Judge rules in favor of Renergy in zoning case

BATH TOWNSHIP, Greene County — A Greene County judge has ruled in favor of Renergy and Dovetail Energy, LLC, stating the biodigester facility operated by the company is a public utility, and therefore exempt from Bath Township zoning regulations.

The decision, handed down Thursday by Greene County Common Pleas Court Judge Michael Buckwalter, reverses the Bath Township Board of Zoning Appeals (BZA) ruling that the biodigester, 1156 Herr Road, was in violation of the township’s zoning regulations. The decision is a win for Renergy, which operates the Dovetail facility but a loss for Bath Township and Fairborn residents, who have long opposed the biodigester due to the smell, health concerns, and environmental impacts.

“It’s ridiculous. This industry has never been about alternative or green energy, it’s always been about making piles of money, hand over fist, by taking waste from everywhere and trucking it here to a place where they thought the neighbors couldn’t oppose them,” said Karen Jeffers-Tracy a ClimateOhio educator.

For some, the decision came as a surprise.

“We’re baffled by it,” said Bradley Martin, a resident of nearby Waterford Landing. “I’m truly surprised the judge went the way he did.”

Dovetail and Tom Pitstick, a township trustee who leases land to Dovetail, had appealed the BZA decision that the biodigester was an industrial zoning, rather than an agricultural zoning.

According to court documents, in September 2019, Special Prosecuting Attorney Jess Weade delivered a Notice of Violation to the Pitsticks, noting that “the use of this property at the present time appears to be more industrial in nature as opposed to agricultural.”

The BZA held a hearing in February 2020, issuing a decision the following month affirming the decision of the Bath Township zoning board. However, the BZA would not at the time consider whether or not Dovetail should be considered a public utility, as that issue had not been previously considered by Bath Township zoning officials.

“In filing the appeals to the BZA, the Appellants [Dovetail] had ‘for the first time argued that the uses constitute Public Utilities,’ a claim which the Bath Township enforcement authorities never considered in their September 2019 enforcement action.”

The Dovetail biodigester uses an anaerobic process to break down food waste and manure, called “biosolids,” into methane gas, which is used for electricity, and fertilizer, which is used for surrounding farmland. Renergy also previously processed municipal waste at the facility but stopped in October 2020.

According to the ruling, the State of Ohio has previously determined that Dovetail is a public utility, and the company has been taxed as a public utility since 2015. Eighty-one percent of the electricity Dovetail generates is sold to PJM Interconnection, 13 percent is used by Dovetail, and 6 percent is used by Pitstick’s farm.

On Feb. 9, Dovetail filed a Notice of Supplemental Authority citing a court decision regarding its sister facility in Morrow County, Emerald Bioenergy, LLC. The Morrow County Common Pleas Court found that Emerald was exempt from township zoning regulation because it constitutes agricultural use and generates electricity as a public utility, a claim the BZA said was erroneous.

Buckwalter’s ruling to reverse the BZA decision and to consider the biodigester as a public utility requires the BZA to “vacate the Notices of Violation issued to Pitstick and Dovetail,” and grant the company’s request for an exemption.

For some, the ruling has deepened the bad blood between Renergy and its neighbors.

”It’s horribly sad,” said Corey Gayheart, a Waterford Landing resident. “We have a really strong neighborhood. We have community events weekly; we have families with kids who live in the neighborhood. It’s going to impact home sales and have people second guess moving here.”

Residents fear that the ruling will give Dovetail license to expand its operation, building an additional 32 million gallon biosolid lagoon near Pearl’s Fen.

“We have no longitudinal studies on the environmental impact of a facility like this,” Gayheart said. “If there were a spill in Pearl’s Fen, which runs into Hebble Creek and eventually into Beaver Creek, it would be a disaster.”

Renergy COO Cari Oberfield declined an interview due to ongoing class action and defamation cases but issued a statement.

“Yesterday’s court decision found in favor of Renergy and our Dovetail facility on every issue. We are pleased that every judge who has considered these facts has found in favor of Renergy. We now consider this case resolved and will continue moving forward with our mission to reduce carbon emissions by recycling food and farm waste for beneficial use and producing renewable, clean energy, which is good for the environment and public health.”

Both parties have 30 days to file an appeal. Township administrator Pete Bales said that the trustees have not yet decided whether or not they will file an appeal, but that a decision would be made “in due time.”

Pitstick has recused himself, therefore the decision to appeal is ostensibly up to the remaining two trustees, Kassie Lester and Steve Ross.

Members of Bath Township Concerned Citizens, a local organization which opposes the biodigester, plan to make its concerns known to the trustees at their next regular meeting on May 5.

“Our group of 500 strong fully expects that the Bath Township trustees will file an appeal as soon as possible,” said Lorie Venable, a founding member of the group. “If they don’t, they will be removed in November.”

By London Bishop

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Reach London Bishop at 937-502-4532 or follow @LBishopFDH on Twitter.

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