The siting word for a town a facility is put in. The town is called the host so that it will not notice who has taken the house. The agreement it signs sets the conditions, prices the known harms in advance, and comes before the vote, so that what the town is asked is never whether.
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In the law of siting, the place a facility is put is called the host community. Massachusetts writes the term into its gaming statute: an applicant must provide a signed agreement between the host community and the applicant setting forth the conditions to have a gaming establishment located within the host community, and the agreement must include a community impact fee for the host community and stipulations of known impacts from the development and operation of a gaming establishment, Mass. Gen. Laws ch. 23K, § 15(8). Casinos, landfills and cannabis shops arrive the same way, with an agreement and a word for the town, and data centers are offered to towns in the same vocabulary.
The word is the courtesy. A host is the one who opens the door, admits the guest and sets the terms of the stay. The town is given that name at the moment something is being put on its ground by someone else.
The town is called the host so that it will not notice who has taken the house.
[See LICENSED PRESENCE · RESIDENCY]
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THE HOST WHO DOES NOT HOLD THE DOOR
An invitation runs one way: the one inside offers admission to the one outside. The host community runs it backwards. The operator arrives from outside, and the town is told it is the one doing the admitting.
But the terms are written before the town admits anything. Under the Massachusetts scheme, as the Gaming Commission states it, a municipal vote on the facility cannot be held until the agreement has been signed, so by the time the residents are asked, the conditions, the fee and the list of known impacts already exist. The town is flattered with the role of host and handed a door someone else built, already open.
[See GOOD FAITH · THE TOLLBOOTH · THE INVITATION]
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THE KNOWN HARMS ARE PRICED BEFORE THEY HAPPEN
Read what the agreement must contain. The known impacts of building and running the facility, stipulated. A fee, paid for them. The harm is not disputed. It is listed, and the list is what the money is for.
The New York Court of Appeals did the same thing after the fact in Boomer v. Atlantic Cement Co., 26 N.Y.2d 219 (1970). It found the nuisance, refused the injunction because the plant carried more than forty-five million dollars of investment and over three hundred jobs, and awarded damages instead, naming what the award was: the servitude on land of the plaintiffs imposed by the defendant's nuisance. A host community agreement is that servitude negotiated in advance, with the town's signature on it.
[See BURGLAR'S BUSINESS PLAN · THE RIGHTS OF NATURE]
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WHAT THE DATA CENTER TAKES
A large data center can draw millions of gallons of water a day for cooling, and the facilities are going in over aquifers already being depleted. They load the grid until residents' rates rise. They run chillers, cooling towers and transformers without pause, and the low-frequency noise of keeping the racks from overheating carries into the houses nearby.
That is clearance in its current form: the prior residency's water, current and quiet made to leave so the racks can be fed, administered as development and announced as the town's good fortune to host it. What the agreement calls an impact is what the town was living on.
[See CLEARANCE LOGIC · THE PLANTATION AS APOTHEOSIS · THE HUM]
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THE AGREEMENT IS WHERE THE CONVINCER IS PAID
The impact fee, the payment in lieu of taxes, the community benefit agreement and the jobs are real money and real work. They are paid early, at the signing, before the water is drawn. Their office is the one every early payout has in a con: to keep the town at the table, and to make it the evidence that the terms were fair.
And afterwards the cooling arrives in the same instruments. The advisory panel, the mitigation plan, the hearing that was held. Every term on the table is a question of how, and a question of how cannot produce a no.
[See THE COOLING OF THE MARK · SACRIFICE ZONES · THE CONVINCER]
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THE WHETHER
There is one question the agreement cannot hold, because the agreement presupposes the answer: whether this land is a place where this use happens.
That question is the town's. New York's towns asked it of drilling under their ordinary zoning power, and in 2014 the Court of Appeals held in Matter of Wallach v. Town of Dryden, 23 N.Y.3d 728, that the state had never taken that power from them. Nothing was conferred. Where state bills move to take local siting authority over data centers away, they are the house reasserting that it holds the house, and the effort spent taking the whether away is the measure of what the whether reaches.
[See WALLACH v. TOWN OF DRYDEN · HOME RULE FOR THE SOUL · WHOSE HOUSE]
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THE OBJECTION THAT HAS TO BE MET
Towns need revenue, and the agreement is how they get it. Without one, a facility the state permits anyway arrives with no fee, no benefit and no stipulations. Reading the agreement as a con counsels towns to refuse the only protection they can bargain for.
The entry does not counsel worse terms. A town that has answered whether, and answered yes, should get the best agreement it can, and the agreement is the right instrument for that. What it cannot be is the place where whether is decided, because every one of its clauses assumes the facility is coming. The agreement is a good answer to how, and the town that signs it before asking whether has let how stand in for the only question that could have produced a no.
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The town was there before the facility was proposed, and before anyone called it a host.
A host keeps the door. The town that remembers it was never a guest does not need to be handed one.
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