Biglin v. S (In re Black Fork Wind Energy, L. L.C.)

124 N.E.3d 787, 2018 Ohio 5206, 156 Ohio St. 3d 181
CourtOhio Supreme Court
DecidedDecember 27, 2018
DocketNo. 2017-0412
StatusPublished
Cited by12 cases

This text of 124 N.E.3d 787 (Biglin v. S (In re Black Fork Wind Energy, L. L.C.)) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Biglin v. S (In re Black Fork Wind Energy, L. L.C.), 124 N.E.3d 787, 2018 Ohio 5206, 156 Ohio St. 3d 181 (Ohio 2018).

Opinions

DeGenaro, J.

*181{¶ 1} Appellants, Gary J. Biglin, Karel A. Davis, Brett A. Heffner, Alan Price, Catherine Price, Margaret Rietschlin, and John Warrington, appeal from orders of the Power Siting Board granting a motion filed by intervening appellee, Black Fork Wind Energy, L.L.C. ("Black Fork"), requesting a two-year extension of Black Fork's certificate to construct a proposed wind farm. Appellants argue that the two-year extension amounted to an "amendment" of the certificate under R.C. 4906.06(E) and 4906.07(B) and that the board therefore erred by granting Black Fork's motion rather than complying with the statutory process for amending a certificate. Appellants also assert that the board's failure to treat the two-year extension as an amendment allowed Black Fork to evade current turbine-setback requirements that apply when an existing certificate is amended.

{¶ 2} We conclude that the board's extension of Black Fork's certificate constitutes an amendment and that the board acted unlawfully in granting Black Fork's motion rather than following the statutory procedures for amending a certificate. Because this error prejudiced appellants, we reverse the board's orders and remand this cause for further proceedings consistent with this opinion.

Facts and Procedural Background

{¶ 3} This is the second appeal involving the proposed Black Fork Wind Energy Project. As we previously explained:

*182In March 2011, Black Fork filed an application to construct a wind farm consisting of up to 91 turbines in portions of Crawford and Richland Counties. In addition to the turbines, Black Fork's project includes access roads, electrical collection lines, a construction-staging area, a concrete-batch plant, a substation, and an operation and maintenance facility. The project area covers approximately 24,000 acres of land, and the facilities will be located on approximately 14,800 acres of leased private land with 150 participating landowners. According to Black Fork's application, voluntary agreements have been signed by the participating property owners within the project area. Black Fork claims that the facility will provide up to 200 megawatts of renewable energy "with effectively *790zero air emissions and waste generation."

In re Application of Black Fork Wind Energy, L.L.C. , 138 Ohio St.3d 43, 2013-Ohio-5478, 3 N.E.3d 173, ¶ 2.

{¶ 4} After Black Fork filed its initial application, several local political subdivisions and individuals-including the appellants in this case, who claimed to live near the leased land or within the project boundaries-intervened in the board proceeding. In October 2011, the board conducted an evidentiary hearing, and in January 2012, it granted Black Fork a certificate to construct the proposed wind farm.

{¶ 5} The board's order adopted stipulated conditions agreed to by several of the parties and the board's staff (but not by the appellants in this case), including "condition No. 70," which stated that the certificate "shall become invalid if the Applicant has not commenced a continuous course of construction of the proposed facility within five (5) years of the date of journalization of the certificate." Because the board journalized its decision on January 23, 2012, Black Fork had until January 23, 2017, to commence construction.

{¶ 6} Five of the seven appellants involved in the present case appealed to this court, but in December 2013, we affirmed the board's order granting Black Fork's certificate. See Black Fork Wind Energy at ¶ 23-24.

{¶ 7} On September 12, 2014, Black Fork filed the motion that is the subject of this appeal with the board under the same case number (No. 10-2865-EL-BGN) in which Black Fork's certificate had been granted, seeking to extend its certificate by two years, with a new commencement-of-construction deadline of January 23, 2019. Black Fork argued that the delay caused by the prior appeal to this court combined with recent changes in the energy market had hampered its ability to commence construction of the project. Most of the appellants-who were then acting pro se-filed responses opposing Black Fork's motion to extend the certificate.

*183{¶ 8} Also on September 12, 2014, Black Fork filed an application to amend its certificate, which created a new proceeding before the board with a new case number (No. 14-1591-EL-BGA).1 In its application to amend, Black Fork asserted that two new turbine models had become available since it originally applied for a certificate and that the new models would increase the productivity of the project. Black Fork therefore requested that the board amend its certificate to include the two new models. Some of the appellants involved in the present case intervened in Black Fork's amendment-application proceeding and opposed Black Fork's request.

{¶ 9} As will be explained more fully below, Ohio law requires the board's staff to investigate any application to amend a siting certificate and to issue a report of its findings. Accordingly, the board's staff investigated Black Fork's amendment application in case No. 14-1591-EL-BGA and, in August 2015, filed a report recommending approval of the application. Later that month, on August 27, 2015, the board issued an order formally approving it. Notably, the board determined that the turbine-setback requirements in place at the time it initially certified Black Fork's proposed wind farm continued to apply to Black Fork's project-notwithstanding the legislature's enactment of a more stringent *791turbine-setback law in 2014, which provides in two different statutes that "[a]ny amendment made to an existing certificate after the effective date of" of the new legislation-September 15, 2014-"shall be subject" to the new setback requirements. R.C. 4906.20(B)(2)(b)(ii) and 4906.201(B)(2). Even though Black Fork had labeled the application to change the certificate as one seeking to "amend" it and even though the board's staff had conducted an investigation under a new case number, the board reasoned that the changes proposed in Black Fork's amendment application "[did] not constitute an amendment under R.C. 4906.201(B)(2)" and that therefore the new setback requirements did not apply. No one-including the appellants in the present case-appealed the board's order in case No. 14-1591-EL-BGA approving Black Fork's 2014 amendment application.

{¶ 10} About seven months later, on March 24, 2016, the board in the case now before us granted Black Fork's motion to extend the certificate. Appellants filed a rehearing application, which the board denied in an order issued on February 2, 2017. Appellants then filed this appeal, raising four propositions of law.

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Cite This Page — Counsel Stack

Bluebook (online)
124 N.E.3d 787, 2018 Ohio 5206, 156 Ohio St. 3d 181, Counsel Stack Legal Research, https://law.counselstack.com/opinion/biglin-v-s-in-re-black-fork-wind-energy-l-lc-ohio-2018.