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The solar energy “boom” in Ohio continues to encounter opposition from local communities that would be home to large-scale solar developments.  Yesterday, the Ohio Power Siting Board (OPSB) denied a solar project application in Defiance County due to “general opposition by local citizens and governmental bodies.”  Just before the holidays, a project in Greene County met the same fate.  The cases now bring the number of solar project rejections in Ohio to three. Each one highlights the role community opposition can play in project denial, particularly when local governments are part of that opposition.  

How does OPSB review a proposed solar project?

The OPSB is responsible for reviewing applications for solar energy projects that are over 50 MW in capacity.  Currently, the members of the OPSB include the chair of the Public Utilities Commission of Ohio, directors of the EPA and departments of Agriculture, Development, Health, and Natural Resources, and a public member, along with four non-voting legislators.  In the future, a county commissioner and township trustee will also join in the OPSB review process.

Ohio law requires the OPSB to analyze eight criteria when reviewing an application and deciding whether to grant a certificate to construct a major utility facility.  The law states in Ohio Revised Code 4906.10(A) that OPSB shall not grant a certificate unless it finds and determines all of the following:

(1) The basis of the need for the facility if the facility is an electric transmission line or gas pipeline;

(2) The nature of the probable environmental impact;

(3) That the facility represents the minimum adverse environmental impact, considering the state of available technology and the nature and economics of the various alternatives, and other pertinent considerations;

(4) In the case of an electric transmission line or generating facility, that the facility is consistent with regional plans for expansion of the electric power grid of the electric systems serving this state and interconnected utility systems and that the facility will serve the interests of electric system economy and reliability;

(5) That the facility will comply with Chapters 3704., 3734., and 6111. of the Revised Code and all rules and standards adopted under those chapters and under section 4561.32 of the Revised Code. In determining whether the facility will comply with all rules and standards adopted under section 4561.32 of the Revised Code, the board shall consult with the office of aviation of the division of multi-modal planning and programs of the department of transportation under section 4561.341 of the Revised Code.

(6) That the facility will serve the public interest, convenience, and necessity;

(7) In addition to the provisions contained in divisions (A)(1) to (6) of this section and rules adopted under those divisions, what its impact will be on the viability as agricultural land of any land in an existing agricultural district established under Chapter 929 of the Revised Code that is located within the site and alternative site of the proposed major utility facility. Rules adopted to evaluate impact under division (A)(7) of this section shall not require the compilation, creation, submission, or production of any information, document, or other data pertaining to land not located within the site and alternative site.

(8) That the facility incorporates maximum feasible water conservation practices as determined by the board, considering available technology and the nature and economics of the various alternatives.

Once all required elements of an application for a certificate are submitted and the application is complete, which can take many months, the OPSB staff and board begins its evaluation of the application to decide whether to grant the certificate.  The review process, which might include intervening parties and multiple hearings, can last for many months or even a year or more.  During that time, the OPSB must examine the application to determine if it meets the criteria in ORC 4906.10(A), relying on the expertise and recommendations of OPSB technical staff. 

Recently approved solar projects

In December, the OPSB approved the application of Springwater Solar, a 155 MW solar project proposed to be built on 1,085 acres in Madison and Franklin counties, holding that the project met all of the criteria in ORC 4906.10(A).  The decision brings the total of approved solar projects in Ohio to 34, representing 6,175 MW to be built on 63,554 acres, as illustrated on the map below.  The map also displays additional pending applications totaling 3,139 MW and 29,076 acres.

Source:  Ohio Power Siting Board, available at https://opsb.ohio.gov/about-us/resources/solar-farm-map-and-statistics.

Recently denied solar projects

Two solar project applications recently reviewed by OPSB did not receive a green light from the board.  In December, the OPSB denied an application by Kingwood Solar that proposed to construct a 175 MW solar facility on 1,200 acres in Greene County.   And on January 18, the OPSB denied a Cepheus Energy proposal to construct a 68 MW solar project on 649 acres in Defiance County.  Before those two rejections, the OPSB had only previously denied one solar project application—the Birch Solar application rejected last October.  In all three instances, the OPSB based its denial on ORC 4906.10(A)(6), stating that the projects would fail to serve the “public interest, convenience, and necessity” due to general opposition.

