Rumpke Waste, Inc. v. Henderson

• Decision Date: 30 July 1984
• Docket Number: No. C-1-83-1123.,C-1-83-1123.
• Citation: 591 F. Supp. 521
• Parties: RUMPKE WASTE, INC., et al., Plaintiffs, v. Walter HENDERSON, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

591 F. Supp. 521

RUMPKE WASTE, INC., et al., Plaintiffs, v. Walter HENDERSON, et al., Defendants.

No. C-1-83-1123.

United States District Court, S.D. Ohio, W.D.

July 30, 1984.

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COPYRIGHT MATERIAL OMITTED

William A. Posey, and Louis F. Gilligan, Cincinnati, Ohio, for plaintiffs.

Dexter Bastin, and Andrew Dennison, Batavia, Ohio, for defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

SPIEGEL, District Judge:

This case arises out of a zoning resolution adopted by the Pike Township Board of Trustees in May 1983. Plaintiffs claim that this resolution deprives them of their property rights without due process of law in violation of the Fourteenth Amendment to the Federal Constitution. They assert first that it was the intent of the Trustees and of the Pike Township Zoning Commissioners in adopting the resolution to exclude totally sanitary landfills. Secondly, they argue that the resolution is unconstitutionally vague. Third, they maintain that the resolution has no substantial relevance to the public health, safety, morals, or welfare of the citizens of Pike Township. They maintain further that the resolution is not a comprehensive zoning plan as required by Ohio Rev.Code § 519.02. Finally, they insist that the members of the Zoning Commission charged with developing the resolution failed to make use of information and assistance available from public officials, departments, and agencies as required by Ohio Rev.Code § 519.05.

I.

Plaintiffs John and Ruth Ellen Railsback own a tract of land of approximately six hundred and fifty-two acres in Pike Township, Brown County, Ohio (Railsback property). In June 1982 plaintiff Rumpke Waste, Inc. (Rumpke) entered into a contract to purchase this property for use as a sanitary landfill subject to certain conditions, including final approval from the Ohio Environmental Protection Agency (OEPA) to use the Railsback property as a sanitary landfill. The contract is also conditioned upon the absence of zoning restrictions that would prohibit the installation and operation of such a landfill on the Railsback property. At the time the Railsbacks and Rumpke entered into this contract, there was no zoning in Pike Township.

On May 14, 1983 the Pike Township Board of Trustees adopted a zoning resolution proposed by the Zoning Commission for the unincorporated area of Pike Township including the Railsback property. The Trustees also authorized a special election to be held August 2, 1983, at which time the resolution would be presented to the voters pursuant to statutory requirements.

On July 29, 1983 plaintiffs filed a complaint and motion for a temporary restraining order, asking this Court to enjoin the election from proceeding. Following a hearing, the Court entered an agreed-upon order on August 3, 1983 allowing the election to proceed but restraining certification of the election results. This order had the effect of maintaining the status quo pending trial and decision on the merits. The resolution was passed by a majority of the voters in the special election.

The question before us is whether the Pike Township zoning resolution, as written, denies plaintiffs property rights without due process of law in violation of the Fourteenth Amendment.¹ A zoning resolution does not violate the due process clause if it is reasonable and substantially related to public health, safety, morals or general welfare. Euclid v. Ambler Realty, 272 U.S. 365, 395, 47 S.Ct. 114, 121, 71 L.Ed. 303 (1926). Zoning ordinances are accorded a presumption of constitutionality if the validity of the zoning classification is fairly debatable. Id. at 388, 47 S.Ct. at 118. This presumption flows out the recognition that the local legislative body is more familiar with local conditions and thus in a better position than the courts to determine the nature and scope of necessary regulation. Hudson v. Albrecht, Inc., 9 Ohio St.3d 69, 71-72, 458 N.E.2d 852 (1984). See also Lakewood, Ohio Congregation of Jehovah's Witness v. City of Lakewood, 699 F.2d 303, 308 (6th Cir.1983).

II.

In adopting the resolution at issue here, the Pike Township Board of Trustees followed the statutory procedures governing the adoption of zoning by an Ohio township and set forth at Ohio Rev.Code §§ 519.01 et seq. Section 519.02 states:

The board of township trustees may in accordance with a comprehensive plan regulate by resolution . . . the uses of land for trade, industry, residence, recreation or other purposes in the unincorporated territory of such township.

