Tuesday, January 7, 2025
In re Application of Harvey Solar I LLC, Case No. 2023-0793
Ohio Power Siting Board
State of Ohio v. Jadyn Logan, Case Nos. 2023-1318 and 2023-1417
Eighth District Court of Appeals (Cuyahoga County)
Miguel Hunt v. Robert E. Alderman Jr., Case No. 2023-1463
Ninth District Court of Appeals (Summit County)
Faith Ranch and Farms Fund Inc. v. PNC Bank, National Association et al., Case No. 2023-1475
Seventh District Court of Appeals (Harrison County)
Did Power Siting Board Legally Approve Proposed Licking County Solar Farm?
In re Application of Harvey Solar I LLC, Case No. 2023-0793
Ohio Power Siting Board
ISSUE: Did the Ohio Power Siting Board meet the legal requirements to approve the construction and operation of a proposed solar generation facility in Licking County?
BACKGROUND:
Harvey Solar 1 applied to the Ohio Power Siting Board in August 2021 to construct a solar farm with a total generating capacity of 350 megawatts. The project would be located on 2,600 acres of private land in Hartford and Bennington townships, near the village of Hartford in Licking County. The project consists of rows of solar panels along with electrical collection lines, a substation, and other generation-related equipment. The facility would be surrounded by fencing designed to be consistent with the rural location. Power from the farm will be supplied to a transmission line owned by American Electric Power.
A group named Save Hartford Twp. formed to oppose the project. The organization includes many residents living or owning property near the proposed site. Harvey Solar began negotiations with several parties, including the siting board staff, the Ohio Farm Bureau Federation, township trustees, and county officials to revise their plan. A joint proposal was submitted to the siting board. In October 2022, the board approved a certificate for Harvey Solar that contained 39 conditions it needs to meet to construct and operate the facility.
Save Hartford Twp. appealed the board’s order to the Ohio Supreme Court, which is required to consider the case.
Board Failed To Follow Rules When Approving Project, Opponents Assert
The siting board has developed rules for evaluating a proposed project’s impact on nearby communities and the environment. The board failed to follow its own rules when assessing Harvey Solar’s application, Save Hartford argues. Among the group’s objections are the concerns of flooding and soil erosion, failure to protect wildlife, and destruction of jobs from displacing agricultural lands.
Save Hartford notes part of the project is in a floodplain and that flooding has been a concern for area residents. Harvey Solar committed to following Licking County’s guidelines for construction in a floodplain, but the siting board has provided no specific safeguards to protect against the project’s increasing flooding risks, the opponents assert. Harvey Solar was directed by the board to coordinate with the Licking County floodplain program, which the opponents contend doesn’t provide the specific detail necessary to earn board approval.
The group also argues that Harvey Solar didn’t provide the required assessment of plants and wildlife in the area and didn’t conduct the required field studies to understand what wildlife species might be at risk. The group notes there are numerous bird species in the area that could be threatened by the solar farm.
The project requires Harvey Solar to estimate the economic impact of the facility, and Save Hartford contends that the company provided a one-sided study. The study included its positive economic impacts without evaluating the economic losses that local businesses and individuals might suffer, the opponents assert. The project will remove 2,610 acres from food production, the opponents note, and Harvey Solar didn’t calculate how much value in agricultural production will be lost from not farming the land. Those who service farmland, including suppliers of crop seeds and fertilizers, will no longer benefit from the converted property and will suffer economic losses, Save Hartford adds. The board shouldn’t have approved the project without a more thorough examination of its impact on the economy, Save Hartford asserts.
Solar Farm Provided Sufficient Information, Board Maintains
While Save Hartford believes Harvey Solar should have provided more information, the board argues the company provided sufficient information to permit the board to rigorously evaluate the project. The board maintains it received reliable evidence that the project would have a minimum adverse impact on the surrounding communities and provide significant benefits to the state. The board notes the 39 conditions placed on the company are subject to review and approval and adequately mitigate any negative impacts of the project.
