Westfield Twp. Zoning Inspector v. Emerald Bioenergy, L.L.C. ( 2021 )

[Cite as Westfield Twp. Zoning Inspector v. Emerald Bioenergy, L.L.C., 2021-Ohio-3843.]
COURT OF APPEALS
MORROW COUNTY, OHIO
FIFTH APPELLATE DISTRICT
THE WESTFIELD TOWNSHIP ZONING JUDGES:
INSPECTOR Hon. William B. Hoffman, P. J.
Hon. John W. Wise, J.
Plaintiff-Appellant Hon. Earle E. Wise, Jr., J.
-vs- Case No. 2021 CA 0001
EMERALD BIOENERGY, LLC
Defendant-Appellee OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Case No. 2020 CV 00053
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 28, 2021
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
DAVID HOMER CATHERINE CUNNINGHAM
ASSISTANT PROSECUTOR KEGLER, BROWN, HILL & RITTER
60 East High Street 65 East State Street, Suite 1800
Mt. Gilead, Ohio 43338 Columbus, Ohio 43215
N. TREVOR ALEXANDER
BENESCH, FRIEDLANDER, COPLAN
& ARANOFF
41 South High Street, Suite 2600
Columbus, Ohio 43215
Morrow County, Case No. 2021 CA 0001 2
Wise, John, J.
{¶1} Appellant The Westfield Township Zoning Inspector appeals the February
2, 2021, decision by the Morrow County Court of Common Pleas, dismissing its Complaint
for Injunction Due to a Zoning Violation filed against Appellee Emerald Bioenergy, LLC.
STATEMENT OF THE FACTS AND CASE
{¶2} The relevant facts and procedural history are as follows:
{¶3} On April 16, 2020, Appellant Westfield Township Zoning Inspector
(Westfield Township) filed a "Complaint for Injunction Due to a Zoning Violation” against
Appellee Emerald Bioenergy, LLC, (Emerald) along with other individually named
defendants who were subsequently dismissed by the trial court. The Complaint sought to
enjoin the business from operating its anaerobic biodigester in the township as if it were
an agricultural use of the land because it was located in a district zoned for agricultural
use only, in which people lived and worked.
{¶4} In paragraph 19 of its Complaint, Appellant asserted “[t]he stench and noise
from the biodigester are constantly emitted from the defendant’s premises at all times of
the day and night. The people of Westfield Township are deprived of the enjoyment of
their property.”
{¶5} In its Answer, at paragraph 19, Appellant stated “as long as at least fifty
percent of the feedstock used in the biodigester is derived from parcels of land contiguous
to or part of parcels otherwise devoted exclusively to agricultural use that are under
common ownership or leasehold, the biodigester facility is an agricultural use exempt
from township zoning under state law and … R.C. 5713.30 is relevant to that
determination.”
Morrow County, Case No. 2021 CA 0001 3
{¶6} On December 14 and December 29, 2020, a bench trial was held.
{¶7} At the bench trial, the trial court heard testimony and received evidence as
follows:
{¶8} Emerald operates an anaerobic biodigester on Morrow County Tax Parcel
R4 1-001-00-123-02. Anaerobic digestion is a natural process by which microorganisms
break down organic matter in a closed space without oxygen and produce biogas that is
used to generate electricity. (T. at 333-334). The Biodigester was built in 2013 as a
renewable energy facility that would process farm and other biological waste and convert
it into renewable energy. (T. at 50, 214-218, 331-334, 364). The Permit to Install the
Biodigester was issued by the Ohio Environmental Protection Agency ("OEPA") in 2012
and allows Emerald to process a variety of biological feedstocks including animal manure,
food wastes and sewage sludge (biosolids), which are used to produce biologically-
derived methane gas that is used to generate electricity, and fertilizer.
{¶9} The Biodigester is located on property owned by Ringler Energy, LLC, a
company owned by Alex Ringler and leased to Emerald. (T. at 190, 328-332). Alex Ringler
and his companies own 510 acres of property and farming operations contiguous to the
Property that are all subject to current agricultural use valuation (CAUV) and include a
hog farm with finishing barns housing 7,000 hogs, row crops and other farming
operations.
