2019 Ohio 2406
Ohio2019Background
- Greenwich Windpark received an Ohio Power Siting Board (PSB) certificate in Aug 2014 to build up to 25 turbines (60 MW) based on one turbine model; H.B. 483 (effective Sept 15, 2014) then increased wind-farm setback requirements and made any post‑effective‑date certificate “amendments” subject to the new setbacks.
- In Nov 2015 Greenwich filed an application to amend its certificate to add three newer turbine models (one later swapped); locations of turbines and site conditions would not change and prior setback waivers covered turbines that sat inside then‑existing setbacks.
- GNU (Greenwich Neighbors United) intervened and objected, arguing the turbine-model additions were an “amendment” that should trigger the enhanced setbacks, that waivers were not properly obtained, and that a hearing was required.
- The PSB reviewed staff’s investigative report, approved Greenwich’s application without a hearing, concluded the turbine-model changes did not constitute an “amendment” for purposes of triggering the new setbacks, and found existing certificate conditions/waivers adequate.
- The Ohio Supreme Court affirmed the PSB orders: it held the PSB’s interpretation of “amendment” and its waiver procedure was reasonable, the board did not err in denying a hearing, and struck non‑record materials GNU submitted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether adding new turbine models was an “amendment” that triggers the post‑2014 enhanced setback statutes (R.C. 4906.20 / 4906.201). | GNU: plain meaning of “amendment” includes any change; adding turbine models amended the certificate and therefore new setbacks apply. | PSB/Greenwich: “amendment” for those statutes is limited to changes that substantially relocate turbines or materially increase unmitigated environmental impacts; minor model updates addressed by existing conditions do not trigger new setbacks. | Court: PSB’s interpretation was reasonable; approved model changes were not an “amendment” for applying the enhanced setbacks; orders affirmed. |
| Interpretation of waiver provision (R.C. 4906.20(B)(2)(c)): must waivers come from “all owners” of property adjacent to the wind‑farm property? | GNU: “all owners” means every owner adjacent to any portion of the wind farm must sign a waiver before any turbine may be sited within the minimum setback. | PSB: only owners whose property is adjacent to a turbine that lies within the minimum setback must waive application of that setback to their property. | Court: PSB’s reading reasonable and textually supported—“all owners” modifies owners adjacent to the specific property/turbine at issue; GNU’s broad veto theory rejected. |
| Whether PSB was required to hold an evidentiary hearing on the amendment application under R.C. 4906.07(B). | GNU: new turbine models cause material environmental changes (noise, shadow flicker, ice throw), so a hearing and due‑process protections were required. | PSB/Greenwich: R.C. 4906.07(B) is discretionary; staff investigation found no material increase in environmental impact nor change in turbine locations; hearing not required. | Court: PSB’s factual determination was supported by the record and R.C. 4906.07(B) affords the board discretion; no due‑process violation shown. |
| Whether PSB failed to promulgate required waiver/procedural rules or otherwise acted unlawfully in rulemaking. | GNU: PSB rules lack substantive standards and board acted ad hoc, so waivers/procedures were defective. | PSB: rules governing waivers existed; GNU’s complaint concerns the substance of rules and should be raised in a rule challenge, not here. | Court: issue outside scope; PSB had adopted waiver rules; GNU failed to develop reversible‑error showing. |
Key Cases Cited
- In re Application of Champaign Wind, L.L.C., 146 Ohio St.3d 489 (2016) (standard of review for Power Siting Board orders; factual vs. legal questions)
- In re Application of Buckeye Wind, L.L.C., 131 Ohio St.3d 449 (2012) (board retains authority to determine what matters require hearing under R.C. 4906.07)
- Discount Cellular, Inc. v. Pub. Util. Comm., 112 Ohio St.3d 360 (2007) (no constitutional right to hearing in utility matters absent statutory right)
- Consumers’ Counsel v. Pub. Util. Comm., 70 Ohio St.3d 244 (1994) (participation/rights in utility proceedings are statutory)
- Chesapeake Exploration, L.L.C. v. Buell, 144 Ohio St.3d 490 (2015) (interpretation of “any”/“any amendment” as encompassing all examples)