Gertsma v. City of Berea

Patton, Judge. Plaintiffs Laurence and Mildred Gertsma, landlords of two separate eight-unit apartment buildings in Berea, brought this declaratory judgment action against *658 the city of Berea, challenging the constitutionality of Berea Codified Ordinance No. 90-117. That ordinance requires owners of commercial buildings and apartment buildings with more than four units to arrange for and pay for private trash collection. Plaintiffs claimed that the ordinance violated their rights to equal protection under the law; the city claimed that the ordinance was a legitimate cost-cutting effort. Both sides filed motions for summary judgment. Employing the' rational-basis test, the court found the ordinance rationally related to the city’s goal of easing the rising costs of garbage collection and countering the depletion of landfill availability. The court stated, “[T]he distinctions drawn in the ordinance are rational and establish reasonable means of furthering legitimate government ends.” This appeal challenges that ruling. The cross-motions for summary judgment establish that most of the material facts of this case are undisputed. Section 321.02 of the Berea Codified Ordinances creates three classifications for the collection of refuse: (1) one-, two-, three-, and four-family residential structures maintained as single-family residences not exceeding four units, including townhouses; (2) multifamily residential structures maintained as apartment houses, motels, hotels, and boarding houses in excess of four residential units; and (3) commercial structures maintained for the carrying on of commerce of any kind, either wholesale or retail. The ordinances require trash collection according to these classifications. Section 321.04 of the Berea Codified Ordinances states: “(a) Low-Density Residential, and Condominium Units: The City will provide refuse pickup service for one, two [sic] three and four-family residences and for multi-family condominium units * * *. “(b) Medium to High Density Residential: The city will not provide for refuse collection from medium to high density residences. These include all residential structures having more than four dwelling units, except multi-family condominium units.” Affidavits submitted by the mayor and the city safety service director show that the city had concerns about its solid waste disposal, so in 1988 the mayor appointed a citizen committee to address these concerns. The committee reported that landfill costs would continue to increase and recommend that the city take steps to decrease the amount of waste it hauled to the landfill. The committee primarily recommended that the city establish a recycling program, and devoted roughly half of its report to recommendations to the mayor on how best to implement the program. The committee also stated, “Terminating the free hauling of commercial wastes by the City of Berea” would be one method to reduce the amount of waste hauled. The safety service director stated that there were twenty-one multifamily apartment buildings containing more than four dwelling units in the city; that *659 these twenty-one multifamily apartment buildings contained nine hundred ninety-four units; and that for 1996, it would have cost the city an additional $102,630 to provide garbage collection to these buildings. Moreover, the safety service director stated that were the city required to provide garbage collection to these twenty-one multifamily apartment buildings, the city would need to purchase additional equipment at a cost of $188,500. Plaintiffs alleged that as of April 1997, they had incurred a total of $10,198.68 in private garbage-collection fees, and were currently paying $158.42 monthly in collection fees. I The first assignment of error complains that Berea Codified Ordinance No. 90-117 violates plaintiffs’ right to equal protection under the law because it makes an arbitrary distinction between multifamily apartment buildings with more than four units and condominium units that have more than four units and is not rationally related to the legitimate governmental objectives. Defendant raises an equal protection argument under both the United States Constitution and the Ohio Constitution. The Fourteenth Amendment to the United States Constitution provides, “No State shall * * * deny to any person within its jurisdiction the equal protection of the laws.” Section 2, Article I of the Ohio Constitution provides: “All political power is inherent in the people. Government is instituted for their equal protection and