"Comprehensive plan" is not defined in this or any other subsection of the chapter governing township zoning. Before the board of trustees can act, however, it must pass a resolution, either sua sponte or upon receipt of a petition signed by the requisite number of qualified voters, stating its intention to proceed with zoning. Ohio Rev. Code § 519.03. The trustees then establish a zoning commission charged with submitting a plan, including text and map, representing its recommendations to the trustees. Ohio Rev.Code §§ 519.04, 519.05. The statute states:

The zoning commission shall make use of such information and counsel as is available from appropriate public officials, departments, and agencies, ....

Ohio Rev.Code § 519.05. The zoning commission must also hold at least one public meeting, notice of which must be given in a newspaper of general circulation not less than thirty days before the hearing before certifying its recommendation to the trustees. Ohio Rev.Code § 519.06.

After receiving the certified plan from the zoning commission, the trustees must hold a public hearing on the resolution at least thirty days after giving notice of the time and place of the hearing. Ohio Rev. Code § 519.08. If changes are proposed, these changes must be submitted to the zoning commission for comment. After the zoning commission makes its recommendations regarding the proposed changes to the trustees, the trustees must hold a second public hearing following appropriate notice. Ohio Rev.Code § 519.09. Following this public meeting the trustees vote upon adoption of the zoning resolution. If the trustees adopt the plan, the plan is then submitted to the voters for approval or disapproval. If the zoning resolution is approved by a majority of the vote cast, it becomes effective upon certification by the board of elections. Ohio Rev. Code §§ 519.10, 519.11.

The parties agree that the Pike Township Board of Trustees and Zoning Commission complied with the statutory procedures just outlined with two exceptions. Plaintiffs challenge whether the zoning resolution is a comprehensive plan as required by Ohio Rev.Code § 519.02, as well as whether the Zoning Commission complied with the directive of Ohio Rev.Code § 519.05 to make use of available information and counsel. These challenges will be examined later. Before proceeding to plaintiffs' arguments, however, it is appropriate to look at the procedures by which a zoning resolution, once adopted, can be modified.

A zoning resolution may be modified by amendment. The amendment process, which is also governed by statute, may be initiated by, among others, an owner of property within the area subject to the amendment by filing an application with the trustees. After an application for amendment has been filed, the zoning commission must set a date for a public hearing on the proposal and give appropriate notice. Following the hearing, the zoning commission submits its recommendation regarding the amendment to the township trustees who set a date for another public hearing and give appropriate notice. Following this hearing, the trustees may either adopt, deny or modify the zoning commission's recommendation. The amendment as adopted by the trustees becomes effective in thirty days unless a petition signed by a specified number of voters and asking that the amendment be put before the voters at the next primary or general election is presented to the trustees. Unless the amendment receives a majority of the vote cast in the referendum, it does not become effective. Ohio Rev.Code § 519.12.

The trustees of any township with zoning regulations must appoint a board of zoning appeals. Ohio Rev.Code § 519.13. Among the board's power is the authority to grant conditional zoning certificates for the use of land if the zoning resolution provides for such certificates for specific uses. Ohio Rev.Code § 519.14(C). In other words, a person seeking to use land in a particular fashion may apply to the board of zoning appeals for a conditional use permit, but only if the zoning resolution specifies that the proposed use is permitted in that district or zone pursuant to a conditional use permit. A party adversely affected by a decision of the board of zoning appeals has the right of appeal to the Court of Common Pleas. Ohio Rev.Code § 2506.01.

The amendment procedure is a legislative one. Tuber v. Perkins, 6 Ohio St.2d 155, 216 N.E.2d 877 (1966). A person wishing to have certain property rezoned would follow the amendment procedure. The procedure for applying for a conditional use permit is administrative. Furthermore, it is unavailable unless the zoning resolution allows for the proposed use pursuant to a conditional use permit.

Finally, a declaratory judgment action is available to determine the constitutionality of a zoning ordinance as it applies to a specific piece of property. However, failure to exhaust administrative remedies is an affirmative defense unless there is no administrative remedy available that could provide the relief sought or the administrative remedy is unnecessarily onerous. Driscoll v. Austintown Associates, 42 Ohio St.2d 263, 273-75, 328 N.E.2d 395 (1975).

III.

The record contains two zoning resolutions. The parties have stipulated that plaintiffs' exhibit 1 is a true and accurate copy of a draft of the first zoning resolution prepared and considered by the Zoning Commission. That...