Released records: Amazon had hand in drafting data center zoning policy

Jun. 16—Records released Thursday by Frederick County in response to a court order show that Amazon Web Services representatives played a role in developing county zoning policy and that at least one county planner expressed concerns about keeping Amazon's involvement behind closed doors.

The Sugarloaf Alliance has frequently alleged that Amazon was involved. The county has not publicly confirmed that, but the newly released documents make clear Amazon's involvement.

Amazon Web Services sought to build a $30 billion data center project in Frederick County, which fell through in 2021, in part because Amazon and the county government couldn't reach an agreement on the project's timeline.

Last week, a judge ordered that the county release nearly 800 pages of records to the Sugarloaf Alliance, which it has done. The exception is 13 records that the judge will review at a hearing in August to determine if they, too, should be released.

The Sugarloaf Alliance filed two public records requests in October 2021, seeking information about the development of the Sugarloaf Area Plan. The group sued the county in June 2022, alleging that the county's response to the requests was incomplete.

The Sugarloaf Treasured Landscape Management Plan, known as the Sugarloaf Area plan, seeks to protect environmental resources and preserve the rural character of the Sugarloaf Mountain area.

The release of the records comes after the Sugarloaf Alliance previously alleged that changes to the boundaries of the Sugarloaf Area Plan — the removal of a swath of land west of I-270 from the plan's protected area — were part of backroom discussions that happened so Amazon could build data centers on that land.

The Frederick County Council voted unanimously on March 15, 2022, to adopt a critical digital infrastructure (CDI) amendment to the county code. The adopted bill added critical digital infrastructure as a new use for certain zoned areas, and governed how and where facilities like data centers can be built in the county.

The policy on critical digital infrastructure sets rules that apply to current efforts by Quantum Loophole to build data centers in the county. Quantum Loophole plans to build a large campus of data centers on the former Alcoa Eastalco site near Adamstown.

In March 2021, prior to the council's adoption of the CDI legislation, the county staff exchanged emails about a draft map marked with proposed areas to be zoned under a CDI category, the released records show.

One such piece of land is west of I-270, in the same area that Sugarloaf Area Plan proponents claimed land was removed from the plan's boundaries to allow data center development.

Some newly released records reveal internal discussions in which county employees provide different reasons to explain delays in presenting a draft of the Sugarloaf plan to County Council members and residents.

In an email on April 12, 2021, Ragen Cherney, the Frederick County Council's legislative director and chief of staff, asked Rick Harcum how to respond to a County Council member's inquiries on why employees had not yet presented a draft of the Sugarloaf plan.

Harcum served as the county's chief administrative officer before retiring in 2023.

In an email the next day to Steve Horn, the director of the county's Planning and Permitting Division, Harcum wrote, "Is it safe to just say that your staff have had other work priorities that have temporarily delayed this?"

"I think that's fair and correct," Horn's response read. "I was concerned we'd get some inquiries like this when we postponed it."

But in an email from the previous week, Horn attributed the delay to data center development initiatives.

"Forward progress on the Sugarloaf Plan was halted while we sort through the specific properties under consideration for the data centers initiative," Horn's email to county employees on April 6, 2021, said.

In an email to The Frederick News-Post on Friday, former County Council member Kai Hagen, D, said the conflicting information in the records points to the county concealing developments related to data center zoning.

During his tenure on the County Council, Hagen was an outspoken supporter of the Sugarloaf plan and advocated against removing the swath of land west of I-270 from within the plan's boundary.

"The public and local organizations were misled and lied to about the reason for the delay," Hagen told the News-Post. "It's damning and it's upsetting."

Hagen said county officials were bound by a nondisclosure agreement with Amazon, which is why they could not publicly reveal the company's involvement or the county's steps on data center development.

Among the previously withheld records are multiple emails pointing to the fact that Amazon was included in internal county discussions to develop the legislation on CDI zoning that the council later adopted.

