Atwater Twp. Trustees v. B.F.I. Willowcreek Landfill

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Atwater Township Trustees et al., Appellees, v. B.F.I.

Willowcreek Landfill, Appellant.

[Cite as Atwater Twp. Trustees v. B.F.I. Willowcreek Landfill

(1993), Ohio St.3d .]

Environmental law -- Solid and hazardous wastes -- R.C. 3734.10

expressly reserves rights of state, municipal corporation

or person to bring an action to suppress nuisance against

operator of solid waste disposal site -- Township is a

"person" for purposes of R.C. 3734.10 -- Township may

enforce anti-nuisance zoning resolution against operator

of solid waste disposal site.

1. R.C. 3734.10 expressly reserves the rights of "the state

or any municipal corporation or person" to bring an action

to suppress nuisance against the operator of a solid waste

disposal site.

2. A township is a "person" for the purposes of R.C. 3734.10.

3. A township may enforce its anti-nuisance zoning resolution

against the operator of a solid waste disposal site.

(State ex rel. Brown v. Rockside Reclamation, Inc. [1976],

47 Ohio St.2d 76, 1 O.O.3d 46, 351 N.E.2d 448,

distinguished.)

(No. 92-1064 -- Submitted April 27, 1993 -- Decided

September 15, 1993.)

Appeal from the Court of Appeals for Portage County, No.

91-P-2375.

On May 22, 1990, appellees, Atwater Township Board of

Trustees and the Atwater Township Zoning Inspector ("Atwater"),

filed a complaint in the Portage County Court of Common Pleas

seeking an injunction against appellant, B.F.I. Willowcreek

Landfill ("B.F.I."). B.F.I. is the operator of a solid waste

disposal site located in Atwater Township and licensed by the

Ohio Director of Environmental Protection under R.C. Chapter

3734. Atwater sought to enforce its local anti-nuisance

resolution, Section 1.16 of the Atwater Township Zoning

Resolution.1 Its complaint alleged, inter alia, that the

B.F.I. landfill was maintained in such a manner as to create

"offensive odors, fumes, dust, noise, refuse matter, [and]

water carried wastes, and such use is interfering with the

adjacent land owners [sic] rights of enjoyment and use of their

lands."

B.F.I. filed a motion for summary judgment. B.F.I. argued

that it was entitled to judgment as a matter of law because

Atwater's right to pursue relief under its nuisance resolution

had been preempted by state law. The common pleas court

granted B.F.I.'s motion and dismissed the action. The court

held that "State Law [specifically R.C. 3734.02] preempts local

zoning regulation of landfills in regard to whether a landfill

creates a nuisance." In so ruling, the common pleas court

expressly relied on our decision in State ex rel. Brown v.

Rockside Reclamation, Inc. (1976), 47 Ohio St.2d 76, 1 O.O.3d

46, 351 N.E.2d 448.

The court of appeals reversed. The court held that

Rockside Reclamation was not controlling as a result of

amendments to R.C. 3734.10 enacted subsequent to that

decision. It reasoned, first, that amended R.C. 3734.10

specifically permits the legislative authority of a political

subdivision to bring an action for violations of R.C. Chapter

3734 and that Atwater would be entitled to an injunction upon a

showing that B.F.I. violated R.C. 3734.02(I). Second, it

observed that amended R.C. Chapter 3734, unlike its

predecessor, no longer preempted local enforcement of general

nuisance laws against solid waste disposal site operators. The

court remanded the action for further proceedings on Atwater's

nuisance claim.

The cause is now before this court pursuant to the

allowance of B.F.I.'s motion to certify the record.

David W. Norris, Prosecuting Attorney, Douglas M. Kehres

and Denise L. Smith, Assistant Prosecuting Attorneys, for

appellees.

Robertson, Ross, Zeglen & Pidcock and William S. Pidcock,

for appellant.

Wright, J. This appeal presents a single issue: whether

enforcement of a township's anti-nuisance zoning resolution is

preempted by R.C. Chapter 3734. We hold that it is not.

R.C. Chapter 3734 broadly regulates the disposal of solid

and hazardous waste in the state of Ohio. It empowers the

Director of the Ohio Environmental Protection Agency ("Ohio

EPA") to adopt rules for the inspection and licensing of solid

waste facilities "in order to ensure that the facilities will

be located, maintained, and operated, and will undergo closure

and post-closure care, in a sanitary manner so as not to create

a nuisance, cause or contribute to water pollution, create a

health hazard, or violate 40 C.F.R. 257.3-2 or 40 C.F.R.

257.3-8, as amended. ***" R.C. 3734.02(A). The rules and

regulations promulgated and administered under Chapter 3734 by

the Ohio EPA arise from "a public concern with adverse

environmental effects related to the collection and disposal of

solid waste" and "are imposed for the protection of the

environment and for human health and safety." A & B Refuse

Disposers, Inc. v. Ravenna Twp. Bd. of Trustees (1992), 64 Ohio

St.3d 385, 389, 596 N.E.2d 423, 426.

