A judge decided Friday that two Birmingham residents can move forward with their lawsuit seeking to stop construction of a massive data center in Birmingham’s Oxmoor Valley neighborhood.
Jefferson County Circuit Court Judge Javan Patton Crayton made the ruling after hearing arguments that hinged on whether the two homeowners are eligible to sue. Their attorney, Mark Parnell, said his clients are pleased someone is listening to their concerns.
“From that standpoint, they feel relieved,” Parnell said. “But they're hopeful that as we proceed with this hearing that they will be able to get some relief from the harm that's being done to them by all the defendants in this case.”
Defendants include data-center developer Nebius, the city of Birmingham and Hoar Construction. A spokesperson for the city declined to comment on the judge’s order, and Nebius and Hoar Construction did not immediately respond to comment requests. An attorney for Hoar Construction declined comment after a related hearing on Tuesday.
The residents, Rob Sansome and John Hilley, live within 1,000 feet of the 80-acre data-center site, and their immediate concerns include noise and ground vibrations. Friday’s decision paves the way for a hearing to begin Tuesday on the residents’ request to stop construction until the court decides the larger case, which asks for a permanent end to the project.
The lawsuit is one of several challenging the controversial data center, which the city of Birmingham permitted before placing a temporary moratorium on data-center construction in March. The council then passed regulations for the facilities in June despite strong public opposition. The hyperscale data center in Oxmoor Valley being developed by tech company Nebius isn’t subject to the new rules due to the timing of its permits, the city contends.
But Sansome and Hilley allege in their lawsuit that those permits aren’t valid because the city violated its own zoning ordinances in granting them.
Crayton, who took up the case after a different judge recused herself last week, didn’t rule on the merits of the case Friday but only on whether the plaintiffs’ request to temporarily halt construction could proceed.
Did plaintiffs follow the right steps?
Lawyers for defendants argued the homeowners didn’t take the required administrative steps to dispute the city’s zoning categorization and permitting of the project before bringing their complaint to the court.
But the judge ruled the plaintiffs are exempt from taking those steps because the zoning decision the city made in order to grant permits was “an interpretation of the zoning ordinance and therefore a question of law.” Questions of law are legal questions that require a judge to interpret or apply legal rules.
Katrina Thomas, director of Birmingham's Planning, Engineering, and Permitting Department, decided to place the data center – a land use the city’s zoning ordinance did not include at the time – into an existing category, which attorneys for the defense argued the ordinance gave her the authority to do.
Parnell disagreed.
“Her [Thomas’] function is purely administrative, not legislative,” he said.
Parnell also argued that because the public wasn’t notified of the decision, his clients couldn’t take steps to appeal the decision to the city’s Zoning Board of Adjustment.
Defense attorneys argued that avenue was currently open.
Judge’s order doesn’t address bond argument
Defense attorneys also filed a brief and made arguments asking the judge to consider foregoing a hearing on temporarily halting construction based on the plaintiffs’ ability to post the bond the attorneys said would be required.
Work stoppage at the site would cost defendants $500,000 per day, they said, and would require plaintiffs to provide an equivalent bond to make up for the harm to the defendants should the court ultimately rule in their favor.
In their response to the defendants' motions, plaintiffs argued the request for such a large bond amounted to a "Goliath v. David" defense, intended to use the project's immense costs as a gate to keep regular people out of court.
“If that were the law, the wealthiest violators would be the least accountable, and ordinary citizens' access to the courts would exist only for those who could match the violator's checkbook,” Parnell wrote in the response. “Alabama law is not that.”
He wrote that the court has discretion to set bond at a nominal amount – or require none at all – but said in court his clients intend to post a reasonable bond.
Crayton didn’t address the bond-related arguments in the order she issued Friday.
“In effect, that motion was denied, too,” Parnell said. “She just didn't say it in the order.”
Limits on construction activity
On Friday, Crayton also reiterated an order she gave on Tuesday to limit certain construction activities to 8 a.m. to 5 p.m. and issued a new order pushing back the start time on Saturday to 9 a.m. The restricted types of work are rock hammering, pile driving and dump-truck activities.
All construction activities had been taking place from 7 a.m. to 7 p.m., six days a week.
On Wednesday, the plaintiffs filed a motion asking the judge to hold Hoar Construction in contempt of court for allegedly violating her order by starting restricted activities before 8 a.m. Crayton denied that request on Friday.
Plaintiffs’ noise complaints
The home Rob and Gail Sansome, both retirees, bought in 2023 is separated from the data-center site by about 500 feet of forest and a four-lane road.
Since demolition and construction at the site ramped up in late February, Sansome said, noises have interrupted his sleep and prevented him and his wife from enjoying the once-peaceful backyard that drew them to what they expected to be the last home they would buy.
Standing on his back porch on Tuesday, he detailed the sounds he’s heard: “The sharp noises of multiple pneumatic jackhammers. Then came heavy equipment. Multiple vehicles, you could hear that constant beep, beep, beep as they move back and forth across the property, and that constant very low frequency rumble or growl of an engine.”
More recently, Sansome said, additional noise has included drilling, ground scraping, and what sounds like conveyor belts moving dirt and a huge hammer pounding things into the ground. Then there’s the blasting.
“On four separate occasions, they blasted over there,” he said. “And the blasts were loud and heavy enough that it actually shook the house.”
On Tuesday, Sansome had an explanation for banging sounds that pierced the air.
“The slapping truck gate on the back, is what that is,” he said. “They’re dumping something over there, and the driver rocks the truck back and forth and slaps that back gate to dislodge any material that's stuck up in their bucket.”
Even when there aren’t sounds coming from the site, Sansome said, he’s on edge, anticipating them.
Construction of the Nebius AI factory is slated to take two years.
While construction noise is the Sansomes’ immediate complaint, they and neighbor John Hilley, the other plaintiff, say they have longer-term concerns as well. They worry about noise from generators and transformers and about air pollution once the data center is operating.
Sansome said Tuesday the judge’s restrictions on construction activity are helpful but he wasn’t exactly encouraged.
“I'm hopeful, I guess, that this judge will just take this on with mindful fairness,” he said. “I think she will.”
