It will be almost a month before a Jefferson County court will resume a hearing in a lawsuit that aims to halt construction of a hyperscale data center in Birmingham’s Oxmoor Valley neighborhood.
But much was covered during two days of testimony this week, including details surrounding the city of Birmingham’s permitting of the massive project in an area with a mix of residential and commercial uses.
“There's a lot at stake,” said Mark Parnell, an attorney representing two residents who live near the data-center site and filed the lawsuit. “There's a lot of information to go through, so the hearing has taken longer than anybody really anticipated.”
The lawsuit in Jefferson County Circuit Court is one of at least three challenging the data-center project tech company Nebius is developing. It alleges the city of Birmingham illegally permitted the project. The suit against the city, Nebius and Hoar Construction seeks a permanent end to the project, and the case could take months.
In the meantime, the plaintiffs, husband and wife Rob and Gail Sansome, have asked the court to suspend construction while the larger case is considered, and that request is the subject of the current hearing. Among the issues Judge Javan Patton Crayton is weighing is whether the plaintiffs are suffering harm due to the construction and whether they’re likely to win the overall case.
During eight hours of court proceedings over two days, attorneys presented three witnesses. The Sansomes, who live about 800 feet from the construction site, both testified that noise and ground vibrations coming from the site are preventing them from enjoying their home and property.
Katrina Thomas, director of Birmingham’s Planning, Engineering and Permitting Department, was on the witness stand for about five hours, and her testimony will continue when the hearing resumes Aug. 12.
Charles Prueter, an attorney for Nebius, said only two more witnesses will follow. They will be representatives of Nebius and Hoar Construction, he said.
“We are grateful for the opportunity to put on the evidence that we think is relevant, and that's the way these kinds of proceedings should go forward – that we have the opportunity to have witnesses testify,” he said.
Zoning classification questioned
The city of Birmingham issued some permits for the approximately 500,000-square-foot, 300-megawatt AI data center project before placing a temporary moratorium on data-center construction in March. Thomas testified that concerns the Nebius project raised prompted the moratorium. The council then passed regulations for data centers in June. The Nebius data center isn’t subject to the new rules due to the timing of its permits, the city contends.
But the Sansomes allege in their lawsuit that those permits aren’t valid because the city violated its own zoning ordinance in granting them. At the time, “data center” wasn’t a defined land use in the zoning ordinance, an approximately 500-page document that attorneys for both sides had printed and referenced during the hearing.
Thomas decided to put the data center into an existing category – the one the site was currently zoned for – which attorneys for the defense argued the ordinance gave her the authority to do.
“The director is empowered to categorize new land uses not enumerated in this title according to the most comparable land use classification established by this title,” the ordinance reads.
Parnell pointed out general provisions stating that the ordinance is designed to, among other things, protect the “value and integrity of neighboring properties,” protect landowners from “adverse impacts of adjoining developments” and provide “a reasonable balance between efficient utilization of land and protection of public interest and environmental resources.”
Parnell also read a passage stating the ordinance contains rules and procedures for administering it “so as to protect the public health, safety, morals, convenience, order, prosperity and general welfare of the city.”
Thomas pushed back, saying the passages refer to the establishment of zoning districts. The City Council establishes zoning districts, and councilors are the ones who consider those factors, she said.
Parnell also emphasized that under the data center regulations the Birmingham City Council approved in June, a hyperscale center such as the Nebius facility would not be allowed on the site where it’s being built. Such facilities fall into a category different from the one Thomas placed it in.
Parnell’s questioning of Thomas implied that when she determined the Nebius data center could fall under the existing zoning for the site, she was aware – or should have been aware – that a hyperscale data center was not suited for that category. He referenced the city’s own written statements in an announcement and in the moratorium ordinance, regarding the need for a moratorium on and regulations for data centers.
According to Thomas’ testimony on Tuesday, her office learned that a data center was proposed for the site in early October, when the city’s economic-development director reached out. Meetings with Nebius followed in November and December, she said.
