# Fondessy Enterprises, Inc. v. City of Oregon > Ohio Supreme Court · May 7, 1986 · 23 Ohio St. 3d 213 URL: https://www.frixlaw.com/law-library/cases/6759286 ## Case - **Full name:** Fondessy Enterprises, Inc. v. City of Oregon - **Court:** Ohio Supreme Court - **Decided:** May 7, 1986 - **Citations:** 23 Ohio St. 3d 213; 23 Ohio B. 372; 492 N.E.2d 797; 16 Envtl. L. Rep. (Envtl. Law Inst.) 20871; 1986 Ohio LEXIS 631 - **Precedential status:** Published - **Opinion:** Concurrence by Locher - **Judges:** Brown, Celebrezze, Douglas, Fifth, Hoffman, Holmes, Locher, Sweeney, Wright - **Cited by:** 51 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6759286 ## How later opinions describe it (automated extraction) - holding that municipal regulation of a hazardous waste facility was permitted as it did not conflict with state law, but defining “conflict” by stating “the test is whether the ordinance permits or licenses that which the statute forbids and prohibits and vice versa.” 492 N.E.… ## Opinion text Locher, J., concurring. I concur completely with Judge Hoffman’s analysis and decision to uphold the validity of home rule in Ohio. I would only add some additional considerations that have a bearing on this matter. During the course of the constitutional convention in April 1912 there was much debate concerning the efficacy of the home rule proposals. See, generally, Vaubel, Municipal Home Rule in Ohio (1978). Professor George W. Knight, a delegate for Franklin County, was instrumental in supporting the home rule provision against several arguments raised during the course of the debates. These statements are pertinent to a full understanding of home rule in Ohio. On April 29, 1912, Knight set forth the general purpose of the home rule provision, in pertinent part, as follows: “* * * [T]his proposal undertakes pretty nearly to reverse that [prior] rule and to provide that municipalities shall have the power to do those things which are not prohibited, that is, those things with reference to local government, with reference to the affairs which concern the municipality, which are not forbidden by the lawmaking power of the state, or are not in conflict with the general laws of the state under the police power and the general state regulation. So the presumption would now become a presumption in favor of the lawfulness of the municipalities’ act, and that presumption would only be overcome by showing that the power had been denied to the municipalities or that it was against the general laws of the state.” 2 Ohio Constitutional Convention, Proceedings and Debates (1913) 1433. Because the power of a home rule municipality was to be derived from the Constitution, the laws of the municipality would be every bit as authoritative and effective as a state law so long as the local law did not diminish the general state law: “It is not intended to invade state authority in the least, but to make clear that the municipality has the right to enact such local police, sanitary and other similar regulations as are not in conflict with general laws. It can not take away, however, for instance, take the quarantine laws. A city can not make them less strict than the state, but it can make them more strict.” Id. at 1439. Clearly, in the instant controversy, Oregon’s ordinance in no way lessens the state statute. Under such circumstances this court is constitutionally obligated to uphold the city ordinance or forfeit our institutional role as guardian of the state Constitution. Addressing the spirit behind the movement for a Home Rule Amendment, the words of Robert Crosser, a lawyer delegate from Cuyahoga County, further support this position: “The advocates of home rule merely insist that municipalities be al *220 lowed to solve their own problems and control their own affairs, independent of outside authority, whether that authority be a monarchy, an oligarchy or the people of a whole state. In short, the cities merely ask that the principle of self-government be extended to them. At the present time they find themselves in the predicament of the women, the only other beings in the state denied the right to self government. U* * * “* * * [T]he people of the cities are left in a position where they have absolutely no control over their own destinies, and they are blamed for not taking an interest in the city government and for lacking in civic patriotism and righteousness.” Id. at 1483-1484 (April 30, 1912). It is my view that the adoption of home rule in Ohio was as important a step in government to this state as the federal Constitution was to the United States as a whole. To disenfranchise communities in the name of expediency and to relegate home rule to the dust bins of benign neglect cannot be countenanced by this court. Today’s decision should serve to revivify our constitutional commitment to the people of this state to control their own destinies. In view of the dangers posed by hazardous substances to a community, one would be hard pressed to conceive of an area more conducive to the constructive utilization of a municipality’s police, health and safety powers. Ordinance No. 12-1984 complements and, in effect, exceeds the basic requirements of R.C. Chapter 3734. In such circumstances this court has consistently affirmed a municipality’s home rule prerogatives. See, e.g., Niles v. Howard (1984), 12 Ohio St. 3d 162 ; Vaubel, supra, at 650-813. As Judge Hoffman has pointed out, and I would reemphasize, pecuniary ex-post-facto relief from a hazardous waste accident will do little to bring back a human life or restore a livelihood. Only with a full disclosure of information will a city be able to take the necessary steps to limit the damage of an accident. Similarly, with the propensity of companies to seek the safe harbors of bankruptcy in the event of catastrophic liability, it makes far more sense for a city such as Oregon to take whatever preventive steps are necessary to prepare for the worst. In this manner a city may, to some degree, have control over its own future as the framers of the Home Rule Amendment had intended. With the austere domestic budgets and Gramm-Rudman cuts looming, the federal revenue sharing spigot is being closed. The problem is compounded because the finances of the state of Ohio cannot pick up the slack. Consequently, more and more responsibilities fall upon the shoulders of local officials. Due to the foresight of the framers of the 1912 Constitution in adopting home rule, and the subsequent application of the doctrine by this court, the inevitable shifting of federal activities to state and local governments need not be an invitation to disaster but an invitation to greater control by the people of this state over their own destinies and an opportunity for municipalities to enact legislation complementing state legislation. *221 Nor have the federal and state control and oversight of hazardous waste sites been as successful as had been hoped. Indeed, the “Love Canals” are proliferating — no less than nineteen thousand uncontrolled hazardous waste sites have been inventoried and over five hundred have met the criteria for inclusion in the National Priorities List under the “Superfund Law.” All the more reason for the local entity whose concern is the most grave to keep its fixed gaze upon the dump sites and to make certain the good earth is not prostituted. Accordingly I concur in today’s majority opinion. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6759286. Public record. Not legal advice.