[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In 

re Application of Buckeye Wind, L.L.C., Slip Opinion No. 2016-Ohio-5664.] 

 

NOTICE 

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published. 

SLIP OPINION NO. 2016-OHIO-5664

IN RE APPLICATION OF BUCKEYE WIND, L.L.C., TO AMEND ITS CERTIFICATE 

ISSUED IN CASE NO. 08-666-EL-BGN; CHAMPAIGN COUNTY ET AL.,

APPELLANTS; POWER SITING BOARD ET AL., APPELLEES. 

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as In re Application of Buckeye Wind, L.L.C., Slip Opinion No. 

2016-Ohio-5664.] 

Power Siting Board—Application to amend siting certificate for wind-powered 

electric-generation facility—R.C. 4906.07(B)—Appellants failed to timely 

object to board’s decision limiting scope of hearing—Appellants forfeited 

right to challenge scope of hearing on appeal. 

(No. 2014-1210—Submitted July 12, 2016—Decided September 7, 2016.) 

APPEAL from the Power Siting Board, No. 13-360-EL-BGA. 

_______________________ 

O’DONNELL, J. 

{¶ 1} Champaign County and Goshen, Union, and Urbana Townships 

(collectively, the “county”) appeal as of right from orders of the Ohio Power Siting 
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Board (the “board”) permitting Buckeye Wind, L.L.C. (“Buckeye”), to amend its 

siting certificate for the “Buckeye Wind I” wind farm in Champaign County. 

{¶ 2} The county contends that the board unlawfully approved Buckeye’s 

requested amendment without holding a hearing on all proposed changes in the 

amendment application. R.C. 4906.07(B) provides that upon application for an 

amendment to a certificate, the board must hold a hearing on the application “if the 

proposed change in the facility would result in any material increase in any 

environmental impact of the facility or a substantial change in the location of all or 

a portion of such facility.” According to the county, all the proposed changes in 

Buckeye’s amendment application met the criteria in R.C. 4906.07(B) and 

therefore the board should have held a hearing on all the requested changes, rather 

than only a portion of them. 

{¶ 3} Because the county failed to timely object to the board’s decision 

limiting the scope of the hearing to only certain proposed changes in Buckeye’s 

amendment application, it forfeited its right to appeal that board decision. 

Accordingly, we conclude that the board’s decision to limit the scope of the hearing 

to certain proposed changes was reasonable and lawful and that the county never 

objected to the board’s limitation, and therefore we affirm the decision of the board. 

Facts and Procedural History 

{¶ 4} In March 2012, this court affirmed a board order granting a certificate 

to construct Buckeye Wind I. See In re Application of Buckeye Wind, L.L.C., 131 

Ohio St.3d 449, 2012-Ohio-878, 966 N.E.2d 869. The proposed facility as certified 

consisted of 53 fully approved wind turbines, along with access roads, temporary 

construction staging areas, a mixture of overhead and underground electrical 

collection lines, a substation, and an operations and maintenance building. 

{¶ 5} A few months after our decision in Buckeye Wind, Champaign Wind, 

L.L.C., a sister company to Buckeye, filed an application to construct another wind 

farm in Champaign County, which the developer labeled “Buckeye Wind II.” In 
January Term, 2016 

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April 2016, we affirmed the board’s order authorizing Buckeye Wind II, which, as 

certified, consisted of 52 additional turbines, more access roads, more electrical 

collection lines, more construction staging areas, another substation, and an 

operations and maintenance facility. See In re Application of Champaign Wind, 

L.L.C., ___ Ohio St.3d ___, 2016-Ohio-1513, ___ N.E.3d ___, ¶ 3, 5. 

{¶ 6} In March 2013, while Champaign Wind’s application for Buckeye 

Wind II was pending, Buckeye filed an application to amend the certificate for 

Buckeye Wind I, in part so that that Buckeye Wind I and II could share portions of 

their associated facilities. Specifically, Buckeye’s amendment application sought 

to (1) move all electrical collection lines underground, (2) relocate four previously 

approved access roads, (3) adjust the size of the construction staging areas so that 

Buckeye Wind I and II could share construction zones, (4) relocate one of the 

construction staging areas, (5) relocate the substation so that Buckeye Wind I and 

II could utilize the same substation, and (6) construct one new access road. The 

county, a group of local residents (the “neighbors”), and others intervened in the 

amendment-application proceeding. 

