Westfield Twp. Zoning Inspector v. Emerald Bioenergy, L.L.C.
2021 Ohio 3843
Ohio Ct. App.2021Background
- Westfield Township filed a statutory injunction (Apr. 16, 2020) seeking to enjoin Emerald Bioenergy’s anaerobic biodigester as a non‑agricultural use violating township zoning, citing odor and noise impacts.
- Emerald operates a 2013 anaerobic digester on Ringler property that processes farm manure and other biological feedstocks to produce methane used to generate electricity; it is PUCO‑certified as a renewable energy resource, has interconnection/purchase agreements, and sells power to the wholesale grid.
- Emerald has been treated as a public utility for tax purposes and received state/federal grants and tax incentives; it holds Ohio EPA permits (Permit to Install, NPDES, air permit) and has been inspected for odors without an EPA violation finding.
- After a Sept. 25, 2019 notice of violation alleging Emerald lost an agricultural exemption, Emerald adjusted feedstock practices to exceed 50% adjacent‑farm manure and appealed to the township BZA (no hearing taken).
- The trial court (Feb. 2, 2021) ruled for Emerald, finding it a public utility exempt from township zoning under R.C. §519.211 and alternatively that it qualified as an agricultural use when >50% feedstock is local manure; Westfield appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Emerald is a "public utility" exempt from township zoning under R.C. §519.211 | Westfield: Emerald is not a public utility and thus is subject to township zoning. | Emerald: It generates and sells electricity to the regulated wholesale grid, is PUCO‑certified, has contracts/interconnection, pays public utility taxes, and provides indiscriminate public service. | Court: Affirmed — Emerald is a public utility and exempt from township zoning. |
| Whether Emerald is a "solid waste facility" excluded from the public‑utility definition exception (R.C. §519.211(A)) | Westfield: Emerald’s permits/exemptions derive from solid‑waste authority (implicating the statutory exception). | Emerald: It is not licensed or permitted as a Chapter 3734 solid waste facility; Ohio EPA has not classified it as such. | Court: Affirmed — record contains no Chapter 3734 permit; Emerald is not a solid waste facility for purposes of §519.211(A). |
Key Cases Cited
- Marano v. Gibbs, 45 Ohio St.3d 310 (1989) (public‑utility status is a mixed question of law and fact; consider public‑service and public‑concern factors).
- A & B Refuse Disposers, Inc. v. Ravenna Twp. Bd. of Trustees, 64 Ohio St.3d 385 (1992) (enumerates flexible multi‑factor test for public‑service and public‑concern characteristics).
- Rumpke Sanit. Landfill, Inc. v. Colerain Twp., 134 Ohio St.3d 93 (2012) (further guidance on public‑utility exemption from local zoning).