benefit * * *.” The Supreme Court has held that these two provisions are functionally equivalent. Am. Assn, of Univ. Professors, Cent. State Univ. Chapter v. Cent. State Univ. (1998), 83 Ohio St.3d 229, 233, 699 N.E.2d 463, reversed on other grounds, (1999) 526 U.S. 124, 119 S.Ct. 1162, 143 L.Ed.2d 227; State v. Buckley (1968), 16 Ohio St.2d 128, 45 O.O.2d 469, 243 N.E.2d 66. The standard of appellate review for equal protection arguments depends on the nature of the rights allegedly violated by the government. It is only when classifications are made on suspect classes of persons or place burdens upon the exercise of fundamental rights that courts depart from traditional equal protection principles. State v. Thompkins (1996), 75 Ohio St.3d 558, 561, 664 N.E.2d 926, 929; Cleburne, Tex. v. Cleburne Living Ctr. (1985), 473 U.S. 432, 440, 105 S.Ct. 3249, 3254-3255, 87 L.Ed.2d 313, 320-321. When, as here, the parties agree that the challenged legislation does not affect a fundamental right and does not create a suspect class, our review is limited to determining whether the distinctions drawn in the ordinance bear some rational relationship to a legitimate governmental objective. State ex rel. Vana v. Maple Hts. City Council (1990), 54 Ohio St.3d 91, 92, 561 N.E.2d 909, 910-911, citing Clements v. Fashing (1982), 457 *660 U.S. 957, 968, 102 S.Ct. 2836, 2843-2844, 73 L.Ed.2d 508, 515-516. The rational-basis test says that legislative distinctions are invalid only if they bear no relation to the state’s goals and no ground can be conceived to justify them. State v. Thompkins, 75 Ohio St.3d at 560, 664 N.E.2d at 928; Cincinnati City School Dist. Bd. of Edn. v. Walter (1979), 58 Ohio St.2d 368, 376, 12 O.O.3d 327, 331-332, 390 N.E.2d 813, 819; Denicola v. Providence Hosp. (1979), 57 Ohio St.2d 115, 119, 11 O.O.3d 290, 293, 387 N.E.2d 231, 234. Ohio cities are authorized to regulate local sanitation. Portsmouth v. McGraw (1986), 21 Ohio St.3d 117, 119, 21 OBR 422, 423-424, 488 N.E.2d 472, 473-474. Section 1 of the preamble to the 1990 amendments to Berea Codified Ordinances, Section 321 et seq., states that the “collection, disposal and handling [of residential garbage and rubbish] presents the potential for harm to our environment, and presents issues of serious concern to the City relative to cost and should be regulated by law.” This statement by the city suffices to demonstrate that the city’s desire to regulate the cost of garbage collection is a legitimate governmental objective. The sole question for us is whether the ordinance is rationally related to the governmental objective of containing garbage collection costs. “As a practical matter, the rational basis test requires that a legislative classification, albeit imperfect or discriminatory, will not be set aside if any set of facts reasonably may be conceived to justify it.” Evans v. Chapman (1986), 28 Ohio St.3d 132, 135, 28 OBR 228, 231, 502 N.E.2d 1012, 1015, citing McGowan v. Maryland (1961), 366 U.S. 420, 425-426, 81 S.Ct. 1101, 1104-1105, 6 L.Ed.2d 393, 398-399. The deference afforded legislative action is so broad that we end our review if the legislation is merely plausible, even if that plausibility arises from reasons that were not considered by the legislature. United States RR. Retirement Bd. v. Fritz (1980), 449 U.S. 166, 179, 101 S.Ct. 453, 461-462, 66 L.Ed.2d 368, 378-379. When economic or social welfare issues are concerned, even illogical and unscientific approximations by the legislature may suffice. Dandridge v. Williams (1970), 397 U.S. 471, 485, 90 S.Ct. 1153, 1161-1162, 25 L.Ed.2d 491, 501-502. The city offers four possible bases that justify the ordinance, and plaintiffs vigorously dispute them in a detailed argument, but the extremely broad standard of review under the rational-basis test does not require us to examine all of the reasons and arguments to determine their validity. We find that the city’s desire to cut the costs of garbage collection is a sufficient basis for distinguishing between apartments with more than four units. See Beauclerc Lakes Condominium Assn. v. Jacksonville (C.A.11, 1997), 115 F.3d 934. We accept as rational the city’s position that apartments with more than four units are commercial enterprises, even more so than apartments with four or fewer units. The city’s unrebutted evidence showed significant cost savings from the ordinance, and its *661 claim that the economies of scale for larger apartments gives them greater bargaining power to negotiate favorable garbage collection fees through private trash