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Supreme Court Holds Private Landfill is Not a ‘Public Utility’ Exempt From Township Zoning Authority

A Supreme Court opinion clarifies that privately owned sanitary landfills not subject to specific statutory and regulatory requirements are not public utilities exempt from township zoning authorities.

A Supreme Court opinion clarifies that privately owned sanitary landfills not subject to specific statutory and regulatory requirements are not public utilities exempt from township zoning authorities.

A Supreme Court opinion clarifies that privately owned sanitary landfills not subject to specific statutory and regulatory requirements are not public utilities exempt from township zoning authorities.

A Supreme Court opinion clarifies that privately owned sanitary landfills not subject to specific statutory and regulatory requirements are not public utilities exempt from township zoning authorities.

The Supreme Court of Ohio ruled today that a private landfill is not a “public utility” exempt from the zoning authority of a township in which it is located if the landfill is not subject to public regulation of its rates and charges, is not obligated by law or regulation to accept all solid waste delivered to it for disposal and the public does not have a right to demand and receive its services.

Applying that analysis to a Hamilton County case, the court reversed a decision in which the First District Court of Appeals had held that a landfill operated by Rumpke Sanitary Landfill in Colerain Township near Cincinnati met the common law requirements of a public utility, and was therefore exempt from the township’s zoning authority.

The court’s 7-0 decision was authored by Chief Justice Maureen O’Connor.

The case arose in 2006 when Rumpke, which operates a landfill on a portion of approximately 350 acres the company owns in Colerain Township, applied to the township’s zoning commission for a change in zoning that would permit Rumpke to expand its landfill operation into a portion of its property not previously zoned for such use. The zoning commission recommended against the requested rezoning. Following public hearings, the township trustees denied Rumpke’s application.

Rumpke responded by filing suit in the Hamilton County Court of Common Pleas seeking a declaratory judgment and compensation for what the company alleged was a regulatory “taking” of its property by the township when it denied the requested rezoning.  Rumpke later amended its complaint to request a declaratory judgment that its landfill fell within the common law definition of a “public utility” exempt from local zoning under R.C. 519.211, and the company therefore could expand its landfill without the approval of Colerain Township. 

Both the company and the township filed motions for summary judgment on the issue of whether
the landfill was a public utility exempt from local zoning.  The trial court entered summary judgment in favor of Rumpke, holding that the landfill was exempt from local zoning regulations because if fell within the legal definition of  a public utility. The township appealed. On review, the First District Court of Appeals affirmed the trial court’s summary judgment in favor of Rumpke. Colerain Township sought and was granted Supreme Court review of the First District’s decision.

In today’s decision reversing the First District, Chief Justice O’Connor wrote:  “Although the General Assembly exempted public utilities from zoning restrictions, it did not define “public utility” insofar as it relates to R.C. 519.211. This court’s jurisprudence, however, offers guidance as to what constitutes a public utility for purposes of R.C. 519.211.”

She cited the court’s holdings in Marano v. Gibbs (1989) and A & B Refuse Disposers, Inc. v. Ravenna Twp. Bd. of Trustees (1992) that in order to meet the requirements of a public utility, the nature of an enterprise must be a “public concern,” and that enterprise must provide a “public service” that is available “indiscriminately and reasonably” to the general public.

Applying the court’s criteria from Marano and A & B Refuse Disposers to this case, Chief Justice O’Connor wrote: “Turning to the public-service factor, the lack of governmental regulation means that Rumpke determines to whom it provides its service and how or when that service is provided.  The general public has no legal right to demand or receive Rumpke’s services. Therefore, there is no assurance or guarantee that Rumpke will provide its services to the public indiscriminately and reasonably, nor is there anything preventing Rumpke from arbitrarily or unreasonably withdrawing its services.  Rumpke could lawfully close its doors to the public. Furthermore, as a private company, Rumpke has the ability to set its own rates without any governmental oversight. Thus, Rumpke fails to meet the public-service factor of the public-utility test.”

“As for the public-concern factor, the parties do not dispute that Rumpke occupies a monopolistic position in the marketplace by collecting the majority of the solid waste generated within Hamilton County.  Rumpke also provides an essential service by operating its sanitary landfill and collecting and disposing of solid waste.  However, no governmental body, including the OEPA and HCRSWD, regulates the rates or methods of Rumpke.  That means that Rumpke may treat discriminately and arbitrarily the portion of the public to whom it provides its services.  Because Rumpke dominates such a large portion of the market and provides an essential service but does so without any government oversight or regulation, it is not a public concern.”

The lack of governmental control over the public-service and public-concern factors in A & B Refuse Disposers is critical in determining that Rumpke is not a public utility.  Thus, we hold that a privately owned sanitary landfill cannot be a common-law public utility exempt from township zoning when there is no public regulation or oversight of its rates and charges, no statutory or regulatory requirement that all solid waste delivered to the landfill be accepted for disposal, and no right of the public to demand and receive its services.”

“For these reasons, we reverse the appellate court’s decision affirming the trial court’s declaration that Rumpke is a public utility for purposes of R.C. 519.211.  Therefore, we remand the cause to the trial court.”

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion, but only for noteworthy cases. Opinion summaries are not to be considered as official headnotes or syllabi of court opinions. The full text of this and other court opinions are available online.

2011-0181Rumpke Sanitary Landfill, Inc. v. Colerain Twp., Slip Opinion No. 2012-Ohio-3914.
Hamilton App. No. C-090223.  Judgment reversed and cause remanded.
O’Connor, C.J., and Pfeifer, Lundberg Stratton, O’Donnell, Lanzinger, Cupp, and McGee Brown, JJ., concur.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2012/2012-Ohio-3914.pdf

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