Lowndes County Commission sued over approval of hyperscale data center

HAYNEVILLE — A lawsuit filed Sunday alleges that the Lowndes County Commission’s approval of a 2,200-acre hyperscale data center — which would be Alabama’s largest — violated the Alabama Open Meetings Act. 

The commission last week approved Project Red Clay and a $1.15 billion tax break for the facility, surprising residents, advocates and two commissioners who voted against the proposals. 

The lawsuit came days before a standing-room only special meeting of the commission Tuesday morning, in which at least 125 county residents crowded into the commission’s regular meeting place. The commission has been forced to a larger space for previous meetings to accommodate crowd sizes.

According to the proposal, the project will operate 24/7. It requested 1,500 megawatts of energy capacity from Alabama Power, enough to power roughly 1 million homes. The entire state of Alabama has about 2 million households and about 2.4 million housing units.

The center’s planned location is along U.S. Hwy 80 and Alabama Hwy 21 in unincorporated Lowndes County, which runs along the historic Selma to Montgomery trail.

Rep. Prince Chestnut, D-Selma, the commission’s attorney, told the governing body that the only options for the commission Tuesday morning were to approve the minutes of the prior meeting, or table them for a future meeting. The commission meets on Monday for its next regular meeting. The lawsuit was not addressed. 

“The only thing that you could take up is possibly considering the minutes, to adopt the actions taken at the Oct. 13 meeting, because that would be consistent with authorizing related actions,” Chestnut said. “It would be the will of the commission.”

In quick succession, Commissioner Robert Harris motioned to approve the minutes of the prior meeting and Commissioner Dickson Farrior, the vice chair, moved for a point of order.

“This matter has already been decided. The Lowndes County Commission has a special meeting, and it wasn’t posted on the door right there for the minutes to be dealt with,” Farrior said.

Under Alabama law, county commissions can only address or act on what is on the agenda for a special called meeting. The notice posted on the entrance to the commission’s meeting room said the body would “consider adoption of resolution and order authorizing execution and delivery of  a project development agreement and a tax abatement agreement for Project Red Clay and Authorizing Related Actions.”

Lowndes commission approves $1.15 billion tax break for a data center despite pushback

Commissioner Charlie King, Jr., the chair, moved to approve the minutes until Farrior objected. 

“I don’t have to rule on what you just brought up. You need to make a motion on what you just brought up. You just made a statement, and you’re entitled to your statement,” King said to Farrior.

Farrior then moved to table the minutes, which failed 2-3. The minutes were approved 3-2. King then adjourned the meeting. As the commissioners left, the crowd called out praises for Farrior and Commissioner Joseph Barganier, who voted with Farrior each time, and heckled the other commissioners.

“We’re proud of you,” one called to Farrior and Barganier.

“We’ll visit you in jail,” another called to the other commissioners.

The commissioners, except for Farrior and Barganier, signed the minutes immediately after the meeting adjourned. Farrior said that has never happened before. 

King, Harris, Chestnut and Commissioner Fletcher Hayes declined to comment on their way out of the room. 

Ryan Anderson, an attorney with the Southern Environmental Law Center, questioned the legality of the commission’s actions in an interview after the meeting.

“The (commission) attorney’s position, from what I can tell, is that approving last week’s minutes was a related action authorizing the tax abatements, but I think that there could be a legal question there of if it really falls into the meaning of ‘authorizing related actions,’ as Commissioner Farrior pointed out,” she said.

She said approval of the minutes would have been legal at Monday’s meeting, and approval of the project proposal and tax break were legal since the meetings are regular. 

Lowndes County residents demand transparency in hyperscale data center development

Farrior said in an interview after the meeting that he looked up the section of Alabama’s law applicable to special meetings of county commissions in preparation for the meeting. He represents the northeastern portion of the county, where the data center’s proposed location is. 

“In fact, I looked it up last night,” he said. “It was on the agenda, but it was not on the notice. This is the notice right here that was put on the door.”

Barganier, who represents the southern portion of the county, said in an interview after the meeting that he voted against approving the minutes to try to stall the data center.

“It being in the middle of the county, that’s the fastest growing area in Lowndes County, or the only growing area in Lowndes County, and now it’s gonna kill that,” he said. “I guess they should have put it in a different place.”

The lawsuit was filed on behalf of two residents, who seek relief through halted commission votes and civil penalties, according to the complaint. 

On Monday, presiding Circuit Judge Cleveland Poole recused himself from the case. As of Tuesday afternoon, another judge has not been assigned.

Barganier said that many of his constituents, who do not live near the proposed site, have asked him to oppose the development because of its location. In addition to its historic significance, it is also the most populous area of the county. 

Lowndes County, like many counties in the Black Belt, has seen a population decrease between 2010 and 2020. But the census tract at the proposed location of Project Red Clay via the U.S. Census Bureau is the most densely populated part of the county, 21.7 people per square mile. Other tracts in the county are 14.8, 12.3 and 9.7 people per square mile. 

“If they got out somewhere where nobody was around or something, I would probably go for it,” Barganier said. “But 254 houses. They’re gonna disturb those families for the rest of their lives.”

Farrior said he wished the commission would have debated the project proposal and tax breaks before they voted on them, but that opportunity was not given.

“There’s issues about the water, there’s issues about the power, there’s issues about the environment, there’s issues about the property values and the health of the people that live around there, and none of that’s been dealt with,” he said. “It was just thrown in our face for us to vote on, and it’s something that should have been talked about before it was voted on, but it was just pushed through.”

John Urquhart, a Lowndes County resident who lives next to the proposed data center site, said in an interview that he “didn’t expect any less” from the commissioners on Tuesday, but he is very proud to be represented by Farrior. 

“So, so proud of our commissioners, Farrior and Barganier, and how they stood up for us. To see them refuse to sign those documents at the end of that meeting. That’s the gentleman we need sitting on those seats,” Urquhart said. 

Urquhart is part of a resident coalition called Protect Lowndes County that has been pushing back on Project Red Clay for months. He said that while there are likely no more commission votes left, Protect Lowndes County’s work is not done.

“It’s probably going to only help our cause,” he said. “Protect Lowndes County is so much more than this … Going forward, we got a lot more we want to do. We want to see these offices cleared up. We want to see the commission be like it should, representing the county.”

Key points box written by Editor Brian Lyman.