haulers is plausible. The city’s decision to draw the line of demarcation at apartments with more than four units is not wholly arbitrary, for distinctions of some kind must be drawn in statutes or ordinances. In McGowan v. Maryland (1961), 366 U.S. 420, 425, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393, 399, the Supreme Court stated, “State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality.” In Beauclerc Lakes Condominium Assn., 115 F.3d at 935-936, the court stated: “A government is not required to provide sanitation service to all or none; the Equal Protection Clause does not always preclude a legislature from treating some of its citizens differently from others. A government’s line-drawing need not be accomplished with mathematical precision — rough accommodations are tolerated even if some equality results.” (Citation omitted.) Plaintiffs complain that the city’s decision to exclude condominiums, regardless of the number of units, from the ordinance is wholly ■ arbitrary. Although the ordinance does not give the city’s reasons for doing so, it could be surmised that larger apartment buildings have a more commercial aspect than condominiums. A condominium is a form of cooperative ownership whereby each unit owner possesses an interest in the common areas of the condominium complex. See Belvedere Condominium Unit Owners’ Assn. v. R.E. Roark Cos., Inc. (1993), 67 Ohio St.3d 274, 279, 617 N.E.2d 1075, 1079-1080, citing Blackburn & Melia, Ohio Condominium Law Reform: A Comparative Critique (1978), 29 Case W.Res.L.Rev. 145, 147-149. While there are economic reasons why condominium owners would choose to band together as a cooperative unit, those reasons are not generally profit-oriented. In contrast, the landlord of an apartment building is, like other commercial entities excluded by the ordinance, in business to make money. As previously noted, the economies of scale for larger apartment buildings may help offset some of the cost associated with arranging and paying for private garbage collection. This is a rational reason for distinguishing between condominiums and apartments with more than four units. Plaintiffs cite Royal Am. Corp. v. Euclid (Aug. 21, 1975), Cuyahoga App. No. 34018, unrepórted, as support for their argument that the ordinance bears no rational relationship to a legitimate governmental interest. In Royal Am., we considered a very similar ordinance adopted by the city of Euclid, which provided, “The City will not collect any solid waste materials from (1) any apartment or condominium structures or (2) any commercial structures in the City of Euclid.” We invalidated the ordinance as being so arbitrary as to offend equal protection: *662 “Euclid Ordinance 49-1974 places apartments in one category and single-family and two-family dwellings in another. The classification is based upon the nature of the buildings involved, the volume of garbage produced in each, and the cost of collection of such garbage. The classification does not take cognizance of the fact that people in apartments and people in single- or two-family dwellings produce the same type of refuse. Citizens living in both types of residences require the removal of their garbage and rubbish on a regular basis for health and safety reasons. There is no rational basis for the municipal decision not to collect garbage from inhabitants of apartments on the one hand and to collect it from inhabitants of residential dwellings on the other. Thus, Ordinance 49-1974 contravenes the principle of equal protection.” (Citation omitted.) Id., at 6. The equal protection argument in Royal Am. has no precedential value because the court’s discussion is dicta. In the first assignment of error considered by the Royal Am. court, it sustained an argument that the trial court erred by failing to draft findings of fact and conclusions of law as requested by the appellants. The legal effect of the trial court’s failure to issue findings of fact and conclusions of law pursuant to Civ.R. 52 was to toll the time for filing a notice of appeal. In Walker v. Doup (1988), 36 Ohio St.3d 229, 522 N.E.2d 1072, the syllabus states, “When a timely motion for findings of fact and conclusions of law has been filed in accordance with Civ.R. 52, the time period for filing a notice of appeal does not commence to run until the trial court files its findings of fact and conclusions of law.” See, also, Caudill v. Caudill (1991), 71 Ohio App.3d 564, 594 N.E.2d 1096. Admittedly, the Supreme Court did not issue the Walker decision until years after our decision in