{¶10} Testimony was presented by Alex Ringler and Michael Oberfield, Chief
Financial Officer of Renergy, Emerald’s parent company, that the Biodigester is integral
to the adjacent Ringler farming operations. It directly accepts and processes 100% of the
manure from the farm through a closed underground piping system. It also accepts other
Morrow County, Case No. 2021 CA 0001 4
biological feedstocks including food waste and, at one time, biosolids that produce
methane gas within the Biodigester that is used to generate electricity. (T. at 213-216,
331-334). A small portion of that electricity powers the entire Ringler Farm, and the
remainder is sold through Buckeye Power, Inc., a local electric co-op, to the wholesale
electric grid for public consumption. The fertilizer it produces is used on Ringler and other
farm fields. (Tr. 212-218, 329-332). It is a continuing integrated process and system. (Tr.
445-451).
{¶11} John Bentine, an attorney who worked at PUCO and the Attorney General’s
office as counsel to PUCO, was called by Appellant as an expert witness in public utility
issues in the state of Ohio. He testified that Emerald’s name plate generation capacity for
electricity is 850 kW, over three times the minimum 250 kW statutory threshold of the size
that Ohio renewable energy resources are required to have, which subjects it to
government regulation. (T. at 412-414). Atty. Bentine stated that although Emerald does
not generate electricity on the same scale as big coal-fired or nuclear units, it
"nonetheless, is a significant size in terms of its effect on the overall electric system,
especially locally in the area" where it would serve someplace between 500 and 800
homes. (T. at 412-414). He stated that the electricity generated is a "renewable energy
resource" as certified by the Public Utilities Commission of Ohio ("PUCO") since 2014.
(T. at 412-414). As such, Emerald is certified to produce "Renewable Energy Credits"
which are sold into the public market. (T. at 339-344).
{¶12} At its inception, the Biodigester received support from Morrow County and
others. The State of Ohio and United States government have adopted laws providing for
a variety of grants and tax incentives to implement their policies to encourage the
Morrow County, Case No. 2021 CA 0001 5
development and use of renewable energy. (T. at 53-55, 419-420). Emerald received a
$500,000 grant and loan guarantees from the United States Department of Agriculture for
its $5.5 million investment in the facility. (T. at 187-191, 419-420). It also received a public
utility tax exemption and "Conversion Facilities Tax Exemption Certificate" through the
Ohio Development Services Agency for the Biodigester as a solid waste conversion
facility based on a 2016 Ohio Tax Commissioner finding. (T. at 47, 53, 56, 58-60, 67).
{¶13} According to Mr. Oberfield, the first objection received by Emerald from
Westfield Township regarding the Biodigester or its use was the notice of violation it
received on September 25, 2019. (T. at 358-359).
{¶14} Patricia Davies, who at the time was the Morrow County Director of
Operations1, testified that the State of Ohio determines whether an entity is a public utility
for purposes of the personal property tax. (T. at 56-62). Ohio made that determination for
Emerald and has been taxing Emerald as a public utility since at least 2015. (T. at 56-
60). Emerald has also been paying public utility taxes to Morrow County, including
Westfield Township, since 2015, subject to its solid waste energy conversion facility tax
exemption. (T. at 56-60).
{¶15} Ms. Davies worked with Emerald to establish the facility and make
connections for Emerald to obtain federal and state government financial incentives,
including grants and tax exemptions to build a leading-edge renewable energy facility on
the Ringler Farm. (T. at 62-64). Ms. Davies also helped Emerald make connections and
negotiate with the local electric Co-Op and Consolidated for the provision of electricity
from the Biodigester to the grid. (Id.).
