Envirosafe Services of Ohio, Inc. Fka Fondessy Enterprises, Inc. v. the City of Oregon, Mary A. Taylor, Clerk Auditor

• Decision Date: 05 June 1992
• Docket Number: 92-LW-1919,L-90-389
• Parties: Envirosafe Services of Ohio, Inc. fka Fondessy Enterprises, Inc., Appellant v. The City of Oregon, Mary A. Taylor, Clerk Auditor, Appellees Court of Appeals
• Court: Ohio Court of Appeals

Envirosafe Services of Ohio, Inc. fka Fondessy Enterprises, Inc., Appellant v. The City of Oregon, Mary A. Taylor, Clerk Auditor Appellees

No. L-90-389.

92-LW-1919 (6th)

Court of Appeals of Ohio, Sixth District Lucas

June 5, 1992

Trial Court No. CV 84-0513.

Richard M. Markus and Margaret M. Koesel, for appellant.

Paul Goldberg and Mark E. Lupe, for appellee city of Oregon.

This is an appeal from a summary judgment of the Lucas County Court of Common Pleas granted in favor of appellee, the city of Oregon. The trial court held that the city could properly require a permit fee in connection with a hazardous waste landfill facility operated by appellant, Fondessy Enterprises, Inc. ("Fondessy") ^[1] For the reasons discussed below, we affirm the decision of the trial court.

The facts of this case are as follows. Fondessy is the owner and operator of a hazardous waste landfill facility located in Oregon, Ohio. Fondessy has operated the landfill since 1981 under a permit issued by the state of Ohio pursuant to R.C Chapter 3734.

On January 23, 1984, the city of Oregon adopted Ordinance No 12-1984. Ordinance No. 12-1984 requires a hazardous waste landfill operator to keep daily records of the amount, type and volume of hazardous waste placed in the landfill and to remit such records, along with a fee of $1 per ton of hazardous waste, to the city's clerk auditor on a monthly basis. Ordinance No. 12-1984 also provides for the establishment of area services and programs in order to monitor hazardous waste land facilities. Finally, Ordinance No. 12-1984 provides for a credit for fees collected under the ordinance against any fees required under state law.

Fondessy filed a declaratory judgment action seeking to have Ordinance No. 12-1984 declared invalid. Fondessy alleged that the state had preempted the regulation of hazardous waste facilities with the passage of R.C. Chapter 3734 and, therefore, local regulation was precluded. Alternatively, Fondessy argued that Ordinance No. 12-1984 violated the Due Process and Equal Protections Clauses of the constitutions of the United States and the state of Ohio.

The trial court bifurcated the proceedings and initially addressed only the preemption issue, specifically reserving a ruling on the constitutional arguments until a later time. The trial court, in ruling on the preemption issue, held that R.C. 3734.05(E)(3)^[2] precluded the operation of Ordinance No. 12-1984. The trial court's decision was ultimately reversed by the Supreme Court of Ohio in Fondessy Enterprises, Inc. v. The City of Oregon (1986), 23 Ohio St. 3d 213. The Supreme Court held that ordinance No. 12-1984 was not in conflict with R.C. Chapter 3734 on the ground that "[t]he maintenance of daily records and their submission to the city along with a fee is not contained in or required by the state statute, and certainly is not proscribed therein." Id. at 217. The case was remanded to the trial court for consideration of the remaining constitutional issues.

Upon remand, the trial court awarded summary judgment in favor of the city on the grounds that (1) the fee imposed by Ordinance No. 12-1984 did not conflict with and is not preempted by state law, (2) the fee was not a tax and, therefore, is not preempted by state law and (3) Ordinance No. 12-1984 did not violate the constitutional requirements of due process and equal protection.

It is from such judgment that Fondessy raises the following five assignments of error:

"I. The Trial Court Erroneously Granted The City's Summary Judgment Motion, Since R.C. 3734.05(E) Prohibits the City From Charging A Fee That Imposes An Unlawful Condition on Plaintiff's Operations and Impairs or Limits the Authority Approved in Plaintiff's Permit.

"II. The Trial Court Erroneously Granted Oregon's Summary Judgment Motion, Since the City's 'Permit Fee' Denies Plaintiff Due Process By Imposing A Fee Which Has No Rational Relationship To The Activity It Seeks To Support.

"III. The Trial Court Erroneously Denied Plaintiff's Summary Judgment Motion, Since R.C. 3734.18(A) Imposes A State Tax Which Preempts Oregon From Charging Another $200,000 Annually To "Monitor" Plaintiff's Hazardous Waste Landfill.

"IV. The Trial Court Erroneously Denied Plaintiff's Summary Judgment Motion, Since R.C. 3734.18(D) Imposes A Municipal Tax Which Preempts Oregon From Charging Another $200,000 Annually To 'Monitor' Plaintiff's Hazardous Waste Landfill.