Royal Am.; nevertheless, the Royal Am. court’s failure to issue findings of fact and conclusions of law was jurisdictional — and anything the court stated relating to the constitutionality of Euclid ordinance was pure dicta. Since there is no material issue of fact present, we find as a matter of law that an economic basis exists for the city’s decision to cease garbage collection for apartment units with more than four units. We overrule the first assignment of error. II The second assignment of error complains that the court erred by failing to strike parts of the affidavits of the mayor and the safety service director on grounds that certain matters averred to in the affidavits were not made on personal knowledge and would not have been admissible at trial. Plaintiffs make the following complaints: (1) the service safety director could not competently testify to the reasons underlying the city council’s determination that a distinction exists between residential and commercial use, (2) the service safety director could not competently testify to the reasons why the city council *663 adopted the ordinance, and (3) the mayor could not state in an affidavit that the ordinance related to the city’s legitimate interests in promoting home ownership, cost containment, and reduction of landfill space. Even were we to agree with plaintiffs and assume for the sake of argument that none of the three statements were made upon personal knowledge, striking those statements would not require us to reverse the court’s decision. The standard of review we articulated for the rational-basis test is so broad that we must uphold the legislation even if we find plausible reasons that were not considered by city council. United States RR. Retirement Bd. v. Fritz, supra. In other words, we could independently find a difference between apartments and condominiums, and uphold the legislation on that ground, even if the city council did not consider that as a valid reason in the first place. Hence, the affidavits would have no effect on our decision, and any error in failing to strike the affidavits would have been harmless beyond a reasonable doubt. In any event, even if were we to consider the merits of this argument, we would find all the statements contained in these affidavits were made with personal knowledge. Civ.R. 56(E) states, “Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” Statements contained in affidavits must be based on personal knowledge and cannot be legal conclusions. State v. Licsak (1974), 41 Ohio App.2d 165, 169, 70 O.O.2d 325, 327-328, 324 N.E.2d 589, 593. “ ‘Personal knowledge’ is defined as: ‘[knowledge of the truth in regard to a particular fact or allegation, which is original, and does not depend on information or hearsay.’ ” Brannon v. Rinzler (1991), 77 Ohio App.3d 749, 756, 603 N.E.2d 1049, 1054, quoting Black’s Law Dictionary (6 Ed.1990) 873. Beginning first with the service safety director’s affidavit, he stated that the city council passed the ordinance based upon its determination that “a distinction exists between a residential and a commercial use.” We find that this statement was made upon personal knowledge. Plaintiffs argue that the service safety director could not testify to the motivations of city council — only city council could do so. Yet the record suggests that the service safety director attended city council meetings so he could testify to his recollection of what occurred at those meetings. The safety service director could likewise state his recollection of why city council passed the ordinance because his presence at city council meetings gave him some exposure to the legislative proceedings. As to the mayor’s statement that the ordinance was intended to promote home ownership, among other things, we find that this statement was made on personal knowledge. The mayor formed the citizens committee to examine *664 garbage collection within the city and advise on measures that could be employed to contain costs. As the mayor, he is entitled to suggest legislation, as he clearly did in this case. We do agree that the mayor’s statement that the ordinance “relates to the City of Berea’s legitimate interests in promoting home ownership” is more of a legal conclusion than a statement of fact, but other statements in the mayor’s affidavit, made with apparent personal knowledge, sufficiently demonstrate the city’s motivations in passing the ordinance. The second assignment of error is overruled. Judgment affirmed. Michael J. Corrigan, J., concurs. Timothy E. McMonagle, P.J., dissents.