1 Patricia Davies is currently the Morrow County Auditor.
Morrow County, Case No. 2021 CA 0001 6
{¶16} Testimony and evidence were also presented with regard to Emerald’s
regulation by state and federal agencies such as the Public Utilities Commission of Ohio
("PUCO"), the Generation Attribute Tracking System ("GATS") for renewable resources,
PJM, the regional transmission organization (RTO) managing the Ohio electric grid, the
Federal Energy Regulatory Commission ("FERC"), and the federal Public Utility
Regulatory Policies Act of 1978 ("PURPA") for Qualifying Small Power Producer. (T. at
338-359).
{¶17} Emerald also has an interconnection agreement with Consolidated Electric
Co-Op, a distribution utility, and contractual and regulatory obligations to Buckeye Power,
which purchases the electricity Emerald generates and puts it in the Ohio electric grid for
consumer use. (T. at 413-41).
{¶18} The Ohio Environmental Protection Agency ("Ohio EPA") also regulates
Emerald. Emerald currently holds multiple environmental permits including: a Permit To
Install and a National Pollutant Discharge Elimination System (NPDES) which includes
Land Application and a Land Management Plan for its fertilizer. (T. at 97-100, 111-112,
129-132). Emerald also has an Air Quality Permit (Regional Air Pollution Control Agency)
which regulates the Biodigester's compressor and flare. (T. at 149-151). The Ohio EPA
permits include the regulation of odors. The Ohio EPA has inspected the Emerald facility
and investigated odor complaints 10 to 15 times and never found an odor violation. (T. at
116-118).
{¶19} In 2012, when the Biodigester was first being constructed, Emerald applied
to the Ohio EPA for an air permit and was advised it did not need one because it met the
agricultural exemption under the Ohio EPA rules. (T. at 149). In 2018, the Ohio EPA
Morrow County, Case No. 2021 CA 0001 7
contacted Emerald and requested that they obtain an air permit for the Biodigester engine
and gas flare because they may no longer meet the Ohio EPA agricultural exemption for
an air permit, which Emerald promptly applied for and received. (T. at 150-152). As part
of the air permitting process, when Emerald filed an air permit application at Ohio EPA's
request, the Ohio EPA provided public notice that an air permit application had been filed.
(Id.)
{¶20} On or about September 25, 2019, the Morrow County Prosecutor sent
Emerald a notice of zoning violation ("n.o.v.") that included a letter from the Westfield
Township Zoning Inspector, Joel Staley, stating "It has come to my attention that Emerald
Bioenergy, LLC has lost its agricultural status and it no longer has an agricultural
exemption. This has been determined by the Ohio EPA on 8/24/2018." The prosecutor
asserted in a separate letter that Emerald's use of land in Westfield Township had
become an "industrial use" that no longer qualified for an agricultural exemption under
the Westfield Township Zoning Resolution or state law, and Emerald must cease its
operations.
{¶21} Emerald timely appealed the decision of the Zoning Inspector and notice of
violation to the Westfield Township Board of Zoning Appeals. No action was ever taken
on that appeal by the BZA, and the matter was never set for hearing.
{¶22} Michael Oberfield testified that after Emerald received the notice of
violation, it immediately began adjusting its feedstock mix to increase manure and
eliminate biosolids in an attempt to address the township's concerns. (T. at 364-372). He
stated that since January 1, 2020, its feedstocks have been comprised of more than 50%
Morrow County, Case No. 2021 CA 0001 8
hog manure from the adjacent Ringler farms, and it no longer accepts biosolids as a
feedstock. (T. at 364-372).
{¶23} On May 12, 2020, Appellant filed a complaint for a statutory injunction in the
Morrow County Common Pleas Court requesting that the trial court find a violation and
enforce the township zoning pursuant to R.C. §519.24.
{¶24} By Judgment Entry filed February 2, 2021, the trial court found in favor of
Appellee Emerald Bioenergy, LLC. It determined that Emerald operates as a public utility
and is not subject to the zoning regulations of Westfield Township. The trial court also
found that as long as Emerald uses at least 50% of its feedstock from hog manure
generated through Ringler Feedlots, LLC, and Ringler Livestock, LLC, it qualifies as land
used exclusively for agricultural purposes and is not subject to zoning.
