“We’re not saying, ‘no,’ we’re just saying ‘not now,’” County Commissioner Dick Gould said.
In September of 2019, an independent zoning inspector found the Renergy site was not compliant with its agricultural zoning. In March of 2020, the Bath Twp. Board of Zoning Appeals ruled Renergy’s biodigester facility is not operating in accordance to its agricultural zoning, instead operating as a business more appropriate for industrial zoning. Renergy has appealed this ruling.
Renergy and Bath Twp. Trustee Tom Pitstick were sent a letter from an outside prosecutor saying that the operation was in violation of both the Ohio Revised Code and Bath Twp. zoning code. The letter stated that Dovetail had 30 days to correct the violation. “Failure to correct this violation with result in legal action,” the prosecutor stated in the letter. The bio-energy company has appealed that order and continues to operate today.
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 declaring it a public utility. This notice mentions that in Morrow County, where a sister facility is located, a judge ruled that the anerobic digester operation is a public utility.
Fairborn City Council and city staff issued a statement about the recent letter from residents, saying that the biodigester is out of Fairborn and the city’s legal jurisdiction, but that the city supports the efforts of Bath Twp. in upholding zoning codes and regulations.
“The health, safety and well-being of our community is paramount, and we will continue to advocate for our residents when we are able, and where we have the appropriate legal authority to do so,” the statement says. “We remain committed to working with Bath Twp., Greene County, Renergy and others to find a solution to the ongoing issues regarding the biodigester.”
Fairborn city council members discussed potentially sending a letter of concern to the Ohio Environmental Protection Agency at their meeting this week.
Fairborn City Schools Superintendent Gene Lolli said the district doesn’t have any authority when it comes to zoning and economic development, so it will allow the appropriate authorities to handle this.
The letter, obtained by the Dayton Daily News, requests the county, city and school district convene a meeting and discuss a way to somehow intervene in the situation. The letter asks for them to contact the Ohio Public Utility Commission, the Ohio EPA and U.S. EPA on behalf of these concerned citizens.
The group also stated if the current operation on Herr Road is allowed to continue they believe that Dovetail will resubmit plans to build more lagoons on Byron Road. There has been no project like this officially announced.
Oberfield, COO of Renergy, said the company has no current plans to build additional ponds.
“The allegations being made are not true, nor do they speak for the community at large — but rather a few individuals who are acting in their own individual interest, to the detriment of the greater good of our environment, public health and the sustainability of southwest Ohio,” she said.
The company was pleased with the court decision in Morrow County declaring the site a public utility, Oberfield said. Its facility in Greene County is under the same regulatory and legal requirements, she said.
Greene County Engineer Stephanie Goff studied the traffic on Herr Road over the summer and said that without upgrades to the road, her office is concerned about the long-term condition of the road and its ability to serve high volumes of heavy truck traffic. That study is now part of the ongoing zoning legal case against the bio-waste operation.
Luke Borntrager, who lives in Fairborn, has filed a class action lawsuit against Renergy, Bath Twp. and Twp. Trustee Tom Pitstick in Greene County Common Pleas Court. The suit alleges that the smell from the operation has interfered with the residents’ use and enjoyment of their property. The lawsuit says a properly operated facility would prevent odors from invading nearby homes and property.
Renergy attorneys filed a motion this month to dismiss Borntrager’s suit, saying the facility is regulated by the Ohio EPA and legally operated.
“There are some necessary things in life which come with drawbacks. Electricity service requires unsightly transmission lines. Natural gas heat requires pipelines. Farming operations can lead to odor and runoff. Solid waste disposal facilities can have odor or environmental issues,” the motion to dismiss says. “Most people acknowledge these facts of life, but some take the position ‘not in my back yard.’”
The letter from residents says if the facility on Herr Road is designated a public utility, it is essentially a “get out of jail free card” for Renergy. Three residents sent the email to commissioners, said Greene County Administrator Brandon Huddleson, residents Amanda Dunwiddie, Karla Sams and Bradley Martin. Martin, in his letter, says he’s ready to move because the smell is so bad.
The group is concerned that the “persistent stench” will impact property values and the new Fairborn High School to be built.
“We love Fairborn,” the letter says. “We chose to live here and raise our children here. We have supported city, county and school levies. We volunteer our time and energy in local youth and civic organizations. We are going to fight for this community, and as a community, we are starting to hit our stride ... We worry that this single company’s facility threatens our momentum and current way of life. Please continue to stand up for the community and directly fight this issue.”