Appeals filed to overturn decision


By Linda Collins - For the Fairborn Daily Herald



BATH TOWNSHIP — A bioenergy company that operates an anaerobic digester facility on Herr Road and the landowner who leases the property to the company are asking a county judge to overturn a recent decision rendered by the Bath Township Board of Appeals (BZA).

Attorneys representing Dovetail Energy LLC, a subsidiary of Renergy Inc., Pitstick Renewable Energy LLC, and Thomas V. and D. Lynne Pitstick filed notices of appeal with the Greene County Common Pleas Court on March 9.

The plaintiffs are contending that the township BZA declined to consider the evidence presented at the Feb. 13 BZA public hearing. At that time, attorneys representing Dovetail Energy argued that the township facility is a public utility under Ohio law, which Bath Township has no jurisdiction or authority to regulate.

During a public hearing on March 3, the BZA voted unanimously to uphold the township zoning authority’s findings. Those findings concluded that the Pitstick property is zoned agricultural, and the current use of the existing facility has been determined to be an industrial use. Therefore, Dovetail Energy LLC is in violation of the Ohio revised Code and the Bath Township zoning resolution.

“The township issued a cease and desist order in September, and both Mr. Pitstick and Dovetail appealed that decision. We (BZA) affirmed the township’s decision that the facility is not an agricultural zone but basically an industrial zone,” BZA Chairperson Karen Hawk said following the hearing. “We made our decision. After that, it is up to the people involved.”

The BZA also upheld the township’s decision to deny an agricultural exemption on adjacent property owned by Renergy Inc. where the company plans to construct two, open-air storage lagoons that would have the capacity to store a combined 32 million gallons of digested biosolids.

However, the BZA did not render a decision regarding the company’s claim that the Dovetail Energy facility is a public utility because the company produces one megawatt of electricity that goes to a local grid and powers approximately 1,000 homes.

“The BZA did not feel it was within the scope of the purview to determine if the facility was or was not a public utility, regardless of how it was being taxed. The BZA chose to consider only the agricultural-versus-industrial zoning issue,” Township Zoning Inspector Jim Miller said following the March 3 public hearing.

The legal counsel for Dovetail Energy and Renergy Inc., Catherine Cunningham, with Kegler, Brown, Hill, & Ritter Law Firm in Columbus, filed two notices of appeal with the common pleas court. Defendants named in those appeals are Bath Township BZA, Bath Township Zoning Inspector Jim Miller, Bath Township, Pitstick Renewable Energy LLC, and Thomas V. and D. Lynne Pitstick.

Columbus attorney Jack A. Van Kley, with Van Kley & Walker, LLC, also filed an appeal on behalf of Pitstick Renewable Energy LLC and Thomas V. and D. Lynne Pitstick. Defendants listed in that appeal are Bath Township BZA, Bath Township Zoning Inspector Jim Miller, Bath Township, Dovetail Energy LLC, and Renergy Inc.

According to court records, the appeal cases were consolidated into one case on March 12. Common Pleas Court Judge Michael A. Buckwalter will preside over the civil case. The township board of trustees has yet announced who would be legal counsel representing the township as to this legal matter.

The Dovetail Energy facility has continued to operate during the appeals process. However, several township residents have asked the township board of trustees to file an injunction that would halt operations at the facility during the appeal process.

By Linda Collins

For the Fairborn Daily Herald

Contact Whitney Vickers at 937-502-4532.

Contact Whitney Vickers at 937-502-4532.