Owners of 4AM Development LLC intend to move forward with plans to develop a data center along Burkhalter Road on the edge of Statesboro, they said Tuesday, despite a challenge filed last week in Bulloch County Superior Court by citizens seeking to reverse the city's Aug. 18 zoning decision that could allow it.

By a 3-2 vote that included Mayor Jonathan McCollar's tiebreaker, City Council on that date approved the rezoning from "R-4" high-density residential to "O," for office and business, for the nearly 27-acre tract, owned by 4AM Development, at 6539 Burkhalter Road. Thirty days later, on Sept. 17, the nonprofit organization Coastal Communities United and 11 named individuals, including some adjacent property owners and other nearby residents, filed the petition with the Superior Court for a review of the rezoning and declaratory judgment against the city's action.

When the Statesboro Herald first reported on the legal challenge Friday, the city attorney and city manager said the city had not been served the complaint or summons. Then a deputy sheriff handed the summons Monday to a staff member at City Hall and filed the record of service with the court.

Meanwhile, 4AM Development LLC, also named as a defendant, had not been served formal notice as of midday Tuesday. But the company's two publicly identified owners, Bobby Bagwell of Appling, near Augusta, and Charles Way of Savannah, came to the Statesboro Herald office Tuesday morning for an interview about the project in general, how they got to this point and their intentions going forward.

Of course, before the interview was over, the reporters asked about the legal challenge by Coastal Communities United and other citizens.

"I spoke with our attorney yesterday. So, he is our registered agent," Bagwell said. "He has not formally been served as of yesterday afternoon. He could have gotten it this morning. He does have a copy of it. The city had been served. He had not. But we're preparing for whatever legally we need to do to combat it."

But Bagwell added that he personally was not surprised that such an action was filed.

"No, not at all, because every data center that I'm aware of coming online now, groups are meeting them with legal challenges," he said. "The Columbia County center has legal objections, the city of Augusta, Effingham County. So, I'm not surprised."

Although presented as an appeal of the zoning action and not stating a monetary claim, the complaint filed in Bulloch County by attorney Robert Fricks of Warner Robins suggests that at least some of the petitioners have "suffered damages in an amount to be determined" by a judge or jury. It refers to them as petitioners, not plaintiffs, and lists subgroups of them as "citizens and business owners in Statesboro" or "concerned owner petitioners," and "sightline owner petitioners" and others as "nearby owner petitioners."

In the closing paragraphs of the 30-page complaint, the petitioners ask 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."

'Special use' stayed?

So, the Statesboro Herald also asked Bagwell and Way if the Superior Court challenge will halt efforts they are making toward other steps of the permitting process.

"We honestly don't know," Way said. "That is the biggest question I had for my attorney yesterday for him to discuss with the city attorney and determine the path forward. The complaint has stated that it would halt any further zoning proceedings on it. I cannot say whether that's legally factual or if that's just something they're maintaining in their complaint."

The city's Technological Facilities and Data Centers Ordinance, enacted by the council with a 3-1 vote June 2, prohibited "hyperscale" data centers with campuses larger than 50 acres. As an amendment to the city's Unified Development Code, the ordinance allows "edge" data centers on tracts up to 50 acres, but only as special uses in four zoning classifications: O or "office and business," HOC or "highway-oriented commercial," LI or "light industrial," and MX or "mixed use."

As a "special use," a proposed data center is not automatically allowed in any zoning classification, but must meet requirements for a special permit, subject to City Council approval. The rezoning for 4AM Development LLC's property was approved, but not yet the special use.

"If it is required to go to a judge for some sort of ruling before we proceed with the special use permit, then we will push for that as quickly as possible and do what we have to do," Way said Tuesday.

The developers had first filed a special use application jointly with the initial application for rezoning, but the city staff asked that the two processes be separated.

"We had given all the city the information about it, the studies, the reports, all that, but it has not been entered in as a formal application or into the record because they wanted to make sure that the zoning was approved first," Way said.

The developers have not made any changes to the overall concept plan since it was presented for the rezoning. It proposes a two-story data center with each floor measuring roughly 115,000 square feet, or 230,000 square feet total. They have applied for up to 99 megawatts of electrical supply from Georgia Power, which has high-voltage transmission lines running along one side of the site, but Bagwell and Way said the actual power availability could be less, depending on what the power company approves.

The data center would have a closed-loop cooling system, as required under the city's ordinance.

"The city did come back and asked us to modify our water study to reflect irrigation use, which we are waiting on that report to come back from the engineer," Way said. "That was the only request that the city made."

Bagwell and Way — whose experience to this point is mainly with residential developments and who originally purchased the property as the site for a housing complex — have emphasized that they will not operate the data center but would sell or lease the property to one or more end users.

End-user question

As previously reported, City Manager Charles Penny during the Sept. 1 council meeting asserted that Statesboro officials will not consider the further step of approving a special use permit until after they know who the end user will be.

"Because your responsibility is to know who that end user will be for the protection of our citizens, if you don't know who the end user is and you approve the special-use permit, basically you're giving the owner a blank check," he told the council that day. "I don't believe that this council will sign a blank check."

The Herald, with the reporter and the editor taking part in the interview, asked the developers the end-user question again Tuesday.

"We've got more than one potential end user that we're talking to right now, and one I think that we're going to be very close to signing an agreement with," Way said. "But it's hard to get them to fully engage if they're not sure that you've been through the public zoning process."

Attorneys contacted

The newspaper also reached out to City Attorney Cain Smith and the developers' attorney. After Smith acknowledged that the city had been served notice regarding the legal challenge, he was asked if it would "stay" or halt the special use permit proceeding.

"No, it would not stay it alone. …," Smith said. "No injunctive relief has been granted."

In other words, that could be something for the court to decide.

Smith said he had no further comment about the legal action but that the city will respond "through the proper legal channels."

Darren G. Meadows, a partner in the Hull Barrett law firm at Augusta, is attorney and registered agent for 4AM Development LLC.

"I'm aware that it was alleged that a lawsuit had been filed, but I have not been formally served and don't have any comment on it at this time," he said mid-afternoon Tuesday.

When the reporter mentioned that a further question would be whether the suit would change anything regarding the special use permit process, Meadows said, "I've got to see the lawsuit first before I can make any comment on it, but not knowing of any basis for it, I don't see any reason why we would change our plans."

Statesboro Herald editor Jim Healy contributed to this story.