FAIRBORN — The Ohio Court of Appeals has decided to uphold the decision reached by the lower court about the biodigester located in Bath Township.
The lower court found that Dovetail Renergy, the company that operates the bodigester, was exempt from the township’s zoning laws because it is a public utility. The township appealed the ruling. The court’s decision Friday likely marks the final step that Bath Township could take in court against Dovetail Renergy. There is an ongoing case in civil court involving several Bath residents.
The court’s opinion stated, “Bath Township argues that the trial court erred by not remanding the case to the BZA to allow the Township to make arguments that the Dovetail facility was not a public utility. Dovetail, on the other hand, asserts that the trial court was not required to remand the matter for a hearing. Based on the plain language of the statute, we agree with Dovetail.”
While there is no dispute that public utilities are exempt from zoning regulations, the township argued in its appeal that Dovetail Renergy isn’t a public utility, which is something that’s not clearly defined by the language of the law. The appellate court’s opinion stated, “Based on the stipulations of the parties and other facts in the record, Dovetail provides a public service. The trial court did not err in making that same determination.”
The township also argued that even if Dovetail Renergy’s current facility is classified as a public utility and exempt from zoning, that exemption does not automatically apply to proposed expansions of the property, including facilities for storing fertilizer. The court stated, “There is no debate that storage facilities for fertilizer are a necessary part of the energy-producing process. Dovetail takes the solid waste, processes it through the digester, creates electricity from methane, and then holds the processed fertilizer until it is transported to farm fields. Without a place to store the fertilizer, the facility cannot function. Based on the record before us, we cannot say that the trial court erred in ordering the BZA to grant Dovetail’s request for a certificate of exemption. Future fertilizer storage facilities would be part of the public utility and exempt from Bath Township zoning. The third assignment of error is overruled.”
“We appreciate the decision from the Court of Appeals, and we’re pleased to continue recycling food waste, producing clean energy and supporting local farmers and food manufacturers committed to diverting waste from landfills and reducing their carbon footprint,” said Cari Oberfield, COO of Dovetail Renergy.
“I am very disappointed to say the least,” said Trustee Rob Hoffman. “Our community has suffered long enough and I had hoped that the 2nd District Court of Appeals would’ve ruled in the township’s favor. The trustees need to discuss this with the township attorney and determine what our next steps should be. Together we can and should work with all who are affected to come up with a solution to minimize the odors and ensure the safety of our citizens’ air and water supply.”