{¶ 7} On November 21, 2013, an administrative law judge (“ALJ”) 

determined that three of the proposed changes—burying all electrical collection 

lines underground, relocating four access roads, and resizing the construction 

staging areas—did not require a hearing under R.C. 4906.07(B). No party objected 

to the ALJ’s entry or filed an interlocutory appeal. Buckeye thereafter withdrew 

one of the proposed changes, which left only two of the requested amendments for 

consideration at the hearing. 

{¶ 8} The ALJ held the hearing on January 6, 2014. The neighbors objected 

to the scope of the hearing and requested that the proposal to bury electrical 

collection lines also be addressed. The ALJ, however, overruled the objection. The 

county did not assert any objection to the scope of the hearing or attempt to 

introduce any evidence. 
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{¶ 9} On February 18, 2014, the board issued an opinion and order 

approving Buckeye’s amendment. About a month later, the county filed an 

application for rehearing, arguing—for the first time—that the board erred by not 

holding a hearing on all the proposed changes. After the board denied the county’s 

rehearing application, the county appealed to this court, and we granted leave for 

Buckeye to intervene. 

Positions of the Parties

{¶ 10} On appeal, the county argues that the three proposed changes that 

the ALJ excluded from the hearing will result in substantial changes to the facility 

or will materially increase the environmental impact of the facility. Therefore, the 

county asserts that R.C. 4906.07(B) required the board to hold a hearing on those 

proposals and the board’s refusal to do so was unreasonable and unlawful. 

{¶ 11} The board and Buckeye maintain that R.C. 4906.07(B) did not 

require a hearing on those three proposed changes and therefore the board 

appropriately exercised its discretion in limiting the scope of the hearing. The 

board and Buckeye also assert various reasons to dismiss the county’s appeal on 

grounds other than the merits, including that the county forfeited its appellate 

arguments by not timely challenging the board’s decision limiting the scope of the 

hearing. 

{¶ 12} Accordingly, the first issue before us is whether the county properly 

preserved its arguments for appeal. If the county forfeited its right to challenge the 

scope of the hearing on appeal, we need not consider whether the board properly 

applied R.C. 4906.07(B). See In re Application of Columbus S. Power Co., 138 

Ohio St.3d 448, 2014-Ohio-462, 8 N.E.3d 863, ¶ 41 (an issue that an appellant has 

failed to properly preserve for appeal will not be considered). 

Law and Analysis 

{¶ 13} We have previously held that in public-utility and power-siting 

cases, a party forfeits an appellate argument if it deprives the agency of an 
January Term, 2016 

5

opportunity to cure the alleged error when it reasonably could have cured it. For 

example, in In re Application of Black Fork Wind Energy, L.L.C., 138 Ohio St.3d 

43, 2013-Ohio-5478, 3 N.E.3d 173, a group of local residents appealed the board’s 

approval of a wind-farm certificate, arguing that they were denied the opportunity 

to cross-examine certain staff witnesses at the board hearing. Id. at ¶ 11. The record 

revealed, however, that upon learning that the witnesses would not testify before 

the board, the appellants had failed to subpoena the witnesses or object to their 

absence. Id. at ¶ 8, 18-19. Instead, the appellants raised their objection to the 

witnesses’ absence in their application for rehearing. Id. at ¶ 20. We noted that 

“[a] party’s failure to challenge an alleged error constitutes a forfeiture of the 

objection because it deprives the board of an opportunity to cure any error when it 

reasonably could have.” Id. at ¶ 19. And we held that the “appellants should have 

objected to the absence of those staff members or at least requested an opportunity 

to compel their attendance” and that their “decision to wait until the rehearing stage 

to raise this objection [was] fatal to their claim.” Id. at ¶ 20. 

