Court News Ohio
Court News Ohio
Court News Ohio

Ninth District: City Can Seek Nuisance Order Against Foul-Smelling Factory

The city of Wooster brought a nuisance complaint against an industrial waste treatment plant after nearby residents complained of eye-watering fumes and rotten egg-smelling stench, but a trial court ruled the city had no right to pursue the case. A state appeals court overruled the decision, but it comes just as the complaining residents have appeared to reach a settlement with the plant regarding their plight.

On Monday, the Ninth District Court of Appeals reversed the February 2013 Wayne County Common Pleas Court decision granting summary judgment for Enviro-Tank Clean, Inc. The trial court failed to consider if state law gave the city to right to pursue a nuisance claim on behalf of its citizens even if the city itself was not personally impacted by the plant’s emissions, the appellate court ruled.

A month after the trial court sided with Enviro-Tank, nearby residents launched a class action lawsuit guided by a Wooster law firm that partnered with Michigan-based Macuga, Liddle & Dubin, a firm specializing in air pollution cases. A May 7 entry from the Wayne County Common Pleas Clerk of Courts indicated the court granted preliminary approval to a settlement agreement between the two sides and set a final fairness hearing for July 22. Details of the settlement have yet to be released on the Macuga, Liddle & Dubin website, where the court has instructed them to be posted when available.

Wooster initiated its lawsuit in April 2012 after receiving complaints from residents living near the Enviro-Tank facility on Industrial Blvd. in the southeast area of the city. The city claimed the emission of noxious odors caused “injury and discomfort to those living in proximity to the facility, as well as substantially and unreasonably interfering with their use and enjoyment of the surrounding properties.”

Enviro-Tank countered the city lacked standing to bring the suit because it was doing so on behalf of its citizens and not based on any injury to its own property. In addition, the company argued if the city wanted to represent citizens, it failed to follow the appropriate procedures to do so. The city responded by attempting to amend its complaint to include harm to its own property, but the trial court denied the motion and ruled in favor of the company declaring the city failed to identify any way it was being harmed. The city appealed to the Ninth District.

Writing for the appellate court, Judge Carla Moore noted there are two ways for a city to gain standing; by general common law principles or if it is granted authority by a state statute. Under common law, the city must demonstrate it suffered an actual injury, show the injury is connected to the wrongful conduct of the plant, and address how a favorable court ruling would correct the wrongdoing.

Citing the Ohio Supreme Court’s 1986 Middleton v. Ferguson decision, Judge Moore wrote a city does not have to demonstrate it has a personal stake in the matter if there is a statute that allows it to bring a case.  The city argued that R.C. 3767.03 allows a city law director to bring a public nuisance case.

“Here the trial court confined its examination to general common law standing principles,” she wrote. “Thus, while the trial court correctly cited the law concerning common law standing, it did not consider the precise issues raised by the parties or the possibility that the city could have standing notwithstanding the lack of allegations in the complaint concerning damage to city-owned property.”

The Ninth District remanded the case to the trial court to consider if the city has standing to bring the complaint.

Judges Jennifer Hensal and Donna Carr concurred in the decision.

Wooster v. Enviro-Tank Clean, Inc., 2015-Ohio-1876.
http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2015/2015-Ohio-1876.pdf
Civil Appeal From: Wayne County Common Pleas
Judgment Appealed From Is: Reversed
Date of Judgment Entry on Appeal: May 18, 2015

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