{¶25} Appellant Westfield Township Zoning Inspector now appeals, raising the
following assignments of error for review:
ASSIGNMENTS OF ERROR
{¶26} “I. APPELLEE EMERALD IS SUBJECT TO THE LAWFUL ZONING
AUTHORITY OF WESTFIELD TOWNSHIP BECAUSE THE TRIAL COURT ERRED
PREJUDICIALLY IN DETERMINING THAT EMERALD’S ANAEROBIC BIODIGESTER
IS A “PUBLIC UTILITY” WITHIN THE MEANING OF R.C. 519.211.
{¶27} “II. APPELLEE EMERALD FAILED TO MEET ITS BURDEN OF PROOF
TO ESTABLISH ITS PERMITS GRANTING EXEMPTIONS OR GOVERNING
OPERATIONS ARE NOT OBTAINED PURSUANT TO REVISED CODE CHAPTER
3744, PLACING THE TRUSTEES, THE ZONING INSPECTOR AND THE CITIZENS OF
Morrow County, Case No. 2021 CA 0001 9
WESTFIELD TOWNSHIP WITHIN THE CLASS OF PEOPLE SOUGHT TO BE
PROTECTED TO THE EXCEPTION TO THE REVISED CODE SECTION 519.211.”
I., II.
{¶28} As both of Appellant’s assignments of error challenge the trial court’s
February 2, 2021, findings, we shall address them together.
{¶29} This matter came before the trial court on a Complaint for statutory
injunction filed by the township, requesting a permanent injunction against Appellee
based upon a violation of a zoning ordinance.
Standard of Review
{¶30} An abuse of discretion standard applies to the trial court's ultimate ruling
denying injunctive relief under Civ.R. 65. Danis Clarkco Landfill Co. v. Clark Cty. Solid
Waste Mgt. Dist., 73 Ohio St.3d 590, 591, 653 N.E.2d 646 (1995), paragraph three of the
syllabus (“The issue whether to grant or deny an injunction is a matter solely within the
discretion of the trial court and a reviewing court will not disturb the judgment of the trial
court in the absence of a clear abuse of discretion.”). An “unreasonable, arbitrary, or
unconscionable” action by the trial court amounts to an abuse of discretion. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). To find an abuse of
discretion, the appellate court must conclude that the trial court's ruling “lacks a ‘sound
reasoning process.’ ” State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, ¶ 14, 972
N.E.2d 528, quoting AAAA Ents., Inc. v. River Place Community Urban Redevelopment
Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).
Morrow County, Case No. 2021 CA 0001 10
{¶31} Appellant herein argues the trial court erred in determining that Emerald is
a public utility within the meaning of R.C. §519.211 and therefore exempt from township
zoning regulations. We disagree.
{¶32} R.C. §519.211 (A), which sets forth limitations on zoning powers, provides:
Except as otherwise provided in division (B) or (C) of this section,
sections 519.02 to 519.25 of the Revised Code confer no power on any
board of township trustees or board of zoning appeals in respect to the
location, erection, construction, reconstruction, change, alteration,
maintenance, removal, use, or enlargement of any buildings or structures
of any public utility or railroad, whether publicly or privately owned, or the
use of land by any public utility or railroad, for the operation of its business.
As used in this division, “public utility” does not include a person that owns
or operates a solid waste facility or a solid waste transfer facility, other than
a publicly owned solid waste facility or a publicly owned solid waste transfer
facility, that has been issued a permit under Chapter 3734. of the Revised
Code or a construction and demolition debris facility that has been issued a
permit under Chapter 3714. of the Revised Code.
{¶33} While the above-statute exempted public utilities from zoning restrictions,
the General Assembly did not define “public utility” insofar as it relates to R.C. 519.211.
