Statesboro’s city government, through City Attorney Cain Smith, filed a response Oct. 19-21 in Bulloch County Superior Court to a lawsuit seeking to reverse the city’s Aug. 18 rezoning of a 27-acre tract on Burkhalter Road to “O” or office at the request of data center developers.
Meanwhile, Smith says that processing by the city of any further application by the property owner and potential developer, 4AM Development LLC, for a special use permit required for a data center “would continue to be stayed.” In other words, unless the court upholds the zoning or until it issues some other go-ahead, the mayor and council apparently won’t be holding a hearing to consider issuing a permit, even if 4AM Development, whose publicly identified partners are Bobby Bagwell and Charles C. Way, try to submit a completed application.
The Data Centers Ordinance, enacted in June by a 3-1 vote of City Council as an amendment to the Statesboro Unified Development Code, allows data centers as a special use in four non-residential zoning classifications. However, “special use” means that a data center will not be automatically allowed. Instead, plans for any particular site must meet special requirements for a permit to be issued by the council on a majority vote.
Way and Bagwell, whose company reportedly includes two other investors, propose locating a 230,000-square-foot data center on the site at 6539 Burkhalter Road, and have applied to Georgia Power for an up to 99-megawatt electrical supply. City Council’s Aug. 18 vote approving the rezoning from “R-4” high-density residential to “O” was 3-2, including the mayor’s tiebreaker.
Original complaint
But on Sept. 17, the nonprofit organization Coastal Communities United and 11 named individuals, including some adjacent property owners and other nearby residents, filed a petition in the county Superior Court for review of the rezoning and a declaratory judgment against the city’s action.
Although worded in some ways like a standard lawsuit, the “petition for review” signed by attorney Robert Abney Fricks Sr. of Warner Robins identified his clients as petitioners rather than plaintiffs. But it named both the city, as a municipal corporation, and 4AM Development as defendants. It asserted that the petitioners would suffer damages “to be determined” but asserted no monetary amounts.
In the closing paragraphs of the 30-page complaint, the petitioners asked that the court declare the city zoning decision “invalid, void or stricken.” Citing a provision of state law, the complaint also asserts that filing such a challenge should “stay all legal proceedings in furtherance of the action.”
4AM’s previous answer
As previously reported, 4 AM Development LLC, though William J. Keogh III, of the Augusta-based Hull Barrett law firm, then replied with an Oct. 6 "motion to dismiss and request for expedited hearing.” Points of that motion were reported by the Statesboro Herald in an Oct. 12 story.
At that time city officials had not filed a separate answer, but Smith said the city would have to do so or face a “default judgment” and would answer by a 30-day deadline from having been served notice of the suit. Notice had been served Sept. 21 at City Hall.
The city’s answer, signed by Smith as submitted to the court Oct. 19 and stamped at the clerk of court’s office Oct. 21, runs to 16 pages. It parallels the 4AM Development response in some ways, such as by asserting that the nonprofit organization and the 11 property owners or neighbors at various distances from the site lack legal standing to challenge the zoning decision.
The city’s answer
But the city’s response differs from the developers’ in other ways, such as by asserting a defense of sovereign immunity.
The city’s “first defense” is simply: “The Petition fails to state a claim upon which relief can be granted and thus should be dismissed.”
The “second defense” is that the petitioners allegedly lack standing. “Petitioner Coastal Community United should be dismissed from this action,” Smith has asserted in the city’s written answer. “An organization cannot obtain standing merely by asserting its members’ rights. It must establish a cognizable violation of its own rights under an available standing theory.”
He cites the 2025 opinion of the Georgia Supreme Court in a case called Republican National Committee v. Eternal Vigilance Action Inc. in support of this.
Smith then cites the state high court in a different decision, from 2006, as holding “that a plaintiff cannot avoid zoning-standing requirements merely by seeking equitable relief or asserting an interest in enforcing zoning laws.”
The city’s fourth defense, the one claiming sovereign immunity, is aimed at an assertion in the petitioners’ complaint that the rezoning decision amounts to an “inverse condemnation” by reduction of nearby property values.
“Petitioners do not allege and cannot show that private property has been taken for public use, nor does the City maintain any control or interest in the rezoned property; the city is therefore immune from claims for inverse condemnation,” the answer asserts.
The city’s “fourth defense” briefly echoes a point of the developers’ motion, that petitioners “are barred from making a Constitutional attack for the first time before the Superior Court.” In other words, the defendants assert that the citizens should have stated a constitutional basis for their objections during the rezoning hearings.
But then the city’s “fifth defense” claims that the petitioners’ complaints “are not ripe for adjudication” because the data center project “cannot be undertaken without the issuance of a special use permit by the Mayor and Council.”
The city’s answer continues through 12 stated “defenses,” most very short and direct. But the 12th goes on to list 115 specific points from the petitioners’ complaints as “denied” or “admitted.”
It ends with a request to the court dismiss the petition and require the petitioners to pay all costs of the action.
Penny’s statement
In the weeks since the city’s answer was filed, City Manager Charles Penny spoke near the conclusion of the Nov. 3 council meeting to counteract “untrue statements” he said had been made, particularly in some emails, about the city’s role in the data center project.
The owners of the Burkhalter Road property had come to city staff about a year ago and asked if the property could be rezoned for a data center, he noted. After researching the issue, city staff members recommended an “office” zoning, and the mayor and council first approved the ordinance, in June, and then the rezoning.
‘Incomplete application’
“Nothing else has happened since that time,” Penny said. “The ordinance requires a special use permit. When the people submitted the application for the rezoning, they submitted an application (for the special use) but it was an incomplete application. We have done nothing else on a data center.”
The work that city Planning Development Director Justin Williams has done on this project is in line with what he does for any developer toward any projects in the city, Penny said, and added that the city has not run water and sewer or natural gas or done anything else for the developers. Some very distrustful people, he said, had made it sound as if the city were doing something illegal, which is not the case.
“This email said, ‘Justin Williams is working in the background,’” Penny said. “Justin Williams is doing his job. His job is to identify the appropriate land use, and I don’t even know if he can recommend a special use permit, but we aren’t there yet. But when that happens, the public will be given notice, they will be able to go to the Planning Board, and then they would come to the mayor and City Council.”
When the Coastal Communities United petition was first filed, Smith at first said he saw no reason yet to change the city’s procedures.
Action ‘stayed’
But after notice was served on the city and the developers filed their response, Smith said, “We are staying all action regarding the processing of any special use permit,” as quoted in the Oct. 12 story.
Last week, the reporter asked him again in relation to Penny’s comments and the city’s answer to the legal challenge.
“Processing of any application would continue to be stayed,” Smith replied Friday.
As of Monday, the Superior Court’s online database, accessed through the PeachCourt service, displayed documents up to and including the city’s answer. But no scheduling orders appeared there yet, and Smith on Friday said he had no updates regarding a hearing.