Parks District terminates easement agreements with Apex


By Tammy Watts

GREENVILLE — “As far as we’re concerned, these easements are null and void,” Darke County Parks Director Roger Van Frank announced at the regular meeting of the Darke County Park District Board of Commissioners on Feb. 10. The three easements granted by the Park District to Apex Clean Energy had been a source of contention to citizens opposed to the Painter Creek Solar project.

A letter from Parks District Attorney Travis Fliehman sent to Apex Clean Energy in January, outlined the historical transfer of titles dating as far back as 1848: from landowners to railway companies, to Dayton Power and Light (DP&L), and ultimately, to Darke County Parks. Twelve years ago, the Park District was awarded an $85,000 grant from the Clean Ohio fund, which was used to procure rights-of-way along miles of railroad corridors, with the intention of creating bike trails.

According to the title transfer from the original owner, “fee simple interest,” or absolute ownership, was never conveyed to the railroad; merely a right-of-way to build and maintain a railroad. Consequently, absolute ownership was never acquired by Darke County Parks. Citing a “mutual mistake,” Apex was requested to sign a Termination of Easement by General Release. “You can’t give away what you don’t own; that’s the root of this issue,” Fliehman explained.

Furthermore, the Park District returned three $1,000 payments for the three easements granted to Apex. “You heard us, and I think you deserve a round of applause,” said community member Jerry Miller, after which the room erupted into clapping.

“Thank you, but you also need to thank your County Engineer: Jim Surber was very instrumental in this, and did all the research. He and Travis (Fliehman) worked very well, collaboratively,” Van Frank stated. He also cautioned that Apex did not sign the Termination, nor have they cashed the checks. However, an Affidavit of Title filed in the Darke County Recorder’s Office states that “based on the chain of title…the Easements are null and void.”

“At our end, we basically said you don’t have the right to use it,” Van Frank summarized.

Several concerned audience members asked what further steps Apex may take, or if the company had any recourse to try and circumnavigate the legal setback. “We’ve waited for Apex’s cooperation, and all we’ve heard back so far is ‘we’ll look into it,’” answered Fliehman. “I don’t want to speculate on what Apex may or may not do going forward,” he added.

A few residents conjectured that Apex could seek to obtain easement agreements from AES (formerly DP&L). “It’s a possibility,” Fliehman said. “They would have to go back and see what rights were actually conveyed to AES, and who owns the remainder.”

Fran Chrisman, of the Darke County Citizen Preservation Association (DCCPA), pointed out that each of the three parcels of land concerned contained multiple farms in the 1800s. One of the tracts had as many as 20 individual farms, according to a map dating back to that time. Potentially, there are hundreds of heirs who would be involved, should action be taken to find descendants of the original owners.

Tyler Fehrman, Apex’s Field Manager for Ohio, did not think the agreement could be terminated. “That this (the affidavit) was filed without our knowledge was a little bit of a surprise,” he stated. “It’s just added research to our pile, but we’re going to keep digging.”

Also on Feb. 10, the Darke County Board of Commissioners held its regular meeting, during which Larry Holmes briefly discussed the commissioners’ second meeting with the Ohio Power Siting Board (OPSB) on the previous day.

“It was a nice, general meeting,” he stated.

According to Holmes, the OPSB confirmed that the pre-application process for Painter Creek Solar was completed on Dec. 8, 2021. However, a meeting between County Commissioners and Township Trustees regarding the project will not take place anytime soon, given the delay in the application process recently announced by Apex.

“We just have to be as knowledgeable as we can, to gather facts, and move forward,” Holmes concluded.

Daily Advocate Reporter Tammy Watts can be reached at [email protected].

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