{¶34} The definition of “Public Utility” has therefore been developed through case
law. The Ohio Supreme Court cases of Marano v. Gibbs, 45 Ohio St.3d 310, 544 N.E.2d
635 (1989), A & B Refuse Disposers, Inc. v. Ravenna Twp. Bd. of Trustees, 64 Ohio St.3d
385, 596 N.E.2d 423 (1992), and Rumpke Sanit. Landfill, Inc. v. Colerain Twp., 134 Ohio
Morrow County, Case No. 2021 CA 0001 11
St.3d 93, 2012-Ohio-3914, 980 N.E.2d 952, ¶¶ 16-27, offer guidance as to what
constitutes a public utility for purposes of R.C. 519.211.
{¶35} In Marano v. Gibbs, the Ohio Supreme Court that “the determination of
entities as public utilities is a mixed question of law and fact.” Marano v. Gibbs at 311,
544 N.E.2d 635. “[I]n determining public utility status” courts must examine “the character
of the business in which the entity is engaged.” Id., citing Ohio Power Co. v. Attica, 23
Ohio St.2d 37, 41, 261 N.E.2d 123 (1970). “ ‘To constitute a “public utility,” the devotion
to public use must be of such character that the product and service is available to the
public generally and indiscriminately or there must be the acceptance by the utility of
public franchises or calling to its aid the police power of the state.’ ” Id., quoting S. Ohio
Power Co. v. Pub. Util. Comm., 110 Ohio St. 246, 143 N.E. 700 (1924).
{¶36} The Court set forth two factors, i.e., public concern and public service, which
must be taken into consideration to determine whether an entity is a public utility for
purposes of R.C. 519.211. “[A]n entity may be characterized as a public utility if the nature
of its operation is a matter of public concern, and membership is indiscriminately and
reasonably made available to the general public,” otherwise known as public service.
Marano, 45 Ohio St.3d at 311, 544 N.E.2d 635.
{¶37} The Court further developed the definition of “public utility” in A & B Refuse
Disposers, Inc. v. Ravenna Twp. Bd. of Trustees. A & B Refuse Disposers, Inc. operated
a landfill in Ravenna Township, Portage County. A & B Refuse acquired a 66–acre parcel
of land adjacent to the landfill intending to construct a truck terminal and offices. After
discussing the proposed use with township officials, A & B Refuse was advised that the
proposed use would probably not be approved for rezoning. A & B Refuse filed a
Morrow County, Case No. 2021 CA 0001 12
declaratory-judgment action against the Ravenna Township Board of Trustees, asking for
a determination of whether its landfill operation was subject to regulation under the
township zoning code.
{¶38} In A & B Refuse, the Court “significantly expanded upon the two factors
identified in Marano, holding that ‘the determination of whether a particular entity is a
public utility for the purpose of exemption from local zoning restrictions requires a
consideration of several factors related to the ‘public service’ and ‘public concern’
characteristics of a public utility.’ ” Id. at 389, 596 N.E.2d 423.
{¶39} “[T}he determination of public utility status requires a flexible rule, a rule
which often intertwines the factors considered in relation to the concepts of ‘public service’
and ‘public concern.’ ” Id.{¶40} As for the public-service factor, the Court held that one must look at whether
there:
. . . is a devotion of an essential good or service to the general public which
has a legal right to demand or receive this good or service. S. Ohio Power
Co. v. Pub. Util. Comm. (1924), 110 Ohio St. 246, 252, 143 N.E. 700, 701,
quoting Allen v. RR. Comm. of California (1918), 179 Cal. 68, 175 P. 466;
Freight, Inc. v. Northfield Ctr. Bd. of Twp. Trustees (1958), 107 Ohio App.
288, 292–293, 8 O.O.2d 212, 215, 158 N.E.2d 537, 540; Motor Cargo v.
Richfield Bd. of Twp. Trustees (1953), 67 Ohio Law Abs. 315, 318, 52 O.O.
257, 258, 117 N.E.2d 224, 226. See, generally, 2 Anderson, American Law
of Zoning (3 Ed.1986) 568, Section 12.32. * * * [T]he entity must * * * provide
its good or service to the public indiscriminately and reasonably. Marano v.
Morrow County, Case No. 2021 CA 0001 13
Gibbs, [45 Ohio St.3d] at 311, 544 N.E.2d at 636. * * * Further, this attribute
requires an obligation to provide the good or service which cannot be
arbitrarily or unreasonably withdrawn.
