It will be almost seven months before one of three lawsuits challenging a hyperscale data center under construction in Birmingham’s Oxmoor Valley neighborhood proceeds.
A Jefferson County Circuit Court judge on Wednesday granted a request to skip a decision about temporarily halting the project and to instead move on to the question of whether the project should end permanently.
Mark Parnell, an attorney for two residents who live near the site and are suing to stop the project, made the request. He argued in court Wednesday that after two days of a hearing in the case last month, the judge already has all the information she needs to decide whether the city of Birmingham illegally issued permits for the data center tech company Nebius is developing.
“Given the fact that these issues are teed up to your honor to decide now, based on the evidence that's already been presented, both testimony and documents, it just makes sense to go ahead and get a decision on that now,” Parnell said.
He suggested giving defendants, which include Nebius, the city of Birmingham and Hoar Construction, 30 days to adjust their case. Defense attorneys objected, saying that wouldn’t be enough time.
“To move the goal post, move it to we're going to a trial on the merits, without giving us a chance to fully develop our defenses, fully explore discovery we might need … It's just fundamentally unfair on its face,” said Amaobi Enyinnia, an attorney for the city of Birmingham.
After a 10-minute break in Wednesday’s court proceedings turned into an hour-long recess, with attorneys huddling in conference rooms adjacent to the courtroom, Judge Javan Patton Crayton returned to the bench and granted the residents’ request to move on to a hearing on whether to permanently halt the data-center project. But rather than taking up the case again in a month, she set the next hearing date for March 8.
After the hearing adjourned, Charles Prueter, a lawyer for Nebius, said Crayton asked attorneys for both sides to compromise.
“We worked together to try to find a schedule that we felt was reasonable, and the judge agreed with that,” Prueter said.
Construction at the site began early this year, and Parnell said it’s moving at a fast pace. The project is slated for completion in 2028.
“What they're wanting to do is keep building, keep building, keep building, and make it so big that it’s too big to fail,” Parnell said in court.
Afterward, he said that given appeals-process timelines, the new schedule is likely the quickest route to his clients’ ultimate goal.
“What it does is it gets us to a final decision one way or the other on the permanent injunction, which is the only way to stop the construction at some point,” Parnell said. “And it will expedite the whole process because whoever loses is going to appeal.”
Robert and Gail Sansome’s lawsuit claims the project, located in an area with both commercial and residential developments, isn’t legal because the city of Birmingham erroneously granted permits for it when “data center” wasn’t explicitly listed as a land use in the city’s zoning ordinance.
Prueter said Wednesday that the permitting process was lawful.
“The way that Nebius has proceeded through the permitting process is the appropriate way – the same way that everyone else in Birmingham goes through when constructing a building of any kind,” he said.
The city amended the zoning ordinance to include data centers in June, immediately after a public hearing that drew hundreds of residents, many of whom voiced environmental concerns and said the new rules weren’t strong enough.
In their suit, the Sansomes also say they’re worried about noise and pollution the massive Nebius data center could generate. Because of the timing of its permits, the Nebius facility doesn’t have to follow the new rules, which Parnell alleges aren’t valid anyway because the city didn’t follow proper procedures in amending the zoning ordinance.
Additional attorneys recently joined the Sansomes’ side of the case. Four attorneys, including former U.S. District Court Judge U. W. Clemon, have joined Parnell in representing them. Nine attorneys represent the defendants.
A similar, class-action lawsuit involving additional residents who live close to the site is set for a hearing before the same judge next month. The Greater Birmingham Humane Society, which had planned a medical campus for sick and traumatized animals on nearby land, also has filed a lawsuit.