In the Cepheus application, the board focused on local public interaction and participation, reviewing public testimony and 600 pages of public comments on the project.  The board also noted that seven local governments had expressed concern or opposition to the project, including the Defiance Soil and Water Conservation District, Delaware and Sherwood Township trustees, Defiance County Economic Development Office, Defiance County Board of Commissioners, Delaware Township Fire Department, and Sherwood Area Economic Development Corporation.

The interests of these impacted local government bodies was “especially compelling” given that the organizations have the responsibility for preserving the health, safety, and welfare of their citizens, OPSB noted.  Stating that there was “general opposition from local citizens and governmental bodies” and that local impacts would outweigh the project’s benefits, the board concluded that the project would not serve the public interest, convenience, and necessity.

The Cepheus rejection is similar to the Kingwood Solar project denied by OPSB in December.  In that case, the board reviewed Kingwood’s assertions of the positive economic impacts and renewable energy choices the project would bring the community, then focused on local responses to the project.  About 76% of those testifying during a 6.5-hour hearing were opposed to the projects and expressed an overarching concern that the project was not compatible with local land use plans and would “unalterably change the rural nature of the community.”  The board also noted concerns by the Citizens for Greene Acres, a local group that intervened in the case, regarding the unique characteristics of the wildlife, parks, recreation, cultural, and historic areas that would be affected and the high density of residents that would reside within 500 feet of the project.

But once again, a critical concern for OPSB was the clear opposition of local governments impacted by the project.  Cedarville Township, Xenia Township, Miami Township, and the Greene County Commissioners had all intervened in the case and adopted resolutions opposing the project.  Although Kingwood Solar had agreed to address 39 conditions of development that it had offered in a Stipulation agreement, none of the local governments agreed to the Stipulation and instead opposed approval of the project.  OPSB concluded that local opposition, “especially as demonstrated by Greene County and the three townships affected by the project,” warranted a conclusion that the project would not serve the public interest, convenience, and necessity.

Now what happens?

It’s typical in a rejection of a utility application for the developer applicant to exercise the right to request a rehearing. That has already occurred for the Birch Solar and Kingwood Solar projects, and we can expect a rehearing request for the Cepheus denial that just occurred on January 19.  Interestingly, it was not just the solar developer that requested a rehearing of the Kingwood project application—Greene County, the affected townships, and the Citizens for Greene Acres also requested a rehearing.   While those parties stated support for the decision of the OPSB that denied the certificate, they argue that in its findings, OPSB failed to determine that there were many other grounds for denying the certificate such as incompatibility with local land use planning, incapacitation of 1,025 acres of productive farmland, and negative local economic impacts. 

Now we await the determinations by OPSB on the rehearing applications.  The projects are each on hold, and construction cannot move forward unless the OPSB reverses its decision and approves the applications. 

More questions

The recent decisions by OPSB leaves us asking a few questions.  Does three rejections establish a trend in solar project denials due to community opposition?  Did the communities involved in the 34 solar projects approved by OPSB oppose those projects?  Do the local communities in the projects that are still pending before the OPSB oppose or support the projects, and how will community voices affect the review of those projects?  While we don’t have the answers, we’ll keep monitoring developments in large-scale solar development as we consider these important questions.

It’s a common problem in Ohio: a dispute between two neighbors over connecting to a subsurface drainage tile system that crosses property lines.  Can one neighbor cut off the other neighbor's access to a tile?  Can one go onto the other’s property to maintain the tile?  If one replaces their system, can they still connect to the other’s tile?  Answers to neighbor drainage questions can be, like subsurface water, a little murky.  But a recent appeals court decision on a Licking County drainage dispute provides a few clear answers.

The drainage system at issue.  Landowner Foor’s clay subsurface drainage system had been on his farm for over fifty years.  Foor’s system connected to a larger drainage tile that ran across neighbor Helfrich’s property and eventually emptied into a pond on Helfrich's land. Foor and his predecessors had used and maintained the line on Helfrich’s property prior to Helfrich’s ownership.

