Sharp et al v City of Wilmington (and Amazon)

7/9/26

INJUNCTION HEARING VERDICT

We were able to convince the Court that there were serious enough notice defects with the notice posted/mailed for the generator and permitted use text amendments, as well as the Cosler map rezoning amendment, that he required the City, AWS and Plaintiffs to come to an agreement nullifying the effect of each of these amendments and putting in place due process guidelines for site plan. Here is a summary of what was ordered. The official order should be available from the court clerk tomorrow.

Terms of the Agreement

1) The City must repeal, replace, or otherwise re-ratify O-24-70, O-25-36, O-25-48.

2) No site plan may be approved on the existing ordinances, although they may hold another information-only site plan meeting.

3) The Public must have a full opportunity to present at any and all upcoming site plan meetings on data centers while this order is in effect. Meetings will have 14 days' notice emailed to Plaintiffs counsel. The Public- all members- are allowed to speak WITHOUT time limit, to present expert testimony, to bring legal counsel, and to cross-examine witnesses and/or the site plan applicant representative. This was born of the due process concerns stemming from how we were silenced in March.

4) Any site plan that is subsequently approved once the ordinances are redone will be subject to the law in effect at the time of approval, not application- no argument for grandfathering loophole.

Here is what this means, in practical terms.

In legal terms, we won.

In reality, the burden is entirely on the City to do the right thing from here. They are under no obligation to repass ANYTHING- they can repeal if they so choose- but both the City and Amazon's attorneys seemed confident that they will repass all ordinances as-is without issue. This could be bravado, or it could be Mayor Haley trying to assert his will as the City client. I will say that I heard the City's counsel say that they will "live with" the order, and I think that is closer to the truth of the situation from their perspective.

Regardless of what he may think, Pat Haley is NOT the City. He is the chief administrator. These are legislative acts that must be redone. That means Planning Commission and Council hold all the power now. These ordinances, admittedly each and every one designed by and for Amazon, will finally be considered in the light of day, with full disclosure, and with full knowledge of the project planned. How the City chooses to proceed is up to them, but make no mistake that the Mayor cannot simply wish for laws to be passed for his project.

The City also has important leverage over Amazon at this time. They are under no obligation to act in any particular way. Amazon cannot sue over a project denial in their situation now. From my perspective, if they wanted an out, we've just handed it to them on a silver platter. I will also note that if they wanted to, the City could ban data centers with this order. The order is repeal OR replace OR re-ratify. Not all.

If financial promises tend to entice the City, I have no doubt Amazon will give them whatever they have been asking for and more. They have already bought the land and won't walk now. I would hope that the City will use this leverage to argue for meaningful conditions, not monetary compensation in a general fund.

The key takeaway here is that if you have felt your voice did not matter, that the deal is done, or that we are out of time: we just hit reset on this whole thing. The City will decide what to do with the ordinances in question now, but we have every opportunity to present to them in full, to lobby them, and to make our voices heard.

I can think of at least a dozen other municipalities that would kill to be in our position tonight and whose legislators would do the right thing in a heartbeat. The question is: will ours?

Council does still have third reading and a vote set for Conditional Use on 7/16. They can pass it, or they can let it die and try to re-pass Permitted. Given that the Planning Commission and Council were in near unanimous agreement to pass Conditional just a month ago, we'll know what changed if they do an about face.

The testimony given before the Court also had lots of juicy information we would not have otherwise had access to. I took about 6 pages of notes and will post the highlights another day. In short though, there are at least 2 other data centers planned for the city/county, one confirmed as being Ardent. Josh Roth is under NDA on at least one other. Now would be a great time to get in your records requests on this.

In addition, the Plaintiffs will be returning to crowdfunding to offset legal costs as this case progresses. The City knows we have limited funds, and I believe they think they can outspend us to wear us down. Every Plaintiff family has already paid $4000 out of pocket on this case. We did this because we didn't want to take community funds for something that could disproportionately benefit us. However, it is clear from this order that the present situation will benefit the city at large. I would estimate this week's hearing cost us at least $15k, but we won't know until August 1. I have set a goal of $100k for now since we have already spent $47k on this matter, and that just took us through the injunction. I would hate for finances to be the reason we had to drop. We will be asking the community to contribute what they can.

Thank you for your support, and remember all it takes is one person refusing to stand down to change the world.