{¶41} A & B Refuse, 64 Ohio St.3d at 389, 596 N.E.2d 423.
{¶42} “The fact that a private business provides a good or service associated with
the usual subject matter of a public utility does not give rise to a presumption that it is
devoted to public service.” Id., citing S. Ohio Power Co. v. Pub. Util. Comm., 110 Ohio St.
246, 143 N.E. 700 (1924), paragraph one of the syllabus.
{¶43} As for the public-concern factor, the Court held:
Normally, a public utility occupies a monopolistic or ogopolistic [sic]
position in the marketplace. Greater Fremont, Inc. v. Fremont (N.D.Ohio
1968), 302 F.Supp. 652, 664–665. See, also, Mammina v. Cortlandt Zoning
Bd. of Appeals (1981), 110 Misc.2d 534, 442 N.Y.S.2d 689, 691. This
position gives rise to a public concern for the indiscriminate treatment of that
portion of the public which needs and pays for the vital good or service
offered by the entity. Factors utilized in determining whether an enterprise
conducts itself in such a way as to become a matter of public concern
include the good or service provided, competition in the local marketplace,
and regulation by governmental authority. * * * [N]one of these factors is
controlling. Nevertheless, in a case where the business enterprise serves
such a substantial part of the public that its rates, charges and methods of
operation become a public concern, it can be characterized as a public
Morrow County, Case No. 2021 CA 0001 14
utility. Indus. Gas Co. v. Pub. Util. Comm., supra, 135 Ohio St. [408] at 414,
21 N.E.2d [166] at 168 [1939].
{¶44} (Citations and footnotes omitted.) Id. at 388, 596 N.E.2d 423.
{¶45} The Court further held that “the determination of public utility status requires
a flexible rule, a rule which often intertwines the factors considered in relation to the
concepts of ‘public service’ and ‘public concern.’ ” Id.{¶46} Additionally, the Court determined that the business claiming public-utility
status bears the burden of offering sufficient evidence on these factors. Id.Public–Service/ Public Concern Factors
{¶47} Upon review of the record before us, we find that the trial court heard
testimony and received evidence as to the following:
{¶48} On August 13, 2012, the Ohio EPA issued Ringler Energy, LLC, a permit to
operate an anaerobic digester. This permit was subsequently transferred to Emerald
Bioenergy, LLC.
{¶49} On March 15, 2014, Emerald was granted a permit by the PUCO to operate
as a “Renewable Energy Resource Generating Facility”, which allows it to generate
methane gas by anaerobic digestion to creating a source of renewable energy. As a
certificate holder, Emerald is subject to all applicable rules and regulations of the PUCO.
{¶50} Both the State of Ohio and Morrow County treat Emerald as a public utility
for tax purposes. Emerald pays public utility taxes on both real and personal property to
Morrow County and has been doing so since 2015. Emerald received an exemption from
public utility personal property taxes on the Biodigester since 2015 because it is certified
as an Energy Solid Waste Conversion and Thermal Efficiency Improvement Facility.
Morrow County, Case No. 2021 CA 0001 15
{¶51} Emerald produces electrical energy from methane gas derived from
agricultural and other biological waste fuel sources which is collected and used to power
an electric generator. Emerald then provides electricity to the general public. It provides
the electricity to the Ohio energy grid, which indiscriminately provides same to the public,
i.e. Ohio consumers, through Buckeye Power and the local electric cooperative. Emerald
has an interconnection agreement with Consolidated Co-Op, a distribution utility and a
purchase agreement with Buckeye Power. (T. at 415). Emerald’s interconnection
agreement with Consolidated Co-Op contains provisions governing certain factors of the
facility.
{¶52} The only market for the electricity generated by Emerald is the power grid
and the electric cooperative. So long as it stays in operation, Emerald does not have the
ability to arbitrarily or unreasonable withdraw its services, as it is a closed system which
requires the methane it produces to be used to generate electricity. Emerald cannot stop
generating electricity without ceasing the balance of its operations. In addition to the terms
of the contracts with Buckeye Power and Consolidated Co-Op, the sale of the electricity
is subject to federal, state and PJM regulations.
