Fondessy Enterprises, Inc. v. City of Oregon

• Decision Date: 07 May 1986
• Docket Number: No. 85-395,85-395
• Parties: , 23 O.B.R. 372, 16 Envtl. L. Rep. 20,871 FONDESSY ENTERPRISES, INC., Appellee, v. CITY OF OREGON, Appellant, et al.
• Court: Ohio Supreme Court

Page 213

23 Ohio St.3d 213

492 N.E.2d 797, 23 O.B.R. 372, 16 Envtl. L. Rep. 20,871

FONDESSY ENTERPRISES, INC., Appellee, v. CITY OF OREGON, Appellant, et al.

No. 85-395.

Supreme Court of Ohio.

May 7, 1986.

Syllabus by the Court

1. The authority conferred by Section 3, Article XVIII of the Ohio Constitution upon municipalities to adopt and enforce police regulations is limited only by general laws in conflict therewith upon the same subject matter. (Akron v. Scalera [1939], 135 Ohio St. 65, 19 N.E.2d 279, paragraph one of the syllabus, approved and followed.)

2. In determining if a municipal ordinance is in conflict with the general state statute, "the test is whether the ordinance permits or licenses that which the statute forbids and prohibits, and vice versa." (Struthers v. Sokol [1923], 108 Ohio St. 263, 140 N.E. 519, paragraph two of the syllabus, approved and followed.)

3. A municipal police power ordinance which does not alter, impair, or limit the operation of a state-licensed hazardous waste facility may be found not to be in conflict with R.C. Chapter 3734. (Clermont Environmental Reclamation Co. v. Wiederhold [1982], 2 Ohio St.3d 44, 442 N.E.2d 1278, construed.)

4. Where state laws and municipal ordinances concerning the monitoring of hazardous waste landfill facilities located within the corporate limits of the city do not conflict, the state and municipality have concurrent authority under their respective police powers to enforce their respective directives within the corporate limits of the city.

5. The authority of the Environmental Protection Agency to license, supervise, inspect, and regulate hazardous waste facilities does not preclude municipalities from enacting police power ordinances which do not conflict with that authority.

Appellee, Fondessy Enterprises, Inc., owns and operates a hazardous waste landfill facility within the city of Oregon with a permit issued by the Ohio Hazardous Waste Facility Board under the authority of R.C. Chapter 3734. Appellee's landfill facility is regulated by the Director of Environmental Protection under R.C. Chapter 3734 and the rules and regulations adopted thereunder.

Appellee acquired the site and operated it as a hazardous waste landfill by virtue of the permit from the Ohio Hazardous Waste Facility Board issued prior to January 23, 1984, when the appellant, city of Oregon, through its elected council adopted Ordinance No. 12-1984.

Under this ordinance, a "permit fee" was imposed upon all hazardous waste landfills located within the city's borders "for the purpose not to generate revenue, but for the sole purpose of generating sufficient funds in order to protect the environmental safety, health and welfare of its citizens."

The ordinance required the landfill operators to keep complete and accurate records and manifests on forms provided by the city, showing the amount, type and volume of hazardous waste disposed within the facility each day, and to remit monthly the "permit fee" and file the forms with the city's clerk auditor.

Appellee thereafter filed a complaint for declaratory judgment in the common pleas court seeking to have the ordinance declared invalid. Appellee also sought injunctive relief. In its complaint, Fondessy alleged that the regulations of hazardous waste facilities in the state was preempted as a matter of law to the exclusion of all political subdivisions. The trial court bifurcated the matter for hearing, reserving until later appellee's claim that the ordinance violated the Due Process and Equal Protection Clauses of the Constitutions of the United States and the state of Ohio.

After the hearing, the trial court held that R.C. 3734.05(D)(3) precluded the operation of Ordinance No. 12-1984 and entered judgment for appellee. Upon appeal, the court of appeals affirmed.

This cause is now before this court pursuant to the allowance of a motion to certify the record.

Eastman & Smith, Jamille G. Jamra, Henry N. Heuerman and Richard T. Sargeant, Toledo, for appellee.

Nick Batt, Director of Law, Toledo, for appellant.

Calfee Halter & Griswold and John E. Gotherman, Cleveland, urging reversal for amicus curiae, Ohio Municipal League.

HOFFMAN, Justice.

