Dozens of Upper Mount Bethel residents urged supervisors Monday night to reject an agreement with data center developers — only to find out after hours of public comment that a new deal was on the table.
The revised agreement, posted to the township website Tuesday morning, contains language regulating water use, requires a decommissioning plan and removes the extension of a tax abatement.
Also, although the full distribution of funds from a proposed $50 million community benefits agreement would still be tied to the data center development meeting its goal of 2 gigawatts of computing capacity, the original language around donating to nonprofit causes has shifted to say the money will be for “future infrastructure and/or community-based projects.”
The public didn’t have a chance to review the revised agreement before the meeting, and only learned that supervisors and developers had changed the deal after the close of nearly three hours of public comment. The deal was first publicly discussed two weeks ago.
Township residents who have led opposition to a data center campus proposal from Slate Belt Holdings LLC, a partnership between Talen Energy and River Pointe Logistics Center LLC, condemned the deal. Courtney Gilmour said it “reads like a ransom note” and Stephanie Donnelly said it was “manufactured pressure designed to rush this board into signing an agreement before this community has had meaningful participation.”
Following the close of public comment, Supervisor David Friedman motioned to reject the memorandum of understanding with developers. Township solicitor Ron Karasek asked to clarify which agreement Friedman wished to vote on, saying a revised version had been received that afternoon.
That announcement kicked off anger in the crowd, which had not previously been told that the deal had been changed. Friedman clarified that he was not in favor of any deal, and Chair John Bermingham seconded him.
Friedman said the ongoing threat of litigation made him oppose any deal with developers.
“I do not want to sit down and negotiate with someone who is suing us,” he said.
When a vote came, Bermingham was the only supervisor to back Friedman’s motion to reject any deal. Supervisors Jason Albert, Jon Erler and Cori Eckman opposed the motion.
Erler continued to ask for more discussion on the proposed changes to the draft memorandum of understanding, but Bermingham pushed for the meeting to adjourn, and he was joined by Albert and Friedman in tabling further action.
Zoning under challenge
The township is awaiting an expected mid-September ruling from its zoning hearing board on a challenge developers filed in July that claims its ordinance unlawfully excludes data centers.
Erler and Eckman have repeatedly expressed concern that a ruling in favor of developers would allow the data center campus proposal to advance under the township’s current zoning ordinance, which was designed to regulate warehouses. They have said the memorandum of understanding is the township’s best chance to reach agreement on data center-specific regulations.
Although Erler and Eckman continued to argue Monday night that advancing negotiations with the developers is the best way to win additional regulations, all five supervisors endorsed Bermingham’s call to assign the township solicitor to oppose the developers’ legal challenge to the zoning ordinance.
The township has drafted a data center ordinance, but the legal challenge to its zoning laws has shifted public discussions away from that effort and toward the proposed deal that would end the zoning challenge and see the developers drop other litigation against the township.
Patty Green was among the dozens of township residents who urged supervisors to reject a deal, saying, “They want you to believe they have pinned us into a corner, but they’re wrong” and telling the board: “Do not sign away our rights out of fear of a lawsuit.”
Delaware Riverkeeper Maya van Rossum called the zoning challenge “legally dubious at best” and said the township should have more faith in its ordinances.
“It is not unlikely that Slate Belt is exercising the current strong arm tactics and threats of litigation because they are concerned about some of the strong protections already present in the current Township ordinance and are seeking to force a process whereby they can secure a data center ordinance that, in many essential respects, would be weaker than the status quo and would fully allow for the data center project it already has in mind,” van Rossum wrote in comments submitted to the supervisors.
Bermingham and van Rossum also endorsed continued work on the township’s draft data center ordinance.
In an email statement Tuesday, a spokesperson for Slate Belt Holdings said the development team submitted its zoning challenge to “clarify zoning guidelines for the industrial zone” and to “start a transparent, timely process for specifically including data centers in the township ordinance.”
Slate Belt remains “committed to engaging with township leaders and local residents to set responsible, thoughtful performance standards specifically for data centers in the zoning ordinance, and to reach a community benefits agreement that will help strengthen township services and infrastructure in addition to significant real estate tax revenue generated by the project. We look forward to advancing these efforts in the coming weeks and maintaining open channels of communication and collaboration,” the statement said.
Dealing with developers
Karasek, the township solicitor, told The Morning Call that he received a new draft deal from Slate Belt on Sunday morning, but was not in the office. He then worked to incorporate feedback from Erler, Eckman and Albert, he said, adding that he will now have to gather feedback from Bermingham and Friedman and send those proposed changes back to Slate Belt Holdings.
As to why the public was not notified at the start of the meeting that the draft deal had been changed, Karasek said, “That’s a policy call, that’s not a legal call.”
Karasek clarified to The Morning Call on Tuesday that since he was only able to review the revised version with supervisor and developer input on Monday afternoon he had not yet had a chance push for his own suggested changes, which included wording that the agreement would be nonbinding but would “outline the material terms and conditions for the parties to negotiate in good faith a data center zoning amendment and a community benefits agreement.”
“However, the Board did not get that far in its decision-making process; and, more importantly, I have no idea if this language would be acceptable to Slate Belt Holdings LLC,” he said in an email.
It would have been time-consuming to incorporate news of the revisions at the start of the meeting, Friedman told The Morning Call.
He added that he felt the majority of the crowd had offered general opposition rather than suggesting specific changes to the agreement.
“No matter what was in the MOU, they didn’t want it,” Friedman said.
The spokesperson for Slate Belt Holdings wrote in a Tuesday email that the proposed agreement “grew out of the expressed desire by township officials to work together in good faith toward a resolution on a number of outstanding issues,” adding that the development team has “agreed to changes requested by the township thus far and look forward to receiving their additional feedback.”
There was no discussion Monday night of the possibility of holding a special meeting to continue discussion on the revised deal, and township Secretary Cindy Beck said Tuesday morning she has not received notice of any further public meetings beyond the board’s next regularly scheduled meeting Sept. 14.
Monday’s meeting was moved to the Mount Bethel Fire Hall to accommodate the large crowd after an Aug. 17 special meeting was canceled due to over-capacity attendance at the township building.