Holcomb v. Schlichter

• Decision Date: 24 November 1986
• Docket Number: No. CA85-11-138,CA85-11-138
• Parties: HOLCOMB, Pros. Atty., Appellee, et al., v. SCHLICHTER et al., Appellants.
• Court: Ohio Court of Appeals

Page 161

34 Ohio App.3d 161

517 N.E.2d 1001

HOLCOMB, Pros. Atty., Appellee, et al., v. SCHLICHTER et al., Appellants.

No. CA85-11-138.

Court of Appeals of Ohio, Twelfth District, Butler County.

Nov. 24, 1986.

Syllabus by the Court

1. In the absence of an official request by a county board or officer, R.C. 309.09 does not authorize a prosecuting attorney to seek to enforce a prior permanent injunction.

2. R.C. 519.24 does not authorize a prosecuting attorney to seek to enforce a prior permanent injunction arising from a county, as opposed to a township zoning dispute.

3. A prosecuting attorney can not bring an action for injunctive relief under R.C. 3734.10 in the absence of a request by those persons and entities listed therein.

John F. Holcomb, Pros. Atty., and Victoria Daiker, Hamilton, for appellee.

Baden, Jones, Scheper & Crehan Co., L.P.A., and Thomas W. Baden, Hamilton, for appellants.

PER CURIAM.

This cause came on to be heard upon an appeal from the Court of Common Pleas of Butler County.

This is an appeal by defendants-appellants, Oscar F. Schlichter and others, from a decision which enjoined appellants from using their property for the disposal of household and commercial garbage, or other putrescible substances.

On June 7, 1984, plaintiff-appellee, John F. Holcomb, the Butler County Prosecuting Attorney, and nine other residents of Butler County, ¹ brought a declaratory judgment and permanent injunction action against appellants. Plaintiffs' suit alleged appellants have operated a landfill on Hamilton-Cleves Road for seventeen years where all types of refuse have been and are still being dumped. Plaintiffs further alleged appellants originally obtained a permit in 1966 to use the property in question as an industrial waste landfill, but that in a 1971 Butler County Common Pleas Court case styled Cecere v. Schlichter, case No. 87557, unreported, appellants' use of the property as a landfill was limited by a permanent injunction to disposal only of non-contaminating or non-polluting refuse, thereby forbidding appellants from accepting ordinary refuse, garbage or similar substances.

In spite of this permanent injunction, the complaint states appellants continued to accept waste including paint, paint thinner, solvents, and petroleum products, as well as household garbage from the city of Hamilton. By accepting these substances, plaintiffs alleged, appellants have violated the 1971 injunction, and endangered an underground aquifer providing water to area residents and business which, if not enjoined, would result in such water's contamination or pollution. Accordingly, plaintiffs asked the court to declare that appellants' acceptance of garbage and toxic materials was illegal, and that the 1971 injunction remains valid and unaffected by the outcome of a private lawsuit brought by appellants' neighbors which attempted, unsuccessfully, to recover damages or have the dump closed as a nuisance. ²

On March 18, 1985, the trial court herein issued an opinion in which it found, inter alia, that any claims about illegal dumping activities at the Schlichter landfill should be filed with the Ohio Environmental Protection Agency for administrative hearings pursuant to R.C. 3745.08 and R.C. Chapter 3734. Additionally, the court found the 1971 injunction's limitations on the forms of fill which appellants might accept were still viable and constituted a limitation on the types of waste appellants might accept irrespective of the result of the action brought by appellants' neighbors, which arguably expanded the types of substances appellants could accept at their landfill.

Dissatisfied with the trial court's opinion, appellants filed a motion for reconsideration in which they emphasized the trial court's failure to address their questions about Holcomb's and the other nine plaintiffs' lack of standing and questioned the court's opinion in light of the General Assembly's creation of the Ohio Environmental Protection Agency and the enactment of a statewide solid waste disposal law.

On October 22, 1985, the trial court filed its final order sustaining appellants' objection to the standing of the nine plaintiffs who joined in the bringing of the instant action as residents/public officials, but overruled appellants' standing objection with respect to appellee, John F. Holcomb, the Butler County Prosecuting Attorney, finding Holcomb was authorized by R.C. 309.09 and 519.24 to bring this action. Having determined one plaintiff had standing to sue, the court entered judgment in accordance with its earlier opinion and enjoined appellants from using their property for the disposal of household and commercial garbage, and other putrescible substances. Appellants appealed.

In their brief before this court appellants assign three errors:

"The trial court erred to the prejudice of defendants-appellants in holding that defendants-appellants are prohibited from using their property for the disposal of household and commercial garbage or other putrescible substances."

"The court erred in failing to dismiss the action because plaintiff-appellee is not the real party in interest."

"The trial court erred in holding that the 1974 judgment was binding only on the parties to the action."

We will address these assignments of error out of order because of their substance.

For their second assignment of error, appellants allege the trial court erred in finding appellee John F. Holcomb was a proper party to bring this action because he is a real party in interest.

In support of their second assignment of error, appellants argue R.C. Chapters 3745 and 3734 provide the only manner in which a violation of Ohio's solid waste disposal laws may be prosecuted, and that neither was followed here. Appellants also claim the trial court's reliance on R.C. 309.09 and 519.24 as a basis for appellee's standing is misplaced in that R.C. 309.09 is merely a statute designating the prosecuting attorney the county government's legal advisor and empowering him to bring suit when county officials direct one be brought or defend them when they are named defendants in a suit. Appellants claim county officials did not direct that this suit be brought. Similarly, appellants claim R.C. 519.24 is inapplicable here because the complaint sub judice seeks only to resolve the inconsistency between two judgments regarding permissible landfill substances at appellant's site and is not brought in the name of either party-plaintiff in the prior proceedings.

Appellee concedes his standing to sue is statutory in origin. However, he claims he has standing under R.C. 309.09, 2721.02 and 2721.03, which pertain to the bases upon which declaratory judgment relief is available. Finally, appellee claims standing based upon R.C. 3734.10, which provides a prosecuting attorney may bring an action to enforce violations of R.C. Chapter 3734 upon the request of the local board of health.

In order to evaluate appellee's standing it is necessary to closely scrutinize the complaint herein and the allegations set forth therein upon which appellee claims to be entitled to relief. In order to have standing to sue appellee must...