{¶53} PJM, the regional transmission organization, holds authority delegated by
the FERC over management of Ohio’s electrical transmission grid and wholesale
generation market, and provides the only market for wholesale energy generated in Ohio.
{¶54} Emerald indiscriminately provides electric energy to the Ohio energy grid,
which is regulated, and indiscriminately provides energy to consumers in the state Ohio
and the regional electric power system.
Morrow County, Case No. 2021 CA 0001 16
{¶55} Once Emerald provides electricity to the wholesale power grid, it has no
control over what customers receive or use it. (T. at 436).
{¶56} Emerald’s contracts require it to provide energy to the grid, which cannot be
arbitrarily or unreasonably withdrawn.
{¶57} Emerald’s generation also indiscriminately provides renewable energy
credits through its PUCO renewable energy resource certification and the Generation
Attribute Tracking System (GATS). Emerald’s operations and PUCO certification require
it to provide renewable energy credits, which cannot be arbitrarily or unreasonably
withdrawn.
{¶58} Testimony was also presented that Emerald is under contract to receive the
waste stream it uses to generate the electricity, and that it would accept any qualified
material from any customer willing to pay the requisite fee.
{¶59} Based on the foregoing, including the governmental regulations and
oversight present in this matter, we do not find that the trial court abused its discretion in
holding that Emerald Bioenergy is a public utility and is therefore exempt from the
Westfield Township zoning laws pursuant to R.C. §519.211.
{¶60} Because the trial court herein found an alternate, independent ground to
support its finding that Appellee is a public utility, not subject to zoning regulations, which
this Court found to be supported by the record, we find any analysis as to the “agricultural
use exemption” unnecessary under the two-issue rule. “By virtue of the two-issue rule, a
decision which is supported by one or more alternate grounds properly submitted is
invulnerable to attack on one issue only.” Freeport Lodge # 415 Free & Accepted Masons
of Ohio v. MC Mineral Company, 5th Dist. Guernsey No. 18 CA 2, 2018-Ohio-3783, ¶ 12,
Morrow County, Case No. 2021 CA 0001 17
citing Suermondt v. Lowe, 5th Dist. Morgan No. 10-CA-2, 2011-Ohio-5752, ¶ 22, citing
Hampel v. Food Ingredients Specialties, Inc., 89 Ohio St.3d 169, 185, 729 N.E.2d 726(2000).
{¶61} Appellant’s first assignment of error is overruled.
II.
{¶62} Appellant, in its second assignment of error, argues that the trial court erred
in finding that Emerald does not operate a “solid waste facility” for purposes of R.C.
§519.211(A).
{¶63} As set forth above, R.C. §519.211(A) “public utility” does not include a
person that owns or operates a solid waste facility or a solid waste transfer facility, other
than a publicly owned solid waste facility or a publicly owned solid waste transfer facility,
that has been issued a permit under Chapter 3734. of the Revised Code.”
{¶64} Upon review, we find no evidence in the record to prove, or otherwise
suggest, that Emerald was ever “issued a permit under Chapter 3734. of the Revised
Code”. Rather, evidence was presented to the contrary. Mike Oberfield, CFO of Emerald,
testified clearly that Emerald is not licensed as a solid waste facility. (T. at 390-391).
Further, the EPA has not classified the Biodigester as a solid waste facility, nor does it
require Emerald to obtain a solid waste permit. (T. at 110-112, 130-133, 149-157).
Morrow County, Case No. 2021 CA 0001 18
{¶65} Based on the foregoing, we find Appellant's second assignment of error not
well-taken and hereby overrule same.
{¶66} Accordingly, the judgment of the Court of Common Pleas, Morrow County,
Ohio, is affirmed.
By: Wise, John, J.
Hoffman, P. J., and
Wise, Earle, J., concur.
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