not currently grandfathered but can regain the status by meeting the 500-foot setback. The legal opinion itself went to the board as a privileged memo and is not public. What is public is staff’s estimate of the cost of repeal: up to $1 million a case to defend, similar fees for the other side if the county lost, and damages claims as high as $2 million per case, for $45 million to $60 million of potential liability that the county would have to disclose. The county has not posted an action summary for the meeting, so the outcome is reported, not yet a county record. WUSA9 reports that the repeal was never put to a vote, that Supervisor Laura TeKrony instead moved for an independent audit of the projects costing up to $200,000, and that the board tabled that motion 7-2 with no date to bring it back. Bisnow and Fox 5 also report that the item was tabled.

Until this report, whether a Loudoun site was grandfathered was something a buyer or lender heard from the seller. Now it is a county table. The 15 protected plans are not evenly sized. The largest is Digital Dulles Phase III on Carters School Road in Sterling at 4,355,759 square feet, which Bisnow identifies as a Digital Realty project. That one plan computes to about 42 percent of the protected square footage. Add Tech Park at Dulles on Old Ox Road at 1,239,000 square feet and Ashburn Data Center on Coach Gibbs Drive at 1,176,000, and three plans compute to about 65 percent. Six of the 15 are under 200,000 square feet. A second table lists what has already cleared: 14 grandfathered plans approved or conditionally approved between March 18, 2025 and September 18, 2026, covering 25 buildings and 9,041,142 square feet. The report says a conditional approval carries the same vested rights as an approval, and that those plans have a five-year validity period, so they sat outside the repeal proposal altogether.

The staff arithmetic is worth reading closely. A staff slide puts the worst case at $4 million a case, which across 15 applications computes to the $60 million top of the range. The report does not show how it reached the low end; $3 million a case computes to $45 million. Bisnow reports that a lawyer for one applicant, JK Land Holdings, wrote to the board that the estimate understates the claims the county would face, and WUSA9 reports that a supervisor said the same. The report also says the county would have to discuss the litigation and any revenue effect with the bond rating agencies, and it makes an argument about reputation in plain terms: when businesses have relied in good faith on a transition process, staff wrote, “reversing that process can undermine confidence in the County’s word.” That is the county’s own staff arguing for keeping its commitments, in the same season the board voted to draft a pause on new applications. PSV covered that September 15 vote. Read together, the board is tightening the rules for what comes next while declining, so far, to reopen what it already let through.

The work is one register, one row per Loudoun data center site a firm owns, lends against or is bidding on. The inputs are all public: the three tables in the October 6 staff report, the attachment that lists approved and conditionally approved plans, the March 2025 grandfathering resolution, and the county’s land records system for each project number. The output is a row that answers five questions with a page citation for each. Which table is the site in: in review, lost, not currently grandfathered, approved, or not listed at all. What protects it: the resolution, an approval with a five-year validity period, a vested rights determination, or a proffer of substantial value, which the report describes as separate protections under Virginia Code sections 15.2-2261, 15.2-2307 and 15.2-2303. When does that protection end. What would lose it: a substantial modification, or a lapse in diligent pursuit. And when was the last county review action on the plan.

The reviewer is the development lead, with land use counsel on the protection column. The approval gate is simple to state: no bid, valuation or loan sizing describes a Loudoun site as grandfathered or vested until counsel has matched it to the county’s table and to a Zoning Administrator determination or court order where one is needed. An assistant is good at the volume part of this. The staff report is ten pages inside a 396-page package, the tables are split across pages, and two of them disagree with each other. Matching project numbers, adding up square footage and flagging where two county lists differ is work to hand off. Deciding what a difference means is not. PSV ran no model on this record, tested no product, and promises no cost, schedule or entitlement outcome.