The dispute.  Foor planned to replace his old system and also offered to replace the tile he connected to on neighbor Helfrich’s property.  Helfrich refused the replacement.  During installation of Foor’s tile, Helfrich dug up the tile area near the boundary and filled the hole with rocks and refuse, after which water welled up and flowed over the properties rather than through the tile on Helfrich’s property.  Foor installed a standpipe on his side of the boundary.  Helrich filed a complaint against Foor, claiming that Foor’s drainage was excessive and harmful.  Foor responded by asking the court to establish his rights to a drainage easement and irrevocable license to use the property where the tile ran across Helfrich’s property. A jury ruled in favor of Foor, awarding him $30,000 in damages and both an easement and irrevocable license where the tile ran across Helfrich’s property.

The appeal.  The Fifth District Court of Appeals affirmed two conclusions on the drainage rights of the two neighbors:

• First, the court held that Foor’s replacement of the pre-existing subsurface drainage system was not an "alteration" of the flow of surface water that would trigger Ohio’s “reasonable use” rule for drainage.  The reasonable use rule allows a legal claim when an alteration of surface water flow causes an unreasonable interference with someone’s property.  Because the newly installed tile did not increase the amount of water draining from Foor’s property and maintained the same amount of drainage that had occurred for over fifty years, the court concluded there was no “alteration” of surface water flow. Without an alteration, the reasonable use rule did not apply and Helfrich did not have a claim against Foor based on the reasonable use rule.
• Second, the court refused to overturn the jury’s award of a drainage easement and irrevocable license across Helfrich’s land to Foor.  Helfrich argued there was not sufficient evidence for the jury’s verdict but the court disagreed. The jury determined that an “easement by estoppel” existed when Helfrich purchased the property, based on evidence that the easement was apparent and not hidden to Helfrich when he purchased the property; that Foor and his predecessors relied on the drainage access and had previously repaired the tile on the neighboring property; and that the prior owners of the Helfrich property had gone along with Foor’s maintenance and use of the drainage tile on their land.  Likewise, the court held there was sufficient evidence to support the jury’s conclusion that the previous owners of the Helfrich property had granted the prior owners of the Foor property a “license” or right to enter their property and maintain the tile.  The jury determined that substantial investment by Foor and his predecessors suggested that the license was intended to be permanent, and the appeals court found that sufficient evidence also existed to support that conclusion.

How does this affect future drainage disputes between neighbors?  The Fifth District decision provides useful precedent for the difficult questions neighbor drainage disputes raise. The case supports the argument that a landowner has a legal right to maintain a subsurface drainage system that crosses property lines.  As long as there is not an “alteration” of surface water flow and history shows prior use, reliance, and maintenance of the connecting tile line on a neighbor’s property, a landowner can be in a strong legal position for continued use and maintenance of the tile.  Will other appellate courts agree with the Fifth District’s analysis, or will Helfrich ask the Ohio Supreme Court to review the decision?  Answers to those questions, like subsurface water, are a little murky.

Read the Fifth Appellate District's decision in Helfrich v. Foor Family Investments.

Highlighting a continuing trend in opposition to solar energy development across the state, the Ohio Power Siting Board has for the first time denied the application of a large-scale solar energy project.  After a string of 34 OPSB-approved projects since 2018, the Birch Solar 1 project became the board's first denial when the OPSB determined the project would not serve the public interest.  

The proposed project.  The Birch Solar application proposed a 300 MW facility in Allen and Auglaize counties with solar panels on 1,410 acres and a total project area of 2,345 acres.  Of the total, 2,132 acres are currently in agricultural use. The project would also include 22.5 miles of gravel access roads, an operations and maintenance building, underground and aboveground electric collection lines, meteorological towers, weather stations, inverters and transformers, a collector substation, a point of interconnection switchyard, and a 345-kilovolt generation interconnection electric transmission line. A six-foot cedar post perimeter fence would secure the project, evergreen fencing would limit impacts to neighboring viewsheds, and solar panels would be setback a minimum of 300 feet from adjacent non-participating residences and roadways.