The board notes it received extensive information about the area’s hydrogeology and potential flooding. It notes that only 1.6% of the project area is in the 100-year floodplain, and the prospects for severe flooding are low. Harvey Solar presented a stormwater assessment, which indicates its proposal may improve drainage for the surrounding area. By working with the county officials, Harvey Solar’s facility will minimally impact flooding, the board concludes.
Harvey Solar provided a number of records regarding plants and wildlife, which didn’t identify any threats. The board’s order requires Harvey Solar to work in coordination with the Ohio Department of Natural Resources and the U.S. Fish and Wildlife Service should it encounter any threatened species during construction activities.
The board also found Harvey Solar provided estimates that demonstrated its potential positive economic impact. The opponents failed to offer any evidence quantifying the alleged losses that might occur, the board asserts. The board maintains the company’s estimates comply with the board’s rules, and the board found the overall impacts will positively affect the community.
Board Approval Warranted, Company Argues
The Court allowed Harvey Solar to intervene and participate in the case. Harvey Solar noted it will invest $91 million in the construction of the facility and create 1,371 construction jobs. The project will produce clean, renewable energy, and it will pay the village of Hartford about $3.1 million annually in taxes during the estimated 40-year life of the facility. Landowners participating in the project will receive annual lease payments, and that money will likely be used to purchase goods and services in the local community, the company notes.
Harvey Solar disputes the opponent’s allegations and provides evidence demonstrating its flood management plan will improve stormwater drainage in the area, not exacerbate it. The company notes it submitted more than 450 pages of reports related to plants and animals in the area and documented the project will have a minimal impact on the environment.
The company argues the opponents make unsupported claims and don’t recognize that experts on the board’s staff have thoroughly analyzed all the concerns Save Hartford raised. The board properly relied on the evidence presented and lawfully issued the certificate, the company concludes.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Save Hartford Twp. LLC et al.: Jack Van Kley, jvankley@vankleylaw.com
Representing the Ohio Power Siting Board from the Ohio Attorney General’s Office: Thomas Lindgren, thomas.lindgren@ohioattorneygeneral.gov
Representing Harvey Solar I LLC: Christine Pirik, cpirik@dickinsonwright.com
Does Sentence for Offense With Firearm Specification Require Prison Time?
State of Ohio v. Jadyn Logan, Case Nos. 2023-1318 and 2023-1417
Eighth District Court of Appeals (Cuyahoga County)
ISSUE: If a defendant is found guilty of a firearm specification connected to a felony, does state law prohibit a sentence of community control for the felony and instead require a prison term?
BACKGROUND:
Jadyn Logan was convicted in 2018 for aggravated robbery and drug trafficking in Cuyahoga County. As part of her sentence, she was prohibited from having or using a firearm. This prohibition is referred to as a “disability.” In 2021, Logan was indicted on various firearms charges.
Logan pled guilty in April 2022 to a felony charge for illegally having a weapon (called, “having a weapon while under disability”) and that charge included a one-year firearm specification. She also pled guilty to a charge requiring forfeiture of the weapon. The Cuyahoga County Common Pleas Court sentenced Logan to the mandatory prison term of one year for the firearm specification and a non-prison sentence – two years of community control – for illegally having a weapon.
The Cuyahoga County Prosecutor’s Office appealed to the Eighth District Court of Appeals. The prosecutor argued the trial court was required to impose a prison sentence, not community control, on the charge for illegally having a weapon. The Eighth District ruled that state law didn’t mandate a prison term for the charge.
The prosecutor appealed to the Supreme Court of Ohio, which accepted the case. The prosecutor also notified the Supreme Court that the Eighth District certified that there is a conflict among Ohio appeals courts on the issue. The Court agreed to review the conflict.
