Biglin v. S (In re Black Fork Wind Energy, L. L.C.), 124 N.E.3d 787

Background

Black Fork Wind Energy received a Power Siting Board certificate in Jan. 2012 to build a wind farm; condition No. 70 required commencement of continuous construction within five years (deadline Jan. 23, 2017).
On Sept. 12, 2014 Black Fork filed (a) a motion in the original docket seeking a two-year extension of the commencement deadline to Jan. 23, 2019, and (b) a separate application to amend the certificate to add turbine models (new docket).
The board approved the turbine-model amendment in Aug. 2015 under the amendment process, but later (Mar. 24, 2016) granted the two-year extension by motion in the original docket without treating it as an amendment or using the amendment procedures.
Appellants challenged the extension, arguing it was an amendment under R.C. Chapter 4906 and therefore required an application, staff investigation, and possible hearing; they also argued the board’s approach let Black Fork evade newer turbine-setback statutes enacted in 2014.
The Ohio Supreme Court held the board’s grant of the two-year extension amounted to an amendment, the board unlawfully bypassed the statutory amendment process, appellants showed prejudice, reversed the board’s orders, and remanded for further proceedings; the Court declined to rule on setback statutes’ applicability in this appeal.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether extending the certificate deadline constitutes an "amendment" of the certificate	Extension changed material term (condition No.70) and thus is an amendment requiring an amendment application	"Amendment" requires a proposed change to the facility; timeline changes are not changes to the facility and may be handled by motion; board practice supports this	Yes. The court held the deadline extension was an amendment and had to follow the amendment procedures.
Whether the board may rely on its longstanding practice and broad discretion to treat extensions by motion instead of amendment applications	Agency practice cannot override statute; board limited to powers granted by legislature	Board has exercised consistent administrative practice since 1996 and its interpretation deserves deference	The court rejected deference here: statutory text controls and the board lacked authority to amend via motion in this case.
Whether appellants were prejudiced by the board’s failure to follow amendment procedures	Lack of staff investigation/report and the realistic possibility of a different outcome (e.g., triggering new setback laws) caused prejudice	Prior staff investigations and other amendment proceedings adequately covered issues, so no prejudice	Appellants demonstrated prejudice (no tailored staff report; realistic possibility of different outcome), so reversal was warranted.
Whether current turbine-setback statutes apply to Black Fork’s project due to the extension	Appellants argued the amendment procedure could have triggered new setback statutes enacted in 2014	Board and Black Fork argued statutes did not apply or raise constitutional issues; board treated some separate amendment as not triggering the new setbacks	Court declined to decide setback statutes’ applicability or constitutionality here; reserved those issues for a record where they are squarely presented.

Key Cases Cited

In re Application of Black Fork Wind Energy, L.L.C., 138 Ohio St.3d 43, 3 N.E.3d 173 (Ohio 2013) (prior appeal regarding original certificate)
In re Application of Champaign Wind, L.L.C., 146 Ohio St.3d 489, 58 N.E.3d 1142 (Ohio 2016) (standard of review for Power Siting Board orders)
In re Application of Buckeye Wind, L.L.C., 131 Ohio St.3d 449, 966 N.E.2d 869 (Ohio 2012) (Power Siting Board authority over major utility facilities)
Office of Consumers' Counsel v. Pub. Util. Comm., 67 Ohio St.2d 153, 423 N.E.2d 820 (Ohio 1981) (purpose and importance of staff reports in administrative proceedings)
Weiss v. Pub. Util. Comm., 90 Ohio St.3d 15, 734 N.E.2d 775 (Ohio 2000) (statutory interpretation; apply plain language when unambiguous)