OPSB’s review.  The OPSB had the duty of reviewing the project application to determine whether it satisfied the legal criteria in Ohio Revised Code 4906.10(A) for siting a major utility in Ohio.  For a solar project, the criteria includes parts (A)(2) through (8):

2. The nature of the probable environmental impact;
3. That the facility represents the minimum adverse environmental impact, considering the state of available technology and the nature and economics of the various alternatives, and other pertinent considerations;
4. That the facility is consistent with regional plans for expansion of the electric power grid of the electric systems serving this state and interconnected utility systems and that the facility will serve the interests of electric system economy and reliability;
5. That the facility will comply with Chapters 3704., 3734., and 6111. of the Revised Code and all rules and standards adopted under those chapters and under section 4561.32 of the Revised Code;
6. That the facility will serve the public interest, convenience, and necessity;
7. What its impact will be on the viability as agricultural land of any land in an existing agricultural district established under Chapter 929. of the Revised Code that is located within the site and alternative site;
8. That the facility incorporates maximum feasible water conservation practices as determined by the board, considering available technology and the nature and economics of the various alternatives.

The “public interest” factor and public opposition.  OPSB focused most of its analysis of the Birch Solar application on part (A)(6), that the facility “will serve the public interest, convenience, and necessity.” The board explained that the question of whether an application serves the public interest “must be examined through a broad lens and in consideration of impacts, local and otherwise, from the Project.”  The OPSB acknowledged that there can be potential public benefits to a proposed solar facility such as energy generation, economic benefits from employment and tax revenues, air quality and climate improvements, protecting landowner rights, and preserving agricultural land use.  But the board stated that it must weigh a project’s benefits against its impacts, especially impacts to those living near it.  To do so, the board reviewed the application, evidence, and comments on Birch Solar and identified a primary concern:  uniform and consistent public opposition to the project. 

The two counties and four townships where Birch Solar would locate all opposed the project.  Acting under new legal authority granted by Ohio’s legislature last year, Auglaize County has restricted large-scale solar development in all incorporated parts of the county and Allen County has established most of the county as restricted from solar development.  The Birch Solar application is unaffected by the designations since it was in process and grandfathered in before the new law, but OPSB noted that had the new law been in place, the county restrictions would have prohibited the project. 

OPSB also reviewed evidence submitted by Allen County officials stating that there would be 1,278 residences, four schools, and six churches within one mile of Birch Solar’s project area, and that the residents shared concerns about the project’s lack of dedicated local power; its impact on land use, property values, drinking water, groundwater, drainage, and roadways; its decommissioning plan; and negotiations on distributing “payment in lieu of taxes” revenue to local governments.

Of the hundreds of public comments submitted on the Birch Solar application, OPSB determined that approximately 80% of the comments were in opposition to the project and that opposition reasons were similar to those raised by the local governments.  Birch Solar argued that it had agreed to 40 stipulated conditions that would address opposition concerns and had offered to make “good neighbor” payments of $10--$50,000 and property value adjustments to adjacent landowners.  Even so, the OPSB concluded that Birch Solar would not serve the public interest, convenience, and necessity requirement because of “unanimous and consistent opposition to the Project by the government entities whose constituents are impacted by the Project.”

What’s next?  The battle may not be over.  Birch Solar has the right to request a rehearing and reconsideration of its application within 30 days of the OPSB decision.  For now, the board’s denial of the project might invigorate opposition groups that have formed in areas where projects are proposed.  But note that on the same day OPSB denied Birch Solar, it approved Pleasant Prairie Solar in Franklin County, a 250 MW facility with a 2,400 acre project area and Harvey Solar, a 350 MW project of 2,630 acres in Licking County.   And 15 more projects totaling 3,266 MW are currently pending before the OPSB.  Whether local opposition will prohibit any of those projects is an issue we’ll be watching.

Read more about the Birch Solar project in the OPSB case docket at https://opsb.ohio.gov/cases/20-1605-el-bgn.

Fall harvest is a time of year when we hear complaints from neighbors and community residents about what we do in agriculture.  Dust, grain bin dryers, equipment taking up the road, working late into the night or early in the morning ... these are the inconveniences of living in an agricultural area.  But when do these activities become legally problematic as a “nuisance” to neighbors and others?  Not often, due to Ohio’s Right to Farm Law.  Even so, the Right to Farm Law expects us to conduct our agricultural activities according to regulations and practices that may reduce the nuisance impacts of farming, and it gives us nuisance protection when we do so.

Enacted in 1982, Ohio’s Right to Farm Law offers a nuisance defense for farming activities under certain conditions.  Ohio was one of many states that passed a Right to Farm Law in the 1980s after the highly publicized Arizona case of Spur Industries v. Del E. Webb.  In that case, the developer of a retirement community in Arizona sought to shut down a cattle feedlot that it claimed was a nuisance to its community residents.  But the Arizona Supreme Court noted that the developer “came to the nuisance,” making the previously existing feedlot activities a nuisance only because the developer chose to locate residences near the feedlot, in an agricultural area. 