Statute Explains Sentencing Requirements
The prosecutor and Logan both discuss R.C. 2929.13(F)(8). At the time of Logan’s offense and sentencing, the law stated:
“(F) Notwithstanding divisions (A) to (E) of this section, the court shall impose a prison term or terms under sections 2929.02 to 2929.06, section 2929.14, section 2929.142, or section 2971.03 of the Revised Code … for any of the following offenses:
…
(8) Any offense, other than a violation of section 2923.12 of the Revised Code, that is a felony, if the offender had a firearm on or about the offender’s person or under the offender’s control while committing the felony, with respect to a portion of the sentence imposed pursuant to division (B)(1)(a) of section 2929.14 of the Revised Code for having the firearm;”
State Argues Offense Connected to Firearm Specification Requires Prison Sentence
The prosecutor contends the statute doesn’t allow a court to impose the non-prison sentence of community control for an offense when there is a corresponding firearm specification, which carries the penalty of prison.
The prosecutor maintains that the law applies to criminal offenses, and a specification isn’t an offense. In State v. Ford (2011), the Supreme Court of Ohio noted that a firearm specification is contingent on a conviction for an underlying felony. The opinion explained that a firearm specification imposes an additional, enhanced penalty for a crime if someone uses a firearm while committing the crime. The prosecutor asserts that the offense and specification work together as one – the specification isn’t a separate offense because it completely depends on the existence of an underlying charge.
The prosecutor argues the statute requires courts to impose prison time for both the firearm specification and the felony underlying the specification. The court can’t sentence the offender to prison for the specification and impose a non-prison sanction, such as community control, for the underlying crime, the prosecutor asserts. Community control isn’t a possible sentence for a felony offense when the offender is found guilty of the firearm specification, the prosecutor contends.
Offender Counters That Prison Time Not Mandated for Underlying Offense
Logan’s brief focuses on the part of the law that says, “with respect to a portion of the sentence imposed pursuant to division (B)(1)(a) of section 2929.14 of the Revised Code for having the firearm.” Logan agrees with the Ford decision that a firearm specification is a sentencing enhancement that attaches to an underlying offense. Logan likens the connection to a caboose that attaches to a train. A “portion of” the single offense is the underlying offense, and another “portion of” the single offense is the firearm specification.
Logan’s brief compares the statute to a requirement reading, “The following items must be painted red: (1) Trains, with respect to the portion of the locomotive that is the caboose.”
“No one would question that the caboose must be red but the engine and boxcars need not,” the brief states. “Nor can it be reasonably questioned that the firearm specification must carry mandatory prison time but the predicate offense need not.”
She contends that the use of “with respect to” doesn’t mean that the firearm specification is a condition that requires a court to impose prison time for the underlying offense. Only the firearm specification carries mandatory prison time, she concludes.
State Public Defender Submits Brief
The Ohio Public Defender’s Office filed an amicus curiae brief supporting Logan’s positions.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket (2023-1318 and 2023-1417).
Contacts
Representing the State of Ohio from the Cuyahoga County Prosecutor’s Office: Tasha Forchione, tforchione@prosecutor.cuyahogacounty.us
Representing Jadyn Logan from the Cuyahoga County Public Defender’s Office: John Martin, jmartin@cuyahogacounty.us
Was Lawsuit Notice Properly Served When Mailed to Defendant’s Former Address?
Miguel Hunt v. Robert E. Alderman Jr., Case No. 2023-1463
Ninth District Court of Appeals (Summit County)
ISSUE: Is a defendant in a civil lawsuit denied due process when the lawsuit is served to the wrong address but hand-delivered to the defendant in time to file a response?
BACKGROUND:
Miguel Hunt and Robert Alderman Jr. were both Summit County Sheriff Department SWAT team members in 2012. During a SWAT team mock taser practice, Alderman misunderstood his role in the training exercise and hit Hunt in the head with an unloaded submachine gun. Hunt suffered a concussion.