“There were certain concerns about their initial development that had us to really look at our previous policies on this, look at the other data centers that we had permitted, and scrutinize the use,” Thomas said. “I did submit a request to our office of the city attorney to consider working with the City Council to propose a moratorium on data center use.”
The city announced it was considering a temporary pause on data-center applications Dec. 16, and it granted the first permit for the Nebius site Jan. 7.
That’s significant, Parnell said after court proceedings Thursday.
“She conducted this investigation and knew of the concerns that exist with hyperscale data centers because that's what the city had acknowledged when they adopted the moratorium, and they got that information from her – that hyperscale data centers have the potential of noise issues and emission issues and high water uses and electric uses – but she determined there didn't need to be any zoning change.”
Prueter said outside of court that the law doesn't change just because there is an announcement to consider something.
“That would really destabilize the whole system of lawmaking that we have in the city, if a mere announcement would somehow have a legal effect on somebody's rights under the existing law,” he said. “So I thought that she [Thomas] well explained the reality that she has a responsibility to interpret and to act under the zoning ordinance that she has in front of her.”
Thomas testified that because the city had placed data centers in the Oxmoor Valley under that same zoning previously, her hand was forced in the case of the Nebius facility.
“The use of their property was permitted,” Thomas said. “To deny a permit, even though they meet the requirements of the ordinance, would be arbitrary on our part.”
After court proceedings ended Thursday, Nebius attorney Prueter said Thomas’ testimony showed she did follow the law.
“I think she was very clear in her analysis being grounded in the zoning ordinance,” he said. “She explained in great detail the process that was followed in order to make the decision that the project was properly permitted.”
After an earlier hearing on July 10, Crayton ruled 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.
Sansomes’ noise complaints
The Sansomes’ testimony this week dealt with what they say is the harm they’re suffering due to construction at the site.
Gail Sansome, a retired educator, became tearful and paused to compose herself multiple times as she testified she’s not able to enjoy her home and backyard because of noise she said comes from the construction site.
“We worked all our life,” Gail Sansome said. “We wanted some time just to have peace and serenity, and this is what we thought we were getting.”
Rob Sansome gave similar testimony.
When cross-examining him, a defense attorney noted that multiple construction sites near the Sansomes’ home are active, and the Sansomes can’t see any of those sites – including the Nebius one – from their property.
Sansome said he didn’t hear any noise that disturbed him until work began at the Nebius site earlier this year.
He also said if noises from construction of structures such as hospitals or convention centers, which were explicitly allowed for the site under the zoning ordinance when the Sansomes purchased their home in 2023, they would likely bring their complaints to court.
Under questioning, Sansome made statements about construction dust from the Nebius site that seemed to conflict with written complaints a defense lawyer read from the lawsuit.
Plaintiff switch
Gail Sansome was added to the lawsuit as a plaintiff this week. Rob Sansome and John Hilley, who lives across the street from the Sansomes, originally filed the lawsuit late last month. Parnell filed an amended suit Monday removing Hilley as a plaintiff and adding Gail Sansome.
In court Tuesday, Parnell said the Sansomes live closer to the site, and the change in plaintiffs will streamline the case. Defense attorneys suggested Hilley might have left the case because he decided there aren’t real problems.
After Tuesday’s proceedings, Hilley said that’s not true.
“There are problems,” he said. “I'm sitting there supporting my neighbor. We went into this together. I'm doing other things now, as opposed to being a main part of the cog of the case.”
Order to limit construction noise ends
Crayton said she can’t legally extend an order she made last week to limit certain construction activities causing noise the plaintiffs say disturbs them to 8 a.m. to 5 p.m. She said her order is now a request.
Crayton has set aside all of Aug. 12 to continue the hearing. Parnell said he expects it will conclude that day.
The long delay is due to challenges coordinating schedules among the judge and the many attorneys involved in the case. Nine people have packed the defense table and a row of chairs behind it. Parnell is the only attorney representing the Sansomes.
