Dovetail Energy, L.L.C. v. Bath Twp. Bd. of Zoning Appeals
2022 Ohio 92
Ohio Ct. App.2022Background
- Dovetail Energy operates an on‑farm anaerobic biodigester on Pitstick property that converts hog manure into methane for electricity and produces treated effluent used as fertilizer.
- Approximately 81% of the facility’s electricity is sold into the PJM wholesale market; a small portion powers the Pitstick farm.
- Bath Township issued agricultural zoning certifications in 2013 and 2016, later issued violation notices in 2019 alleging industrial use and zoning violations, and denied Dovetail’s proposal for two fertilizer storage ponds.
- Dovetail and the Pitsticks appealed to the Bath Township BZA, arguing the operation is exempt from township zoning as (a) agricultural and (b) a public utility under R.C. 519.211(A).
- The BZA declined to decide public utility status and affirmed the zoning authority’s determination. The Greene County Common Pleas Court reversed, holding Dovetail is a public utility exempt from township zoning and ordering the BZA to vacate the violation notices and grant an exemption.
- Bath Township appealed to the Second District Court of Appeals; the court affirmed the trial court judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court was required to remand the matter to the BZA for further proceedings on public utility status | Dovetail: R.C. 2506.04 permits the trial court to reverse without remand; remand is discretionary | Bath Township: trial court should have remanded so the township could present expert evidence rebutting public utility claim | Remand is discretionary under R.C. 2506.04; trial court was not required to remand and properly reversed without remand |
| Whether Dovetail’s biodigester is a public utility exempt from township zoning under R.C. 519.211 | Dovetail: facility produces electricity sold to the wholesale grid, provides a public service to the public, is subject to regulation and taxed as a public utility | Bath Township: facility is not a public utility; its primary function is agricultural/industrial and not devoted to an essential public service | Court affirmed: Dovetail is a public utility for R.C. 519.211 purposes based on public service and public concern factors; exemption applies |
| Whether proposed fertilizer storage ponds are part of the public utility operation and therefore exempt from zoning | Dovetail: storage of processed effluent is integral and necessary to electricity production and overall operation | Bath Township: storage ponds merely hold fertilizer and are not substantively related to electricity production, so not automatically exempt | Court held ponds are part of the operation of the public utility; future storage facilities are exempt from township zoning |
Key Cases Cited
- A & B Refuse Disposers, Inc. v. Ravenna Twp. Bd. of Trustees, 64 Ohio St.3d 385 (1992) (articulates public service and public concern factors for public utility status)
- Marano v. Gibbs, 45 Ohio St.3d 310 (1989) (public concern requires indiscriminate availability and reasonable access to the service)
- Campanelli v. AT&T Wireless Servs., Inc., 85 Ohio St.3d 103 (1999) (R.C. 519.211 exempts public utilities from township zoning)
- State ex rel. Chagrin Falls v. Geauga Cty. Bd. of Commrs., 96 Ohio St.3d 400 (2002) (common pleas courts may remand administrative appeals for further proceedings)
- Industrial Gas Co. v. Pub. Utilities Comm. of Ohio, 135 Ohio St. 408 (1939) (enterprise serving substantial public can be characterized as a public utility)
- Key Ads, Inc. v. Dayton Bd. of Zoning Appeals, 23 N.E.3d 266 (2d Dist. 2014) (distinguishes abuse of discretion for factual review and de novo review for questions of law in administrative appeals)