In 2012, Hunt and his wife filed a civil lawsuit against Alderman for assault and battery. Alderman claimed he had immunity from the lawsuit. When the case originated in 2012, Alderman lived at a property in Cuyahoga Falls owned by his father, Robert Alderman Sr., and the younger Alderman was served with the lawsuit at the Cuyahoga Falls residence. During a deposition Hunt’s legal team conducted in 2014, Alderman informed them he had moved to a residence in Canal Fulton.
The case was twice appealed to the Ninth District Court of Appeals on the immunity issue before the appeals court ruled that Alderman could be tried on the claims. The case returned to the trial court in 2018, and Hunt voluntarily dismissed the lawsuit with the intent of refiling it.
Deputy Sends Lawsuit to Old Address
Hunt’s lawsuit was refiled in 2019. Hunt attempted to serve the lawsuit on Alderman by sending it by certified mail to the Cuyahoga Falls address, where he used to live. A woman at the address signed the certified mail and accepted the lawsuit. She then gave it to her landlord, Robert Alderman Sr. The elder Alderman hand-delivered the lawsuit to his son in Canal Fulton a few days later.
Alderman Jr. answered Hunt’s lawsuit and sought to dismiss the case, claiming the service of the lawsuit was insufficient. He argued that Hunt did not attempt to serve him at his actual residence or use any of the methods of service permitted by the Ohio Rules of Civil Procedure.
The trial court ruled that Hunt’s delivery complied with the civil rules, but violated Alderman’s constitutional rights to due process. The trial court dismissed the case. Hunt appealed to the Ninth District. In a 2-1 decision, the appeals court affirmed the trial court’s ruling.
Hunt appealed to the Ohio Supreme Court, which agreed to hear the case.
Due Process Rights Not Violated When Defendant Received Lawsuit, Plaintiff Argues
Hunt disagrees with his opponent’s contention that the lawsuit should be dismissed because the complaint was mailed to an address where Alderman hadn’t lived for seven years, and he didn’t sign the receipt for the certified mail. The trial court found this violated Alderman’s right to due process given that the method in which the lawsuit reached him was “not reasonably calculated to apprise him of the pendency of the action based upon the totality of the circumstances.”
Hunt argues that when a court rules the plaintiff has complied with the service rules and the lawsuit papers actually reach the person being served, no due process rights have been violated. Hunt acknowledges his attorneys made the inadvertent mistake of sending the information to the wrong address. However, Alderman’s father hand-delivered the lawsuit to Alderman shortly afterward. Due process challenges aren’t appropriate for a defendant who has received the notice and had time to answer it and defend the case, Hunt asserts.
Hunt argues the issue of due process arises when a defendant hasn’t been served with a copy of the lawsuit in a timely fashion. He also notes the civil rules don’t require that the person being sued has to be the one who signs the certified mail receipt. Hunt maintains the goal of sufficient service is to ensure parties can defend against a lawsuit. Alderman received the lawsuit and should have to defend his actions based on the merits of his case, not a technicality, Hunt concludes.
Happenstance Receipt of Lawsuit Violated Due Process, Defendant Maintains
Alderman argues that Hunt wrongly interprets due process rights. Before a plaintiff determines how the defendant will be served with the lawsuit, the plaintiff must ensure steps are taken to reasonably calculate that the defendant will be apprised of the action. Sending the lawsuit to the wrong address in 2019, after Hunt was made aware of the address change in 2014, wasn’t reasonably calculated to notify Alderman of the lawsuit, Alderman asserts.
