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Wednesday, March 18th, 2009

Mercer Energy plans project while waiting for ruling on lawsuit

By Janie Southard
The sign for the future home of the local ethanol plant is down. The local telephone is disconnected and the former office is closed. But Mercer Energy's CEO is optimistic for the future.
CEO Ryan Schwieterman on Tuesday said, "If the lawsuit (filed a year ago) outcome is not in our favor, we will look at other opportunities for development ... And, of course, we always have the ability to reapply for the height variance or make significant engineering changes in our plans."
Mercer Energy, which owns the property east of Four Turkey Road and south of state Route 29, may even look into another renewable energy or agricultural-based project, according to Schwieterman.
"We'll look at all possibilities including ethanol. There have been some major advances in cellulosic ethanol (from plant material such as cotton, wood chips, switchgrass, etc.)," he said.
As to the telephone and Myers Road office closing, Schwieterman said Mercer Energy's toll-free number has always been the preferred, so when they relocated the office to a private location, they canceled the local phone number.
"We were getting a lot of foot traffic at the office from people looking for jobs, so we've moved to a more private location where we can work," he said.
Mercer Energy's plans were to build an ethanol plant with structures in excess of the current zoning height regulation of 45 feet. So, they applied for and were approved for a height variance of up to 125 feet on Jan. 17, 2008. That variance is now expired, which is why Schwieterman refers to re-applying for the variance.
The lawsuit began a year ago when a group of neighbors sued the Mercer County Board of Zoning Appeals, who approved the height variance, and Mercer Energy. The lawsuit, which claims there was a conflict of interest on the part of two board members, currently awaits a decision from the court.
The lawsuit stalled for a while as both sides wrestled with the financial records of appeals board members Jay Frysinger and Jonny Dicke. The defendants wanted that information sealed, while the plaintiffs objected saying those defendants had a financial interest in the ethanol plant and were part of the decision made on the height variance - hence a conflict of interest.
On Nov. 6, 2008, Judge Sumner Walters, filling in for the recused Judge Jeffrey Ingraham, ruled the financial information would no longer be sealed.
The primary contention of the plaintiffs was an alleged conflict of interest on the part of Frysinger, who cast the deciding vote. Further, they alleged Dicke, who conducted a January 2008 public meeting, denied the public the right to question Frysinger, who has claimed he cannot define conflict of interest.
In deposition, Dicke stated that under his definition of conflict of interest, Frysinger did have a conflict.
In the plaintiffs' filing of Jan. 22, 2009, it is stated "the deposition of Jay Frysinger clearly proves he was an investor in Mercer Energy at the time he voted for the variance. Maverick Enterprises, Inc., purchased $40,000 of ME (Mercer Energy) stock on Oct. 1, 2006 .... Frysinger owns two-thirds of the stock of Maverick Enterprises."
In that same filing, the plaintiffs stated they had no objection to sealing Dicke's financial information. Dicke, who has land near the site of the future ethanol plant, did not vote on the height variance, but did lead the meeting.
The seven plaintiffs include: Jill Myers, Larry Myers, Valerie Vermillion, James Dabbelt, Barbara Dabbelt, John Kishler and Michelle Kishler. They are represented by John Moul of St. Marys. The zoning appeals board is represented by Mercer County Prosecutor Andy Hinders. Mercer Energy is represented by attorneys Stan Evans and Richard Wallace of Sidney.
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