The common pleas court below held that our decision in

State ex rel. Brown v. Rockside Reclamation, Inc. (1976), 47

Ohio St.2d 76, 1 O.O.3d 46, 351 N.E.2d 448, required it to find

that R.C. Chapter 3734, and specifically R.C. 3734.02,

preempted the enforcement of Atwater's nuisance resolution

against B.F.I. In Rockside we held that the Ohio Attorney

General was barred from bringing an action in common pleas

court under the state nuisance statutes against the operator of

a solid waste disposal site. We reasoned that because the

landfill operator was licensed under R.C. Chapter 3734, it

could not be subject to an injunction under a general nuisance

statute.

R.C. 3734.10 governs when and how an injunction can be

obtained for a violation of R.C. Chapter 3734. At the time

Rockside was decided, an injunction could be obtained against

the operator of a solid waste disposal facility only for

violations of R.C. 3734.01 to 3734.11 and only after a

complaint from a district board of health or the Director of

the Ohio EPA.2 Rockside, supra, 47 Ohio St.2d at 80-82, 1

O.O.3d at 48-49, 351 N.E.2d at 451-452.

Four years after our decision in Rockside, R.C. 3734.10

was significantly amended. Am.S.B. No. 269, 138 Ohio Laws,

Part I, 892. A paragraph was added to the end of the statute

which expressly provided that R.C. Chapter 3734 was not to be

read to abridge the equitable or common-law rights of the

state, municipal corporations, or "person[s]" to "suppress

nuisances or to abate pollution."3 This paragraph was amended

again in 1984. Am.Sub.H.B. No. 506, 140 Ohio Laws, Part II,

4010-4011. The 1984 amendments broadened the ability to pursue

waste disposal site operators by permitting nuisance actions as

"provided by statute" in addition to common-law and equitable

nuisance actions. After the amendments, the last paragraph of

R.C. 3734.10 now reads:

"This chapter does not abridge rights of action or

remedies in equity, under common law, or as provided by statute

or prevent the state or any municipal corporation or person in

the exercise of their rights in equity, under common law, or as

provided by statute to suppress nuisances or to abate or

prevent pollution."

We believe that the 1980 and 1984 amendments to R.C.

3734.10 supersede our decision in Rockside and render its

holdings of no present effect. Accordingly, the common pleas

court erred in relying on that decision.

In general, a validly enacted local law is not preempted

by a state statute unless it conflicts with that statute. See

Fondessy Enterprises, Inc. v. Oregon (1986), 23 Ohio St.3d 213,

23 OBR 372, 492 N.E.2d 797. Enforcement of the Atwater

nuisance resolution cannot be said to conflict with R.C.

Chapter 3734 because R.C. 3734.10 expressly reserves the rights

of "the state or any municipal corporation or person" to bring

an action to suppress nuisances against the operator of a solid

waste disposal site.4 R.C. 3734.10 makes clear that in the

narrow areas of nuisance and pollution prevention and

abatement, political subdivisions of the state retain authority

with regard to solid and hazardous waste disposal facilities.

If the General Assembly had intended R.C. Chapter 3734 to

exclusively occupy the field of solid waste disposal site

regulation, it would not have amended R.C. 3734.10 as it did.

In our view, the unambiguous language of R.C. 3734.10

resolves this appeal. R.C. 3734.10 states that nothing in R.C.

Chapter 3734 prevents a "person" from using rights "provided by

statute *** to suppress nuisances." For the purposes of R.C.

Chapter 3734, "person" includes "any political subdivision."

R.C. 3734.01(G). Atwater Township is a "political subdivision"

of the state of Ohio, R.C. 503.01, and is therefore a "person"

for purposes of R.C. 3734.10.5 Further, it is not disputed

that Section 1.16 of the Atwater Township Zoning Resolution is

a valid exercise of the powers provided to Atwater Township

under R.C. 519.02.6 Therefore, authority for the Atwater

anti-nuisance resolution has been "provided by statute." These

premises lead us without difficulty to the conclusion that

Atwater Township may enforce its anti-nuisance zoning

resolution against B.F.I.

The judgment of the court of appeals is affirmed. The

cause is remanded to the Portage County Court of Common Pleas

for further proceedings consistent with this opinion.

Judgment affirmed

and cause remanded.

Moyer, C.J., A.W. Sweeney, Resnick and Pfeifer, JJ.,

concur.

Douglas and F.E. Sweeney, JJ., dissent.

