Bath Twp. says bio-energy facility is not a public utility

Greene County’s Bath Twp. is disputing a local bio-energy facility’s claim that it is a public utility and not subject to the township’s zoning.

The company, Renergy, operates the Dovetail Energy facility at 1156 Herr Road and is in court in a lawsuit against the township which has ruled that the facility is violating the land’s agricultural-use zoning.

In the latest court filings, Renergy filed a claim that its operation is a public utility and as such is exempt from township zoning restrictions. On Feb. 18, an attorney for Bath Twp. filed a response, stating the court should reject that claim.

In September of 2019, an independent zoning inspector found the Renergy site was not compliant with the land’s agricultural zoning. Last March, the Bath Twp. Board of Zoning Appeals ruled Renergy’s biodigester facility is is instead operating as a business more appropriate for industrial zoning. Renergy has appealed this ruling.

During the March 2020 BZA hearing, Renergy attorneys claimed that the operation is considered a public utility and not subject to township zoning laws. On Feb. 9 an attorney for Renergy filed a notice in one of its lawsuits restating that claim that it is a public utility.

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According to its filing, the company’s claim is based on a judge’s ruling in Morrow County, where a sister facility is located, that the anerobic digester operation there is a public utility.

Anerobic digesters are enclosed entities in which agricultural or food waste is stored and produce liquids and gases as the waste decomposes.

The township’s response to Renergy’s notice states that the Morrow County facility provides energy to the public at large, which the Renergy operation in Greene County does not. The response also states that Renergy’s operation does not meet the agricultural use exemption because only a minimal amount of the material used in the biodigester comes from the farm it sits on.

The response also states that “the Morrow County court incorrectly concludes” what a solid waste facility is . A solid waste facility can not be classified as a public utility, according to township zoning laws, the township’s filing states.

The response urges the court to “heed the Morrow County decision... with the caution and skepticism it deserves.”

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Renergy officials were pleased with the court decision in Morrow County declaring the site a public utility, the company’s Chief Operating Official Cari Oberfield previously told this newspaper. Its facility in Greene County is under the same regulatory and legal requirements, she said.

“There was a complete evidentiary hearing at the BZA and afterward the parties agreed on stipulations of fact to present this legal question to the court. Now that the law has been made clear in Morrow County, Bath Township is seeking to change the facts the parties expressly agreed to. For example, the township is now claiming Dovetail is a ‘solid waste facility’ despite specifically agreeing to the contrary in a binding factual stipulation before the Court. That is inappropriate. The facts are the facts, and this case is precisely on point with Morrow County. Dovetail will respond appropriately,” Oberfield said in an emailed statement to this newspaper.

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