{¶ 14} We reached a similar conclusion in Parma v. Pub. Util. Comm., 86 

Ohio St.3d 144, 148, 712 N.E.2d 724 (1999) (“By failing to raise an objection until 

the filing of an application for rehearing, Parma deprived the [Public Utilities 

Commission] of an opportunity to redress any injury or prejudice that may have 

occurred”), Ohio Consumers’ Counsel v. Pub. Util. Comm., 127 Ohio St.3d 524, 

2010-Ohio-6239, 941 N.E.2d 757, ¶ 18 (an appellant’s failure to challenge an 

alleged error “at an earlier juncture constitute[d] a forfeiture of the objection 

because it deprived the commission of an opportunity to cure any error when it 

reasonably could have”), and In re Application of Columbus S. Power Co., 138 

Ohio St.3d 448, 2014-Ohio-462, 8 N.E.3d 863, at ¶ 41 (“By waiting six months to 

challenge the order, [the appellant] deprived the commission of an opportunity to 

cure any error when it reasonably could have. The issue is therefore waived and 

will not be considered”). 
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{¶ 15} Here, the county had numerous opportunities to challenge the 

board’s decision limiting the scope of the hearing, yet it waited until its application 

for rehearing to first raise an objection. Specifically, on November 21, 2013, the 

ALJ determined that three of Buckeye’s proposed changes did not require a hearing. 

The county did not request reconsideration, file an interlocutory appeal, or 

otherwise object to the ALJ’s prehearing entry. 

{¶ 16} At the commencement of the January 6, 2014 hearing, the neighbors 

requested that the hearing include Buckeye’s proposal to bury all electrical 

collection lines. The ALJ specifically inquired whether the county had any 

comment on the neighbors’ objection, and the county’s counsel responded, 

“Nothing, Your Honor.” Thus, the neighbors were the only party to raise an 

objection to the scope of the hearing, and they limited their objection to only one 

of the proposed changes. No party objected at the hearing to the exclusion of 

Buckeye’s proposals to relocate four access roads or resize the construction staging 

areas. 

{¶ 17} During the hearing, Buckeye proffered a witness who testified about 

the benefits of burying electrical lines and resizing the construction staging areas—

despite the fact that the ALJ had determined that those proposed changes did not 

require a hearing. Yet the county did not object to the witness’s testimony and 

declined the ALJ’s invitation to cross-examine him. And the county failed to 

proffer any of its own evidence, call any of its own witnesses, or present any closing 

argument. Indeed, at no time before or during the hearing did the county register 

its disagreement with the ALJ’s prehearing decision, ask to expand the scope of the 

hearing, or seek to introduce evidence regarding the proposed changes that the ALJ 

had ruled were not subject to hearing. 

{¶ 18} On appeal, the county maintains that its rehearing application was 

the appropriate time to raise its objection due to the nature and availability of the 

board’s rehearing process. Although it is true that the board’s statutes require a 
January Term, 2016 

7

party to identify alleged errors with specificity in a rehearing application in order 

to preserve those issues for appellate review, see R.C. 4903.10(B) and 4906.12, the 

availability of that process does not mean that a party may sit idly and withhold all 

objections before and during a board hearing and then belatedly raise them in a 

rehearing application. Notwithstanding the rehearing process, parties have the 

obligation to alert the board of an alleged error at a time when it could reasonably 

have been avoided or corrected. The availability of a rehearing process did not save 

the appellants in Black Fork Wind from application of the forfeiture doctrine. See 

138 Ohio St.3d 43, 2013-Ohio-5478, 3 N.E.3d 173, at ¶ 20 (holding that the 

appellants’ decision “to wait until the rehearing stage to raise this objection [was] 

fatal to their claim”). 

{¶ 19} In accord, we hold that the county’s failure to take any action to 

challenge the scope of the hearing until after the hearing had already occurred and 

after the board had issued its order deprived the board of an opportunity to cure any 

alleged error at a time when it reasonably could have done so. Therefore, the county 

forfeited its right to challenge the scope of the hearing on appeal, and the board 

acted reasonably and lawfully in limiting the scope of the hearing, and we therefore 

affirm the decision of the board. 

Order affirmed. 

O’CONNOR, C.J., and PFEIFER, LANZINGER, KENNEDY, FRENCH, and

O’NEILL, JJ., concur. 

_________________ 

Kevin S. Talebi, Champaign County Prosecuting Attorney, and Jane A. 

Napier, Assistant Prosecuting Attorney, for appellants, Champaign County and 

Goshen, Union, and Urbana Townships. 

Michael DeWine, Attorney General, William L. Wright, Section Chief, and 

Werner L. Margard III and Josh H. Jones, Assistant Attorneys General, for appellee 

Ohio Power Siting Board. 
SUPREME COURT OF OHIO

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Vorys, Sater, Seymour & Pease, L.L.P., Michael J. Settineri, and William 

A. Sieck, for intervening appellee, Buckeye Wind, L.L.C. 

_________________