FOOTNOTES:

1 Section 1.16 of the Atwater Township Zoning Resolution

provides: "No use shall be permitted or authorized to be

established which, when conducted in compliance with the

provisions of this Resolution, and any additional conditions

and requirements prescribed, is or may become hazardous,

noxious, or offensive due to emission of odor, smoke, fumes,

cinders, dust, noise, gas, vibration, electrical interference,

refuse matter, water carried wastes, or which will interfere

with adjacent landowner's [sic] enjoyment of the use of their

lands."

2 Former R.C. 3734.10 provided in pertinent part:

"The Attorney General, or the prosecuting attorney of the

county or the city solicitor or attorney of the city where a

violation occurs, upon complaint of the respective board of

health of the health district or the director of environmental

protection, shall prosecute to termination or bring an action

for injunction against any person violating sections 3734.01 to

3734.11 of the Revised Code. The common pleas court in which

an action for injunction is filed has the jurisdiction to grant

injunctive relief upon a showing that the respondent named in

the petition is operating a solid waste disposal site or

facility in violation of sections 3734.01 to 3734.11 of the

Revised Code." 134 Ohio Laws, Part I, 727.

3 The new paragraph stated in full: "Chapter 3734. of

the Revised Code does not abridge rights of action or remedies

in equity or under common law or prevent the state or any

municipal corporation or person in the exercise of their rights

in equity or under common law to suppress nuisances or to abate

pollution." Id.

4 R.C. 3734.10 also expressly permits county prosecutors

to bring an action alleging any violation of R.C. Chapter 3734

or of the rules, licenses, permits, or orders issued by the EPA

under R.C. Chapter 3734: "[T]he prosecuting attorney of the

county *** where a violation has occurred, *** upon request of

the *** legislative authority of a political subdivision ***,

shall prosecute to termination or bring an action for

injunction against any person who has violated, is violating,

or is threatening to violate any section of this chapter, rules

adopted under this chapter, or terms or conditions of permits,

licenses, variances, or orders issued under this chapter. ***"

5 The argument can be made that the General Assembly did

not intend the word "person" to encompass political

subdivisions for the purposes of the final paragraph of R.C.

3734.10. The argument would be that if the General Assembly

had meant "person" in the broad sense defined in R.C.

3734.01(G), it would not have specifically mentioned the state

and municipal corporations in R.C. 3734.10 because they are

already included in the definition of "person." We find this

argument unpersuasive. In R.C. 3734.01(G), the General

Assembly has unambiguously defined "person" for the purposes of

all of R.C. Chapter 3734. Mindful of the rule that words that

have acquired a particular meaning by legislative definition

"shall be construed accordingly," R.C. 1.42, we choose to

follow the definition of "person" adopted by the legislature in

R.C. 3734.01(G).

6 Unlike home rule municipalities, townships may only

enact laws to the extent expressly permitted by the General

Assembly. Bd. of Bainbridge Twp. Trustees v. Funtime, Inc.

(1990), 55 Ohio St.3d 106, 108, 563 N.E.2d 717, 719. Townships

have been given statutory authority to enact land use and

zoning regulations by R.C. 519.02. Newbury Twp. Bd. of

Trustees v. Lomak Petroleum (Ohio), Inc. (1992), 62 Ohio St.3d

387, 390, 583 N.E.2d 302, 305 ("R.C. 519.02 gives a local board

of township trustees the authority to regulate land use within

the township confines"). R.C. 519.02 provides in pertinent

part: "For the purpose of promoting the public health, safety,

and morals, 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

***." This clear statutory authority has the same force and

effect as the constitutional authority of home rule

municipalities to regulate local land use.

Francis E. Sweeney, Sr., J., dissenting. I respectfully

dissent. The majority opinion undermines the General

Assembly's intent to create a statewide regulatory structure of

uniform operation in this area of environmental legislation.

For this reason, I cannot join in its decision announced today.

The majority recognizes that R.C. Chapter 3734 was enacted

in response to a public concern with adverse environmental

effects related to the collection and disposal of solid wastes,

citing A & B Refuse Disposers, Inc. v. Ravenna Twp. Bd. of

Trustees (1992), 64 Ohio St.3d 385, 389, 596 N.E.2d 423, 426,

and mentions that the General Assembly empowered the Director

of the Ohio EPA to "adopt rules for the inspection and

licensing of solid waste facilities * * *" in order to meet its

stated objectives. R.C. 3734.02(A). However, the majority

conveniently omits the crucial language of that statute which

provides that the director "shall adopt * * * rules having

uniform application throughout the state governing solid waste

facilities * * *."

The majority also neglects to cite R.C. 3745.011, which

provides in pertinent part:

"It is the intent of the general assembly that the

environmental protection agency shall:

"(A) Promulgate and put into execution a long term

comprehensive plan and program to conserve, protect, and

enhance the air, water, and other natural resources of the

state;

"(B) Prevent and abate pollution of the environment for

the protection and preservation of the health, safety, welfare,

and property of the people of the state;

"(C) Administer the air, water, and other natural

resources of the state for the use and benefit of the people of

the state;

"* * *

"(F) Provide for enforcement of the right of the people to

environmental quality consistent with human health and welfare."