"V. The Trial Court Erroneously Granted The City's Summary Judgment Motion, Since R.C. 3734.18(A) And R.C. 3734.18(D) Collectively Impose Taxes Which Preempt Oregon From Charging Another $200,000 Annually To 'Monitor' Plaintiff's Hazardous Waste Landfill."

As its first assignment of error, Fondessy argues that the fee required under Ordinance No. 12-1984 is in conflict with state law and therefore is preempted. Fondessy argues that the Supreme Court, in its previous decision, held only that the reporting requirement, rather than the fee imposed, under Ordinance No. 12-1984 was not in conflict with state law.

In Fondessy, the Supreme Court set forth the test adopted in Struthers v. Sokol (1923), 108 Ohio St. 263, to determine whether a municipal ordinance is in conflict with the general state statute as follows:

"Whether the ordinance permits or licenses that which the statute forbids and prohibits, and vice versa." Fondessy, supra, at paragraph two of the syllabus, following paragraph two of the syllabus. in Struthers, supra.

In applying the Struthers test to the facts at hand, the Supreme Court in Fondessy specifically addressed both the reporting requirements and the imposition of the fee required under Ordinance No. 12-1984 as follows:

"Does Ordinance No. 12-1984 permit anything forbidden by R.C. Chapter 3734? We think not. The maintenance of daily records and their submission to the city along with a fee is not contained in or required by the state statute, and certainly is not proscribed therein.

"The instant ordinance does not conflict with R.C. Chapter 3734 on either score of Struthers and must be held valid. We find the imposition of a fee to cover the city's cost of monitoring and digesting the instant information to be valid and reasonable exercise of its police powers.

"The City of Oregon, as well as the State of Ohio, has the authority to enforce monitoring of hazardous waste facilities located inside the corporate limits of the city. Ordinance 12-1984 does not constitute an additional condition for the construction or operation of the hazardous waste facility, nor does the ordinance alter, impair, or limit the authority of the landfill operators to operate said facility under R.C. Chapter 3734." Fondessy, supra, at 217. (Emphasis added.)

We find that the issue of whether the fee imposed under Ordinance No. 12-1984 conflicts with general state law has previously been decided by the Supreme Court in the Fondessy decision. The doctrine of the law of the case requires that "[a]bsent extraordinary circumstances *** an inferior court has no discretion to disregard the mandate of a superior court in a prior appeal in the same case." Nolan v. Nolan (1984), 11 Ohio St. 3d 1, the syllabus. In the present case, there are no extraordinary circumstances that would lead us to disregard the Supreme Court's prior ruling. Accordingly, the first assignment of error is found not well-taken.

As its second assignment of error, Fondessy argues that the fee required pursuant to Ordinance No. 12-1984 is violative of due process under the United States and state of Ohio's constitutions.

The right of due process guaranteed under Section 16, Article I of the Ohio Constitution is equivalent to that under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Sedar v. Knowlton Construction Co. (1990), 49 Ohio St. 3d 193, 199. In Mominee v. Scherbarth (1986), 28 Ohio St. 3d 270, 274, the Supreme Court of Ohio addressed the validity of legislation and the guarantees of due process as follows:

"In testing the constitutionality of a legislative enactment, we begin with the common ground that all such enactments enjoy a presumption of constitutional validity. Schwan, supra, at 301; Benevolent Assn. v. Parma (1980), 61 Ohio St. 2d 375, 377 ; State, ex rel. Taft, v. Campanella (1977), 50 Ohio St. 2d 242, 246 ; State, ex rel. Dickman, v. Defenbacher (1955); 164 Ohio St. 142 , paragraph one of the syllabus.

"A legislative enactment will be deemed valid on due process grounds '*** [1] if it bears a real and substantial relation to the public health, safety, morals or general welfare of the public and [2] if it is not unreasonable or arbitrary.' Benjamin v. Columbus (1957), 167 Ohio St. 103 , paragraph five of the syllabus. See, also, Downing v. Cook (1982), 69 Ohio St. 2d 149 ; and DeMoise v. Dowell (1984), 10 Ohio St. 3d 92."

The long established test of due process, where fundamental rights are not involved, is that where the legislative enactment rationally relates to any possible legitimate end of government, due process is satisfied. See Granzow v. Montgomery County Bureau of Support (1990), 54 Ohio St. 3d 35, 37; Exxon Corp. v. Governor of Maryland (1978), 437 U.S. 117.

In the present case, Section 720.01 of Ordinance No. 12-1984 states the purposes for which the fees, collected pursuant to the ordinance, are to be used:

"To protect the public health, safety and welfare of Oregon citizens by generating funds not for general revenue purposes but for the sole purpose of producing sufficient funds to monitor ground water and surface water contamination; to monitor air pollution standards; to provide costs of road maintenance for hazardous waste transportation to such sites; to provide the extraordinary expenses of police and fire protection to

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