BATH TOWNSHIP — The latest court filings in a lawsuit regarding the Bath Township biodigester dispute claims that the facility is a public utility.
The Bath Township Board of Zoning Appeals (BZA) filed a response to Dovetail Energy’s Notice of Supplemental Authority on Feb. 18, stating that Dovetail’s argument that it is a public utility is erroneous.
In its response, the township asserted that Dovetail’s operation does not meet the agricultural use exemption under the Ohio Revised Code. According to court documents, a biomass energy facility is exempt from zoning regulations if “at least 50 percent of the feedstock used in the production was derived from parcels of land under common ownership or leasehold.”
Dovetail had previously said that the biodigester is a public utility, and therefore not subject to the township’s zoning regulation. 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.
Though Renergy plans to replicate their legal victory in the Bath Township case, the Bath Township BZA said in court documents that the Dovetail facility differs from its Morrow County counterpart in several key ways. Particularly, the Dovetail facility does not provide electricity to the general public, as the Emerald facility does.
The Bath Township biodigester uses an anaerobic process to break down food waste and animal waste into fertilizer and methane gas. The methane gas is burned to supply electricity to approximately 800 homes, and the fertilizer is spread over approximately 2,200 acres of surrounding farmland.
The energy generated by the Emerald facility is sold to Buckeye Power, Inc., which sells to the general public. The township alleges in court documents that Dovetail does not have a similar contract, nor does the amount of energy that it produces “overcome the fact that Dovetail and Renergy’s operations are predominantly those of a solid waste disposal facility.”
The Township also criticized the Morrow County court decision itself, saying that the court “erroneously” considered the definition of a solid waste facility under two different sections of the Ohio Revised Code.
Section 5709 outlines definitions for tax-exempt properties, while section 3743 provides definitions of solid and hazardous waste facilities for the purposes of health and safety regulations. The township alleges that the Morrow County court considered only section 5709, without regard for the facility’s status as a solid waste facility under section 3743.
“The definitions located in these respective statutory provisions are not mutually exclusive,” the document reads.
The township concluded its arguments by saying that the Greene County Common Pleas Court should consider the Morrow County decision “with the caution and skepticism it deserves.”
Renergy, Inc., the parent company which operates both the Emerald and Dovetail biodigesters, previously told this newspaper that they were “pleased” with the Morrow County court’s decision.
“Our Dovetail facility in Greene County is under the exact same regulatory and legal requirements and we expect a favorable outcome in that case as well,” Renergy Chief Operations Officer Cari Oberfield said.
In 2019, the Dovetail biodigester facility was found in violation of the Ohio Revised Code and Bath Township Zoning Resolution. Dovetail and Pitstick have since appealed that ruling.
Residents filed a class-action lawsuit against Pitstick and Dovetail in December 2020, citing the alleged unpleasant smell coming off the property. Residents allege that the smell has affected residents in neighborhoods as far away as Rona Hills and Waterford Landing, posed respiratory health risks, and prevented residents from the full enjoyment of their property.
Reach London Bishop at 937-502-4532 or follow @LBishopFDH on Twitter.