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

> Ohio Supreme Court · September 14, 1993 · 1993 Ohio 216

URL: https://www.frixlaw.com/law-library/cases/11147465

## Case

- **Court:** Ohio Supreme Court
- **Decided:** September 14, 1993
- **Citations:** 1993 Ohio 216
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Wright, J.
- **Cited by:** 1 later opinions in the Frix Law Library

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## Opinion text

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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.

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