Alderman maintains the trial court correctly assessed that Hunt used a proper method of service, sending the lawsuit by certified mail. But that is a separate question from whether proper service was achieved, and the trial court found it wasn’t, Alderman notes. Under Hunt’s argument, he could violate the service rules as long as Alderman received the lawsuit, and that would be sufficient for the trial court to have jurisdiction to hear the case, Alderman explains. But that would be a radical departure from Ohio law, which only gives a court jurisdiction to hear a case when the case has been properly served, he concludes. Hunt failed to meet both standards of following the civil rules for service and ensuring service was reasonably calculated to reach Alderman, he concludes.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Miguel Hunt: David Bertsch, dbertsch@stark-knoll.com
Representing Robert E. Alderman Jr.: Aaron Campbell from the Summit County Prosecutor’s Office, acampbell@prosecutor.summitoh.net
Does Property Deed Reference to ‘Minerals’ Encompass Oil and Gas?
Faith Ranch and Farms Fund Inc. v. PNC Bank, National Association et al., Case No. 2023-1475
Seventh District Court of Appeals (Harrison County)
ISSUE: Do the ordinary meanings of “mine,” “mining,” and “vein” include oil and gas exploration in a deed that addresses mineral rights?
BACKGROUND:
On Nov. 9, 1953, Clarence and Agnes Fay transferred ownership of 11 parcels of land in Harrison County to Judson Rosebush. The deed contained the following statement reserving the Fays’ rights to:
“[A]ll the coal below the horizon of the No. 8 coal, if any vein exists thereunder, and other minerals, with the right to mine and remove such coal or other minerals of any vein, using any convenient underground mining methods, and to transport coal and minerals from other premises through and under the surface of said lands; and particularly reserving the seam of coal, if any, now being mined at Nelm’s mine of the Y.&O. Coal Company, near Unionvale, Ohio, with all mining rights necessary or convenient for the mining and removal thereof, and the right to transport other coal of the same vein under said lands.”
Clarence Fay died in 1983. His property transferred to the C.C. Fay Trust. The named trustee was National City Bank in Cleveland. The list of estate assets didn’t mention the mineral rights reserved in the deed. After Fay’s wife died in 1988, the property was left to their two children. Their son died in 2003, and the property went to the daughter. She died in 2014. Both siblings died without a surviving spouse or children. In her will, the daughter, Virginia Fay Mayer, directed that the property be transferred to the Virginia Fay Mayer Trust, which was created for heirs that she designated.
Marilyn Stolz is the administrator of Fay Mayer’s estate and trustee for the trust. In 2020, the company EAP Ohio informed Stolz about the minerals owned by the Fays on the Harrison County property. Because those assets hadn’t been transferred through the years, Stolz began taking steps to preserve the mineral rights for the heirs.
Landowner Contests Heirs’ Attempts To Claim Oil and Gas Rights
Faith Ranch and Farms Fund purchased the land in the 1970s and is the current owner. The nonprofit operates a nondenominational Christian retreat on the property. After Stolz took action to secure the mineral rights, Faith Ranch filed a complaint in Harrison County Common Pleas Court. The nonprofit argued the deed didn’t reserve rights to oil and gas on the property for the Fays. In January 2023, the trial court found that the language in the reservation included coal and other minerals that are obtained through mining – which don’t include oil and gas.
Two sets of Fay heirs appealed separately to the Seventh District Court of Appeals. The appeals court consolidated the appeals and determined the reservation’s language was ambiguous because of the words “mine,” “mining,” and “vein.” The court also noted the lack of the word “drilling.” Because the intent of the Fays and Rosebush was unclear, the appeals court looked at what rights the Fays reserved in other deeds for unrelated property. Several deeds explicitly listed “oil and gas” in their reservations of rights. The Seventh District ruled that, unlike several other deeds, the deed for the Faith Ranch property didn’t directly mention oil and gas so those weren’t included as “other minerals.”
The Fay heirs appealed to the Ohio Supreme Court, which accepted the case.
Oil and Gas Rights Were Reserved by Fays in Deed, Heirs Argue
The heirs’ brief explains that coal, oil, and gas don’t fall under the geological definitions of “minerals.” However, in ordinary usage, oil and gas are considered minerals, the heirs maintain. In Detlor v. Holland (1898), the Supreme Court looked at two factors in these types of cases when determining whether the word “minerals” encompasses oil and gas: the deed’s language, and the state of oil and gas development at the time the rights were reserved in a deed.