In an email on April 12, 2021, Michael Wilkins, the county's director of development review and planning, sent an attachment to several other county employees titled "County response to comments on the draft Critical Digital Infrastructure bill."

The attachment references Bruce Dean, an attorney specializing in real estate transactions, providing feedback to the county on behalf of Amazon.com Services LLC.

"On March 23, 2021, Bruce Dean provided a list of suggested changes to the county's draft CDI language on behalf of Amazon.com Services, LLC and Rodgers Consulting," the email attachment reads.

Among Dean's suggestions to the county on the policy included adding nongovernmental electric substations as a principal use. The final adopted amendment includes the definition of a critical digital infrastructure electric substation and applicable provisions and design requirements.

Earlier drafts of the policy from February and March, prior to Dean's suggestions, did not mention electric substations.

Other records reveal that some county employees expressed concerns about keeping Amazon's input in the county's CDI drafting process out of public view.

In a Feb. 19, 2021, email to Kimberly Brandt, then the head of the Livable Frederick Planning and Design Office, Wilkins wrote, "Had a scary thought ... based on the definition of CDI and what we have written to date for the FZ [floating zone], how will we address allowing other uses in the FZ such as parks, Ag processing and other AG uses that have been discussed? Its not something we can easily address without letting the cat out of the bag."

A floating zone is one designated for a particular purpose and given zoning guidelines, but whose specific location will be determined in the future, according to the American Planning Association.

In a response the same day, Brandt said, "I know ... I've wondered how long we're going to be able to get away with 'critical digital infrastructure' before we're pressed on what exactly this is all about."

In a separate email to Brandt on March 29, 2021, Tim Goodfellow, then a county planner with Livable Frederick, questioned why the proposed CDI changes were not being made through a public process as part of the Sugarloaf Plan, and instead were happening behind closed doors.

"I have concerns about the process and timing of this initiative," Goodfellow's email said. "The question for the planners is how to achieve the administration's desire for establishing these digital infrastructure areas in a manner that is open and transparent, and does not subject me, you, and the Planning Department to charges of secrecy, insincerity, obfuscation, dishonesty, or even deception."

More Amazon references also appear in the records. In an email from Wilkins to county planning employees on March 11, 2021, Wilkins wrote: "Please find attached the draft language for Critical Digital Infrastructure that may be shared with AWS. As I recall, Helen is going to pass this along to them."

Helen Propheter, who was copied on Wilkins' March 11 email according the released records, was executive director of the county's Economic Development Office before retiring in April 2022.

Former County Executive Jan Gardner, D, who was in office when the newly released emails were exchanged, could not be reached for comment on Friday.

Gardner's term as county executive ended December 2022, when her successor, Jessica Fitzwater took office. Fitzwater, D, previously served on the County Council from 2014 to 2022.

On Friday afternoon, the News-Post sent questions to the county seeking comment on several topics, including whether the county had a nondisclosure agreement with Amazon; when Amazon first approached county officials about a possible critical digital infrastructure project; and whether County Executive Jessica Fitzwater had any comment on Amazon's involvement in the creation of the CDI policy.

Chloe Scott, Frederick County's public affairs specialist, wrote in an email that the county needed more time to gather relevant information and will provide "substantive responses" early next week.

"We appreciate the FNPs desire to get good information to their readers and want to make sure when we respond that we are providing accurate information to their questions which will unfortunately take a bit of time for us to gather all the relevant information," Scott wrote. "We look forward to getting substantive responses to their questions early next week and hope that they'll run an additional story at that time."

Sugarloaf Alliance President Steve Black speaking at a community meeting Thursday evening announced to the audience that the alliance will be reviewing documents through the released records in the coming days.

Black said records showing that Amazon provided suggestions on the county's draft legislation confirm to him that Amazon played a large role in shaping the CDI policy.

"They are literally at the table drafting legislation for the county. That doesn't sound right to me," he said.