Proposed Amendment
to Bill No. 26-011

Section I

The Legal Vulnerability of Bill 26-011

Bill 26-011 adds one sentence to the Harford County Zoning Code:

This language contains no operative definitions, no size thresholds, no functional distinctions, and no measurable performance standards. It treats a 500-megawatt hyperscale AI training campus the same as a small air-cooled telecommunications switching station. That equivalence is legally indefensible.

It is also worth noting that under current law, data centers are not specifically permitted in Harford County's zoning code. They were never listed as a permitted use. That means right now, before this vote, there is no legal opening for a developer to exploit. The moment a vaguely worded ban passes, that changes — because now there is written law to challenge.

Four Grounds for Constitutional Challenge

• Vagueness. The term “data center” is undefined in the Harford County Zoning Code. A single undefined term in a zoning ordinance creates a vagueness challenge under the Due Process Clause of the Fourteenth Amendment. Courts have struck down zoning ordinances on precisely this basis.
• First Amendment exposure. Legal analysts at WilmerHale (February 2026) have flagged that blanket data center bans face viable First Amendment challenges on the theory that restricting infrastructure through which digital communication flows may burden protected speech, analogous to the Supreme Court's reasoning in Preferred Communications, Inc. v. City of Los Angeles.
• Overbreadth. A blanket prohibition that captures constitutionally protected uses alongside unprotected ones is subject to facial overbreadth challenge. A developer's counsel may argue the ordinance sweeps in low-impact telecom infrastructure that serves no legitimate regulatory interest distinct from the county's stated concern over hyperscale AI facilities.
• Adverse precedent risk. A federal court ruling against an overbroad ordinance does not merely invalidate this bill. It establishes precedent that every future developer in this county can cite. The county would be worse off than had it enacted no ordinance at all.

Section II

The Existing Model: 2606 Carsins Run Road

Harford County does not need to construct a regulatory model from scratch. A fully operational, low-impact telecommunications facility already exists within county limits and has done so without incident. The MCI facility at 2606 Carsins Run Road operates immediately adjacent to the Stoney Demonstration State Forest.

This facility is the real-world standard on which this proposed amendment is based. Any applicant seeking a permit under the amended ordinance must demonstrate that their proposed facility is functionally equivalent to or more restrictive than this standard.

Existing facilities like MCI are grandfathered under this amendment. The standards described below apply to any new permit application.

Section III

The Proposed Amendment

The amendment replaces the single-sentence prohibition with a defined, tiered regulatory framework built around four elements: a functional definition of the only permissible use, physical development standards tied to parcel size, a mandatory conservation easement requirement, and an annual inspection and enforcement regime.

3A — Permitted Use Definition

The only permissible data center use in any zoning district is low-scale telecommunications processing — defined as the passive routing, switching, and transmission of commercial telecommunications traffic. This definition is intentionally drawn to mirror the operational profile of the MCI facility at 2606 Carsins Run Road.

The following uses are expressly and permanently prohibited by name and function:

• Hyperscale data centers of any kind
• Artificial intelligence model training facilities
• Artificial intelligence model inference facilities
• Cloud computing campuses
• Cryptocurrency mining facilities
• Any facility drawing a 30-day rolling average power load exceeding 5 megawatts at the utility interconnect
• Any facility using water-based cooling systems, including evaporative cooling towers, liquid immersion cooling, or direct liquid cooling

3B — Physical Development Standards

The development footprint cap is the lesser of 3% of total parcel area or 125,000 square feet. The 125,000 sq ft figure is an absolute hard ceiling regardless of parcel size.

Additional standards: maximum structure height 35 feet; minimum 500-foot setback from all parcel boundaries; minimum 300-foot setback from any waterway, wetland, or floodplain. No phased development that cumulatively exceeds the cap. No post-application subdivision of the parcel.

3C — Mandatory Conservation Easement

All acreage beyond the approved development footprint must be permanently protected under a conservation easement held by the Maryland Environmental Trust (MET) before any building permit is issued. The easement is perpetual and may not be modified without approval of the Board of Public Works and the Harford County Council.

3C(i) — Tax Incentives for Participating Landowners

3D — Annual Inspection and Compliance

All permitted facilities are subject to mandatory annual inspections. Each inspection verifies five independently measurable criteria grounded in existing regulatory frameworks:

• Power Usage Effectiveness (PUE) ≤ 1.4 — 12-month rolling average at the utility interconnect, consistent with EU Energy Efficiency Directive 2023/1791. Any hyperscale AI facility would exceed this threshold.
• Water Usage Effectiveness (WUE) ≤ 0.5 L/kWh — Effectively mandates air-cooled operation without specifying cooling technology, which is more legally defensible than a technology mandate.
• Power draw ≤ 5 megawatts — Measured as a 30-day rolling average at the utility interconnect. The utility provider is required to report any exceedance directly to the county within five business days.
• Equipment inventory — All IT equipment documented annually. Presence of GPU clusters, AI accelerator hardware, or large-scale server infrastructure constitutes a violation regardless of how the operator labels the use.
• MDE permit currency — Current compliance with all Maryland Department of the Environment permits governing air quality, stormwater, and site conditions.

Inspection Fee Schedule

Fees are indexed to CPI and may be adjusted by County Council resolution without amending this ordinance. Fee revenue funds the inspection program.

The county may conduct unannounced inspections with 24-hour written notice upon receipt of a utility power exceedance report, a credible written complaint, an operator reporting failure, or any MDE enforcement action against the facility.

Section IV

Violations, Enforcement, and Penalties

Violations are classified into three tiers based on severity and intent. The penalty structure is proportionate, escalating, and consequential at a commercially meaningful scale.

Section V — Anti-Circumvention Provisions

The following provisions close foreseeable methods of evading the ordinance's intent:

• Anti-subdivision. No lot split or conveyance after permit application until the conservation easement is recorded. Any subdivision in the 24 months prior to application that reduced a qualifying parcel below the 100-acre minimum is subject to review for circumvention intent.
• Anti-phasing. Multiple permit applications on a single parcel or contiguous parcels under common ownership may not cumulatively exceed the 125,000 sq ft cap.
• Functional use definition. Permitted use is determined by operational function, not by what the applicant calls the activity. Equipment consistent with prohibited uses constitutes a Tier 3 violation regardless of labeling.
• Utility reporting. The utility provider is required by condition of service to transmit monthly power consumption records directly to the county. Self-reported figures may not substitute for utility-reported figures.
• Successor liability. All permit conditions, inspection obligations, and penalty exposure transfer to any successor owner or operator. Change of ownership does not extinguish obligations.
• No variance pathway. No variance, special exception, or administrative waiver may be granted from the 125,000 sq ft cap, the 100-acre minimum, the conservation easement obligation, or the 5 MW power limit. These are absolute regulatory floors, not guidelines.

Section VI — Financial Analysis

This amendment is not a prohibition on all economic use. A 125,000 sq ft telecommunications facility represents a $40,000,000 to $60,000,000 development opportunity. The mandatory conservation commitment unlocks a multi-decade package of state and federal tax benefits. The annual inspection fee of $8,750 is commercially immaterial at this revenue scale.

Appendix A

Proposed Ordinance Language

The following is proposed amendment language for incorporation into Chapter 267, Zoning, of the Harford County Code. It is offered as a drafting framework for review by the Office of Law and is intended to replace the single-sentence text in Bill 26-011 as introduced.