Attorneys Go Old School to Get Data Centers Approved
West Coast Land Use and Environment attorney Tamsen Plume was featured in a Law360 article interviewing attorneys on how they are advising data center clients and what challenges they are encountering in getting projects approved. She began by emphasizing that every jurisdiction is unique, so lawyers should expect the unexpected and be prepared to pivot quickly, comparing the land use process to a boat on open water instead of a train on straight tracks.
"It is a sailboat that is tacking across the ocean to Europe," she quipped. "You have to tack strategically as you cross the ocean. You will get to Europe. But if you put it on rails – 'go here,' like it's a train – you will find yourself in Cuba, not Europe."
Ms. Plume additionally talked about some of the hurdles data center developers face when trying to secure rezonings to land use codes and obtain permits to begin construction. Because many zoning codes do not include these facilities as a defined use, digital infrastructure projects often require full discretionary approvals from a local council or board. This makes it difficult to enter new markets, especially ones where proposals might encounter local resistance because of environmental, resource use or other concerns. Ms. Plume recommended hiring a political consultant or someone who understands the makeup of the area to help frame messaging to minimize disputes and win over authorities.
She also touched on the importance of communication with the communities surrounding proposed project sites, explaining a lack of understanding of what data centers are can trigger fears of the unknown. In addition, although security concerns are a legitimate reason to keep project details out of the public eye, delaying too long risks a media leak that can wrest control over the narrative.
"I think of data centers as Area 51 in a lot of people's minds, where they feel like it's some unknown spaceship that is landing in their backyard," she observed.
Overall, she said, although data centers are a new development in a cutting-edge digital era, the old-school principle of "do your homework" can go a long way toward success.
"[L]awyers really have to press to make sure that someone understands it and analyzes it and make sure that it's as good as it can be to avoid problems," she commented. "Really understanding who is going to challenge you will also change your strategy for what you're going to focus on, to try to either get them not to challenge you, or to settle with them if they challenge you, or to defend yourself if you know you're in for the long haul."