Circuit Court Judge Douglas L. Fleming, Jr. on Friday denied the Town of Leesburg’s request for an extension in answering a Freedom of Information Act request for information about Microsoft’s proposed data center near town, and ordered that information would not be covered by a non-disclosure agreement approved by the Town Council Nov. 26.
According to Fleming’s order, the town has until 5 p.m. Monday, Jan. 6 to provide Dave Gregory, the owner of the 131-acre Graydon Manor property, with the information he sought in a Freedom of Information Act request—information related to how much excess capacity the town’s sewer system contains and how much sewer service Microsoft requested from the town. “Such documents shall not be covered or protected by any non-disclosure agreement entered into between the Town of Leesburg and Microsoft Corporation, or any related entity,” Fleming wrote in his order.
The town had previously sought more time to furnish the information, seeing that Gregory had requested it on Dec. 23—a time when many town staffers were already on leave for the holidays.
Public Information Officer Betsy Arnett said that multiple town staffers were in town working over the weekend to compile a response to Gregory’s FOIA request. “It’s been a huge effort,” she said.
On Nov. 26, the Town Council voted to provide the Microsoft campus, which sits outside the town limits in the Compass Creek development but could be annexed into the town limits, with water and sewer service. On Dec. 23, the council voted to approve the five-year non-disclosure agreement with Microsoft to protect proprietary information related to the tech company’s security systems and utility usage at the proposed data center complex.
Gregory said he made the FOIA request because he wants to know how much sewer service the town intends to provide Microsoft. He said the town has treated him unfairly by approving a utility expansion to Microsoft, but pushing back on his request for additional sewer service for his plans to develop 239 co-housing units, a brewery and a winery on the Graydon Manor property. The town has served the property with sewer since 1963 at a daily rate of 765 gallons.
Gregory said that while his proposed development’s total daily sewer usage requirement would be about 100,000 gallons, it’s his understanding that Microsoft’s data center would require 10 to 20 times more daily sewer service.
According to a Dec. 30 posting by Water Technology, water demand and wastewater generation in data centers can rise to millions of gallons each day. Microsoft’s data center is expected to use hundreds of thousands of gallons of water daily to cool its servers. A report from the U.S. Department of Energy’s Lawrence Berkeley National Laboratory found that an average data center uses 0.48 gallons of water to cool every kilowatt hour consumed.
Gregory’s Jan. 2 response to the town’s petition for an extension charged that the town has “weaponized its utility system as a means of extorting owners of properties outside its jurisdiction to agree to be annexed into the town, particularly properties that provide promise of a lucrative tax base … such as data center parcels owned by Microsoft Corporation.”
The response notes that the town, in its efforts to become the sole provider of utility services in areas outside its corporate limits, has engaged in a legal battle with the county government. On July 7, 2019, the Town Council voted to bring a legal action against the county challenging comprehensive plan amendments made by the Board of Supervisors in June that granted Loudoun Water, rather than the town, the right to extend utility services to the Joint Land Management Area—area surrounding the town where county policies typically allow the town to provide water and sewer service.
“I think they’ve been treating us criminally … I think this is a contrived new effort, county and town, to prohibit Graydon’s development,” Gregory said.
In addition to battling with the town, Gregory also has sued the county government, following a determination that Gregory’s co-housing project is not allowed because it’s a misinterpretation of the zoning ordinance. A trial in that case is set for April.
Gregory’s response highlights Mayor Kelly Burk’s opposition to Gregory’s proposed development on Graydon Manor. In a May 16, 2019 email to a constituent, Burk wrote that the town is legally obligated to convey sewer service to Graydon Manor, since the property’s deed states that the easement is perpetual and runs with the land. “So we cannot stop the sewer from the project. Damn,” Burk wrote.
Burk said that specific email related to a dog kennel the county Board of Supervisors had approved Gregory to build on the property, and had nothing to do with the sewer service that might be needed for Gregory’s proposed co-housing village.
Burk also pointed out that Graydon Manor sits within the county’s Rural Policy Area, where the town is only required to serve with utilities if it’s intended for public facilities, like schools and government buildings.
“They’re comparing things that aren’t really accurate,” she said. “People need to understand that.”
While it’s still unclear exactly how much sewer service Graydon Manor or Microsoft will require from the town, revenue in the forms of utility system upgrades and connection fees from both are more certain.
Leesburg Utilities Director Amy Wyks said in September that, although she was unsure whether the town would need to install more or larger sewer pipes to provide Graydon Manor with the added sewer capacity, she said the existing 56-year-old pipe that extends to the property might need to be repaired. While that tab would most likely fall in the town’s lap, Gregory said he would “happily pay it.”
Arnett said the town cannot state with certainty what the extent of those repairs or upgrades might be.
If the town were to extend additional sewer service on Graydon Manor, Gregory would also be required to pay connection fees.
Meanwhile, according to Councilman Josh Thiel at the Nov. 26 council meeting, Microsoft plans to pay for the design and construction of the utility extension needed to connect its data center with the town’s system. It also plans to pay $2.4 million in water and sewer connection fees.
Gregory said that, while he’s confident the town’s response to his FOIA request this afternoon will contain redacted information, which could put both parties back in front of a judge, he’s hoping the matter won’t be too dragged out. “We are in it until it’s done,” he said.
As the town and Gregory continue their dispute, the Town Council is focusing on annexing the entire 550-acre Compass Creek development, which features a Walmart Supercenter and the ION International Training Center, and is approved for construction of 2.5 million square feet of office space, 550,000 square feet of retail development, 300,000 square feet of flex-industrial uses and a hotel. The Town Council is additionally expected to soon review a rezoning and special exception applications that would bring four drive-through restaurants to the development.
Reporter Kara Clark Rodriguez contributed to this story.
This story was updated at 4:27 p.m. Jan. 6.