Ohio adopted this “coming to the nuisance” approach in its Right to Farm Law soon after the Spur Industries case.  The law’s intent is to protect agricultural landowners from nuisance claims made by those who move into an existing agricultural area and later complain about the agricultural activities occurring in the area.  If faced with a nuisance complaint by someone who “came to the nuisance,” an agricultural landowner can use the Right to Farm Law as a defense against the complaint.

How the Right to Farm Law works

The Right to Farm Law has three requirements a landowner must meet to use the law as a defense against a nuisance claim.

1. The agricultural activities that are the source of the nuisance complaint must be on qualifying land, which includes:
2. 1. Land enrolled with the county auditor as “agricultural district land,” (which is not a zoning designation) or
   2. Land “devoted exclusively to agricultural use” under Ohio’s Current Agricultural Use Valuation law.

Both of these provisions establish the same criteria for the land:  it must be either ten acres or more of land devoted to commercial agricultural production, or if less than ten acres and devoted to commercial agricultural production, it must generate a gross average annual income of $2500.  Certain land devoted to bioenergy, biomass, methane, or electric or heat energy production also qualifies, if contiguous to other qualifying land, as can land under government conservation and land retirement programs. 

Early versions of the Right to Farm Law required that the land be enrolled in the “agricultural district program” with the county auditor, not to be confused with having a zoning designation of agricultural district.  But changes to the law removed the enrollment requirement, allowing nuisance protection even if the landowner has not enrolled land in that program. 

2. The agricultural activities were established prior to the plaintiff's activities or interest on which the action is based.

This is the “coming to the nuisance” timing element.  The agricultural activities must have been in the area first, before the person complaining of a nuisance came to the area.

3. The agricultural activities were not in conflict with federal, state, and local laws and rules relating to the alleged nuisance or were conducted in accordance with generally accepted agriculture practices.

The intent of the law is to protect “good operators” who follow legal requirements or generally accepted agricultural practices for the agricultural activity that is the source of the complaint.  An operator who disregards law, regulations, and acceptable practices that apply to the agricultural activity loses the nuisance protection.

What are “agricultural activities”?

We often receive questions about the kinds of activities the law covers, or whether the protection applies if a farmer changes or expands an operation.  The Right to Farm Law answers these questions with the following:

"Agricultural activities" means common agricultural practices, including all of the following:

(1) The cultivation of crops or changing crop rotation;

(2) Raising of livestock or changing the species of livestock raised;

(3) Entering into and operating under a livestock contract;

(4) The storage and application of commercial fertilizer;

(5) The storage and application of manure;

(6) The storage and application of pesticides and other chemicals commonly used in agriculture;

(7) A change in corporate structure or ownership;

(8) An expansion, contraction, or change in operations;

(9) Any agricultural practice that is acceptable by local custom.

What if a farmer is threatened with a nuisance claim?

A few steps can help a farmer deal with a threatened nuisance claim.

• Document the activity or area that is the source of the complaint with pictures, videos, notes, weather conditions, etc.
• Review the situation to determine if there are additional management practices that could reduce any future nuisance impacts of the activity.
• If the person takes legal action, notify your property insurance provider.  Your insurer will need to be aware of potential litigation because if the issue is one that relates to your insured activities, your insurer will defend you in a lawsuit.
• Consider educating the person about your farming practices and the Right to Farm law.  Share articles like this one, or have an agricultural attorney draft a letter explaining the law. A person might not pursue a claim after understanding the activities or realizing that the Right to Farm Law would likely dismiss the claim.

Don't forget the good neighbor part

Although Ohio farmers have the Right to Farm Law as a defense against nuisance claims, it’s still good practice to be aware of how our farming activities affect neighbors.  While the law recognizes that we can’t remove all of the dust, noise, road use, and odors of farming, it does expect us to be “good operators.”  Being a good operator and instituting practices that can reduce nuisance impacts is the first line of defense against the potential of a neighbor nuisance claim.

Read the Ohio Right to Farm Law's "defense to a civil action for nuisance" at Ohio Revised Code Section 929.04.