The issues presented in this case are of vital concern and great public interest to every citizen of Ohio, and more particularly, to those citizens who must reside near or otherwise be in close proximity to hazardous waste landfill facilities. We need not dwell at length upon the severity of the problem of hazardous waste in our state. By its very statutory definition, hazardous wastes (generally the chemical by-products of industry and manufacturing) "[p]ose a substantial present or potential hazard to human health or safety or to the environment when improperly stored, treated, transported, disposed of, or otherwise managed." R.C. 3734.01(J)(2).

Three years ago, in Clermont Environmental Reclamation Co. v. Wiederhold (1982), 2 Ohio St.3d 44, 45, 442 N.E.2d 1278, we described the disposal of hazardous waste as a "rapidly growing public health problem." This phrase carries even more weight today, and it is evident that the combined efforts of every level of government (federal, state and municipal) are essential to control and conquer a potentially deadly threat to the public resulting from the disposal of hazardous waste. Recognizing that clear and present danger to its citizens, the appellant responded by producing the legislation in question herein.

For the protection and welfare of its citizens, we believe that every municipality has a compelling need to know, accurately and timely, what hazardous wastes are being disposed of and stored long-term within its city limits. Thus, the sole issue raised by this appeal is whether the legislature in enacting R.C. Chapter 3734 has completely foreclosed and precluded a "home rule" municipality from any and all monitoring of hazardous waste facilities located within its borders.

To begin with, we reaffirm that the appellant is vested with primary authority to enact police power ordinances not in conflict with the state's general laws. Section 3, Article XVIII of the Ohio Constitution grants municipalities the power " * * * to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws."

Nor can this power of home rule, expressly conferred upon municipalities, be withdrawn by the General Assembly. Akron v. Scalera (1939), 135 Ohio St. 65, at 66, 19 N.E.2d 279 . The authority conferred by Section 3, Article XVIII of the Ohio Constitution upon municipalities to adopt and enforce police regulations is limited only by general laws in conflict therewith upon the same subject matter. Scalera, supra, at paragraph one of the syllabus.

At the center of the cause sub judice is R.C. 3734.05(D)(3) and the construction given to it by this court in Clermont, supra. Clermont struck down a township zoning resolution that would have had the effect of banning the continued operations of a preexisting hazardous waste facility already constructed and legally in operation under R.C. Chapter 3734. We said in Clermont that R.C. 3734.05(D)(3) was a general law of the state and its language prohibited any political subdivision of the state from "requiring any additional zoning or other approval for the construction and operation of a hazardous waste facility" duly licensed under R.C. Chapter 3734. Id. at paragraph one of the syllabus.

Both courts below in the instant case based their decisions on R.C. 3734.05(D)(3) as expressly preempting the appellant from enacting Ordinance No. 12-1984. R.C. 3734.05(D)(3) provides:

"No political subdivision of this state shall require any additional zoning or other approval, consent, permit, certificate, or other condition for the construction or operation of a hazardous waste facility authorized by a hazardous waste facility installation and operation permit issued pursuant to this chapter, nor shall any political subdivision adopt or enforce any law, ordinance, or regulation that in any way alters, impairs, or limits the authority granted in the permit."

In straightforward fashion, we admit that paragraph two of the syllabus of Clermont and the holding therein do not entirely comport with each other. Because of the importance of resolving this inconsistency, we cite the language in question:

"2. R.C. 3734.05(D)(3) was enacted by the General Assembly for the protection of the environment of the state and for the health and safety of its citizens as a reasonable exercise of the state's general police power. Such law being a 'general law' to carry out these statewide legislative goals, municipalities are subject to its provisions notwithstanding the provisions of Section 3, Article XVIII of the Ohio Constitution." (Emphasis added.) Id. at paragraph two of the syllabus.

"Further, we hold that such section of law being a general law enacted within a reasonable exercise of the police power of the state takes precedence over laws in conflict therewith enacted by municipalities pursuant to home rule power granted by Section 3, Article XVIII of the Ohio Constitution. Accordingly, the judgment of the court of appeals is hereby affirmed." (Emphasis added.) Id. 2 Ohio St.3d at 50, 442 N.E.2d 1278.

Taken together, paragraph two of the syllabus of Clermont and its holding should mean that no municipal ordinance may be enacted which conflicts with the state statute. The holding of Clermont calls for the application of the conflict test, that still being the same as enunciated by this court in Struthers v. Sokol (1923), 108 Ohio St. 263, 140 N.E. 519, and applied to the instant appeal, infra.

If the provisions of R.C. 3734.05(D)(3) do preclude a home rule municipality, with police powers guaranteed it by the Ohio Constitution, from enacting any and all legislation related to the state statute, then that provision of state law must be...