Why Should Delaware Care?
The development of data centers has become a hot button topic, because they are powering the technology of the future but require huge amounts of electricity to power computer servers 24/7. After a major project was proposed to be built near Delaware City, the New Castle County Council has been debating whether to place new restrictions on the nascent industry.
The New Castle County Council was already scheduled to vote Tuesday night on a controversial proposal to regulate the booming data center industry that has come to its doorstep, but now a newly filed, last-minute amendment aims to further inflame the debate.
Councilwoman Janet Kilpatrick, an outgoing lawmaker who has been one of the most vocal supporters of the data center industry, filed an amendment Friday evening seeking to allow major and minor subdivision plans in the county’s development pipeline to be permitted to convert to data center projects without adhering to the new limits.
That proposal could open up plans for warehouses or other commercial or industrial properties to switch to data centers.
It was immediately criticized by supporters of the regulatory measure, including the original ordinance’s author Councilman Dave Carter and the Sierra Club of Delaware.
“It not only guts the proposed legislation, it goes far beyond and gives developers even more rights than they have now for data center development,” Carter told Spotlight Delaware on Monday.
In defense of her proposal, Kilpatrick said that New Castle County had to be consistent with its regulatory burden on development. She argued that developers who submitted a subdivision plan a year ago would not have had any data center regulations to adhere to, and therefore she felt it was unfair to impose them after the fact.
Far too much debate among council members about what projects would be exempted under the new regulations convinced her to file an amendment making it clear, Kilpatrick told Spotlight Delaware.
While Project Washington, the hyper-scale data center project planned near the Delaware City Refinery, has long been understood to be exempted because it predated the debated ordinance, whether other projects would be exempted has been more unclear.
A second amendment filed Friday by Councilman John Cartier would establish the effective date for the regulations as Aug. 5, 2025 – or when Carter filed the original ordinance.
That could imperil a data center planned near Newark, which was filed in December, but another project near the St. George’s Bridge could be saved by Kilpatrick’s amendment, as the project has lingered in the development pipeline since 2024.
It’s unclear whether either amendment could garner a seven-vote majority of the 13-member council. Without Cartier’s amendment, the regulations bill would be effective at the time of signing.
Either way, Carter said he is pushing through the last-minute drama to a vote Tuesday because “waiting any longer is not going to change anything.”
“Tomorrow everybody is going on the record,” he said. “Whether it will pass or won’t pass, I don’t know, but the public will know where they stand.”
Advocates, opponents line up
At a March 3 committee meeting, prominent Wilmington land use attorney Shawn Tucker, who previously managed the county’s Department of Land Use and now represents developers before the county, warned that applying the regulations to any project retroactively could end in a lawsuit.
He cited a precedent-setting 2002 Delaware Supreme Court case that advised balancing the concerns of the community versus the amount of money developers spend in the pre-development process. Noting that he represented several potential data center projects, the reference could be warning of future litigation.
But Kilpatrick’s proposed amendment also drew swift scrutiny from environmental stakeholders in the state, who long have supported Councilman Carter’s fight to regulate data centers.
Dustyn Thompson, chapter director of the Sierra Club of Delaware, said Kilpatrick’s proposed carveouts to the regulations were unprecedented.
“That is extreme at best, and certainly not something that we’ve ever seen happen at council before,” he said.
While Thompson admitted that including a retroactivity clause within the ordinance could open the county up to litigation, he questioned how Kilpatrick’s amendment works to avoid legal blowback.
“I don’t think we need her amendment to avoid a lawsuit because we’re allowed to set standards for development moving forward,” Thompson said. “That’s within the county’s jurisdiction. So that’s sort of a ridiculous talking point aimed at the ordinance itself.”
The Sierra Club is hosting a protest at 5:30 p.m. Tuesday, ahead of the county council meeting, in support of Carter’s proposed regulations and against Kilpatrick’s amendment.
Thompson said he hopes to show Kilpatrick, and other critics on the council, that data center regulations have a wide base of support in New Castle County. The Sierra Club has knocked on more than 3,000 doors, and had more than 1,500 residents show their support for the regulations at the county level, Thompson said.
“The whole point of us coming out before the [meeting] is to just, once again, show that we’re not making this stuff up, right?” Thompson said. “Communities want this. In every single public session that has been out since this ordinance came out has been the same.”
Get Involved
The New Castle County Council will meet at 6:30 p.m. Tuesday, March 10, in the Louis L. Redding City County Building, located at 800 N. French St. in Wilmington.
See the agenda and virtual meeting information here.