Since that decision, the heirs argue, Ohio case law “strongly presumes” that oil and gas are minerals. The Seventh District has explained that once oil and gas production became commonplace in Ohio, courts started their legal analyses of disputes with the presumption that “minerals” include oil and gas rights – if the language in the reservation can be reasonably viewed as including oil and gas and no other language in the reservation specifically excludes oil and gas.
Because the 1953 deed reserved the Fays’ rights to “coal … and other minerals,” the deed clearly considered coal to be a mineral, the heirs maintain. They note that the deed is then using “minerals” in its ordinary sense, not as a geological term. Given that, “minerals” in its ordinary use also includes oil and gas, the heirs contend. They also argue that “mine” and “mining,” which mean “to get something from the earth” or “to extract from a source,” are often used to describe oil and gas exploration. As an example, they point to language in the Ohio Constitution, which refers to mining various minerals: “Laws may be passed … to provide for the regulation of methods of mining, weighing, measuring and marketing coal, oil, gas and all other minerals.” The heirs further assert that “vein” in ordinary usage includes oil and gas because a vein can contain anything that might be mineral material or matter.
The reservation of rights in the deed used broad, general language that applies equally to recovering not only coal but also oil and gas, the heirs conclude.
Rights to Coal, But Not Oil or Gas, Retained by Heirs, Landowner Maintains
Faith Ranch counters that the deed language demonstrates that the Fays only reserved their right to mine veins of minerals using underground mining methods. Based on the deed reservation, the Fays didn’t, however, reserve the right to drill for nonminerals, such as oil and gas, the nonprofit argues. The group also maintains that oil and gas occur in formations or reservoirs, not veins.
The nonprofit notes that oil and gas aren’t “minerals” in top dictionary definitions because the term is often defined as ores or inorganic substances. These definitions are the ordinary uses of the word “mineral,” the group maintains. Because oil and gas are organic substances and aren’t ores, they aren’t included in the ordinary meaning of “mineral,” the nonprofit states.
Faith Ranch adds that the property’s oil and gas rights were leased over the years, but not by the Fay heirs. In 1969, Rosebush and his wife leased the oil and gas rights to E.K. Petroleum. Faith Ranch leased the rights to Columbia Gas Transmission Corporation in 1979, to Oxford Oil Company in 2005, and to Gulfport Energy Corporation in 2011. Faith Ranch’s brief notes that the hydraulic fracturing (fracking) “boom” subsequently reached Ohio, and the nonprofit then leased the rights to oil and gas under the property to EAP Ohio. The Fays and their heirs never leased the oil and gas rights to anyone, the nonprofit notes.
Faith Ranch contends that Detlor supports the view that oil and gas rights weren’t reserved by the Fays. Based on Detlor, oil and gas weren’t considered minerals in the 1953 deed because of the references to mining, the absence of drilling language, and the lack of evidence that oil and gas production was commonplace in the area at the time. Faith Ranch rejects the documentation of 10 wells drilled around that time in the area. The nonprofit maintains that most of those wells were never completed, were abandoned, or never produced oil and gas.
The nonprofit notes that when Clarence Fay sold other parcels, he specifically listed “oil and gas” in the rights he reserved in deeds. Because oil and gas rights weren’t listed in the 1953 sale, he didn’t intend to reserve oil and gas rights on this property, Faith Ranch argues.– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Marilyn Stolz, individually and as successor trustee of the Virginia Fay Mayer Trust et al.: Charles Kidder, ckidder@kidderlegal.com
Representing Laurie E. Evanko and James M. Roller, individually and as successor trustees of the Frederick Roller Revocable Trust: Edward Janis, mjanis5247@sbcglobal.net
Representing Faith Ranch and Farms Fund Inc.: Emmett Robinson, erobinson@robinsonlegal.org