Bill No. 26-011
Has Passed. Now Defend It.

Section I

The Bill Passed — Here Is What Comes Next

The text that passed 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 the crack a legal challenge will walk right through.

It is also worth noting that before this vote, data centers were not specifically permitted in Harford County's zoning code — there was no legal opening to exploit. Now there is written law to challenge. A successful challenge does not just invalidate this bill. It sets precedent every future developer can cite.

The Four Angles a Challenge Will Use

• 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) 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 can 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 every future developer in this county can cite. The county would be worse off than had it enacted no ordinance at all.

What Makes an Ordinance Defensible

The amendment framework submitted at the June 9 hearing addresses each of these vulnerabilities directly. It replaces the single-sentence prohibition with precise, measurable language that defines exactly what is banned and why — making it structurally resistant to each challenge vector above.

• Definitions close the vagueness door. Every term that matters is defined. “Prohibited data center use” is defined by function, power draw, cooling method, and equipment type — not by what an operator calls it.
• Measurable standards survive scrutiny. Courts uphold zoning standards tied to specific, independently verifiable numbers. PUE, WUE, and megawatt thresholds are all auditable. Undefined categorical bans are not.
• A narrow permitted pathway removes the overbreadth argument. By defining what is allowed — a low-scale facility functionally equivalent to the existing MCI installation at Carsins Run Road — the ordinance can no longer be characterized as sweeping in protected uses.
• Anti-circumvention provisions close the loopholes. The framework addresses subdivision gaming, phased applications, successor liability, and operational redesignation. There are no quiet workarounds.

Section II

Why This Document Changes Everything - Case No. 5970

Before getting into what should be prohibited, it helps to understand what is already here. Harford County has one existing data center facility operating within county limits. The details below describe its footprint, operational profile, and impact — or lack of it.

The MCI facility is already defined as a data center in Harford County records.

In October 2022, the Harford County Zoning Hearing Examiner approved an expansion of the MCI telecommunications facility at 2606 Carsins Run Road, the same facility this amendment uses as its operational ceiling. That decision, Case No. 5970, is now part of the public record and it reveals something important about how Harford County has managed this type of facility for decades. The Zoning Hearing Examiner's decision explicitly calls it a "communications station/data center" and references Section 267-4 which defines a Data Processing Center as "a facility equipped with, or connected to, one or more computers, used for processing or transmitting data." That definition already exists in county code. The new bill's definition and the existing code definition now need to be reconciled carefully or a developer's attorney uses the inconsistency against the county.

The MCI facility has existed in some form since the late 1960s. It has survived through a series of Board of Appeals special exceptions granted in 1983, 1986, and 1987, and was classified as a non-conforming use after the 2008 zoning code changes. It sits on 34.5 acres and now contains approximately 114,000 square feet of improvements. The county has managed it not through clear written standards, but through a series of one-off decisions made case by case over forty years. When a neighbor raised concerns about stormwater runoff, erosion, Chesapeake Bay watershed impact, generator noise, and light pollution at the 2022 hearing, the Hearing Examiner largely dismissed those concerns as unsubstantiated. Not because they were unreasonable concerns. Because there were no specific written standards against which to measure them. The county had no power draw limits, no water monitoring requirements, no annual inspection regime, and no enforceable environmental performance standards for this facility. It still does not. That is exactly the gap this amendment fills. Every inspection criterion in this amendment, including power usage effectiveness, water usage effectiveness, equipment inventory verification, utility reporting, and MDE permit currency, directly addresses a concern that neighbors raised at that 2022 hearing and were told could not be proven. The amendment does not reinvent the standard. It writes one down for the first time. There is one additional fact this document confirms that the amendment accounts for directly. The MCI facility sits on 34.5 acres, well below the 100-acre minimum parcel requirement proposed here. The amendment grandfathers existing facilities like MCI. They are not required to meet the new parcel standard retroactively. But any future applicant seeking to build a new facility in Harford County will be held to a standard that ensures the surrounding land is permanently protected, not managed through a forty-year series of variance requests with no enforceable conditions.

Section III

The Regulatory Baseline: 2606 Carsins Run Road

The amendment framework uses a real, operating facility as its legal anchor. The MCI facility at 2606 Carsins Run Road, Aberdeen, operates immediately adjacent to the Stoney Demonstration State Forest and has done so without incident. Any applicant seeking a new permit must demonstrate that their proposed facility is functionally equivalent to or more restrictive than this standard.

Anchoring permissibility to a specific, operating real-world example is legally significant. It is not an abstract standard that a challenger can call arbitrary. It is a documented facility with a documented operational record.

Existing facilities like MCI are grandfathered under this framework. The standards described in Section IV apply only to new permit applications.

Section IV

The Defensive Framework

The framework replaces the single-sentence prohibition with a defined, tiered regulatory structure 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.

4A — Permitted Use Definition

The only permissible 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

4B — 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.

4C — 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.

4C(i) — Tax Incentives for Participating Landowners

4D — 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.

4E — 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.

Financial Context

This framework 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.

Section V

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.

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 strengthen and define the prohibition language currently in Bill 26-011 as passed.