Also, I am troubled that the majority chose to ignore the

precedent established in Clermont Environmental Reclamation Co.

v. Wiederhold (1982), 2 Ohio St.3d 44, 2 OBR 587, 442 N.E.2d

1278, paragraphs one and two of the syllabus, holding that

another provision of R.C. Chapter 3734 is a general law of

statewide scope and application, and further requiring that

local laws in conflict must yield to this general law.

Instead, today's majority looks to R.C. 3734.10 to reach

its holding that a township may enforce its anti-nuisance

zoning resolution against a state-regulated solid waste

facility. However, as correctly anticipated by the majority,

the argument can be made that the General Assembly did not

intend the word "person" to encompass political subdivisions

for the purposes of the final paragraph of R.C. 3734.10. While

the majority is not persuaded that "person" is meant in the

natural sense, I disagree.

In construing legislative intent, I am guided by the

wording used by the General Assembly. In the first part of the

statute, the legislative authority of a political subdivision

is specifically named as one of the parties that may request

the county prosecutor to prosecute an action pursuant to this

chapter. However, in the final paragraph of R.C. 3734.10, the

term "political subdivision" is glaringly absent. Instead, the

General Assembly designates "the state," "municipal

corporation" or "person" as proper parties to bring an action

to abate a nuisance. If the General Assembly had intended to

include all political subdivisions it could have expressly so

stated, as it did in the first paragraph of R.C. 3734.10. Had

the legislature meant "person" in the broad sense defined in

R.C. 3734.01(G), it would not have also mentioned the state and

municipal corporations, which are already included in that

definition. Rather, R.C. 3734.10 demonstrates a clear

legislative intent that "person" is meant in the natural

sense. "That which is plainly implied in the language of a

statute is as much a part of it as that which is expressed."

Doyle v. Doyle (1893), 50 Ohio St. 330, 34 N.E. 166, paragraph

one of the syllabus. Any other construction of this portion of

the statute would undermine the General Assembly's intent that

such measure would operate uniformly throughout the state.

I believe that R.C. 3734.10 does contemplate prosecution

by townships of violations, but such prosecution is expressly

limited to violations of state laws. Specifically, R.C.

3734.10 gives the county prosecutor the right, on behalf of a

township, to bring an action alleging a violation of R.C.

Chapter 3734 or of rules, licenses, permits or orders issued

thereunder. The statute does not give a township the right to

bring an action to enforce its own anti-nuisance zoning

provisions.

Finally, the majority states "it is not disputed that

Section 1.16 of the Atwater Township Zoning Resolution is a

valid exercise of the powers provided to Atwater Township under

R.C. 519.02. Therefore, authority for the Atwater

anti-nuisance resolution has been 'provided by statute.'"

Again, I disagree with this pronouncement.

As noted by the majority, Atwater Township, being a

political subdivision created solely by statute, has no

inherent or constitutionally granted police power, the power

upon which zoning legislation is based. Whatever police or

zoning power townships have is strictly limited to that

expressly delegated to them by statute. Bd. of Bainbridge Twp.

Trustees v. Funtime, Inc. (1990), 55 Ohio St.3d 106, 108, 563

N.E.2d 717, 719, citing Yorkavitz v. Twp. Trustees of Columbia

Twp. (1957), 166 Ohio St. 349, 351, 2 O.O.2d 255, 256, 142

N.E.2d 655, 656.

Pursuant to R.C. 519.02, a township is authorized to enact

zoning resolutions to promote the health and safety of its

people. However, the right to enforce its zoning resolutions

is strictly limited to that which is granted to it by statute.

What the state has decreed to be preserved should not be

destroyed by local regulation. It is not difficult to conclude

that if Atwater is permitted to pass more stringent laws within

its borders, there will be, in short order, similar provisions

in every township in Ohio. As pointed out by appellant, if

each local political subdivision is permitted to define what

constitutes a nuisance for the purpose of regulating the

business activities of a solid waste facility licensed by the

EPA, permit holders would be subject to radically different and

inconsistent obligations. When this happens, solid waste site

operators could even be subjected to obligations so

inconsistent as to make it impossible to satisfy one without

violating the other. Surely, this was not the intent of the

General Assembly.

In view of the foregoing, I would hold that Atwater

Township must yield to the general laws of statewide scope and

application. Section 1.16 of the Atwater Township Zoning

Resolution, which places more restrictive requirements on

B.F.I.'s landfill facilities than those imposed by the Ohio

EPA, is ipso facto invalid. Accordingly, I would reverse the

judgment of the appellate court and reinstate the trial court's

decision dismissing the complaint.

Douglas, J., concurs in the foregoing dissenting opinion.