Village of Sheffield v. Rowland

Pfeifer, J. In this case, we must determine whether Sections 660.19 and 1155.05 of the Sheffield Village Codified Ordinances are in conflict with R.C. Chapter 3714. For the reasons that follow, we determine that they are. Section 3, Article XVIII of the Ohio Constitution states that “[mjunicipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.” The enactment of zoning ordinances is an exercise of the police power, not an exercise of local self-government. Garcia v. Siffrin Residential Assn. (1980), 63 Ohio St.2d 259, 17 O.O.3d 167, 407 N.E.2d 1369, paragraph two of the syllabus. See Village of Euclid v. Ambler Realty Co. (1926), 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303. Zoning ordinances “are subject to the constitutional provision that they not be ‘in conflict with general law.’ ” Garcia at 270, 17 O.O.3d at 174, 407 N.E.2d at 1377, [11] citing State ex rel. Klapp v. Dayton Power & Light Co. (1967), 10 Ohio St.2d 14, 39 O.O.2d 9, 225 N.E.2d 230. See Fondessy Enterprises, Inc. v. Oregon (1986), 23 Ohio St.3d 213, 23 OBR 372, 492 N.E.2d 797, paragraph one of the syllabus. The test to determine when a conflict exists between a municipal ordinance and a general law of the state is “whether the ordinance permits or licenses that which the statute forbids and prohibits, and vice versa.” Struthers v. Sokol (1923), 108 Ohio St. 263, 140 N.E. 519, paragraph two of the syllabus; Fondessy Enterprises, paragraph two of the syllabus. We must first determine whether R.C. Chapter 3714 is a general law. If it is not, the test from Struthers has no application. General laws are defined as those “operating uniformly throughout the state * * *, which prescribe a rule of conduct upon citizens generally, and which operate with general uniform application throughout the state under the same circumstances and conditions.” Garcia, 63 Ohio St.2d at 271, 17 O.O.3d at 174, 407 N.E.2d at 1377-1378, citing Leis v. Cleveland Ry. Co. (1920), 101 Ohio St. 162, 128 N.E. 73. R.C. Chapter 3714 governs the licensing and regulation of construction and demolition debris facilities throughout the state of Ohio. It appears beyond dispute that R.C. Chapter 3714 is a general law and, as neither party contends otherwise, we so hold. We must now determine whether R.C. Chapter 3714 and the Sheffield Village Codified Ordinances are in conflict. No construction and demolition debris facility may be established unless the operator of the proposed facility has obtained a license from the board of health of the health district in which the facility will be located or the Director of Environmental Protection. R.C. 3714.06(A). The license is site-specific and there are limitations as to where demolition and construction debris facilities can be licensed. R.C. 3714.03. The license application must include accompanying plans, specifications, and information regarding the facility and its method of operation. R.C. 3714.06(A). R.C. 3714.06(A) states, “[i]f the board of health or the director, as appropriate, finds that the proposed facility * * * complies with those rules and standards, the board or director shall issue a license for the facility.” BFI’s proposed construction and demolition debris facility is located in an Industrial District in the village of Sheffield. Although the rules and standards of R.C. Chapter 3714 have been met, Sheffield argues that the facility is prohibited by the Sheffield Village Codified Ordinances Sections 660.19, 1155.05(o), 1155.05(hh), and 1155.05(nn). The ordinances read as follows: “660.19 EXCAVATIONS “(a) No person shall remove or excavate any soil, sand, gravel or other deposit from land so as to create a pit, gully, ditch, depression or other change to the topography of lands in the Village * * [12] “1155.05 INDUSTRIAL DISTRICTS “In an Industrial District, land may be used and buildings or structures may be erected, altered or used for any purpose except the following (( * * * “(o) Garbage, offal, dead animals or refuse reduction or storage. u * * * “(hh) Storage, sorting or baling of junk, scrap metal, paper or rags. • ii * * * “(nn) In general, those uses which may be noxious or offensive by reason of the emission of odor, dust, smoke, vibration or noise.” Upon compliance with the requirements of R.C. Chapter 3714 and the issuance of a license, the operator of a proposed construction and demolition debris facility is authorized to establish such a facility. R.C. 3714.06(A). However, it is readily apparent that the Sheffield Village Codified Ordinances prohibit such a facility. Thus, the ordinances prohibit what the statute permits and are therefore in conflict with R.C. Chapter 3714. Sheffield argues that there is no conflict, citing Fondessy, supra. In Fondessy, this court upheld a municipal ordinance that imposed a permit fee on all hazardous waste landfills that are located within the city, and required that operators of the facilities keep complete and accurate records. The two additional requirements imposed by the ordinance did not “alter, impair, or limit the operation of a state-licensed hazardous waste facility” and were held valid. Id. at 217, 23 OBR at 375, 492 N.E.2d at 801. In the case at bar, the Sheffield ordinances do more than merely impair or limit the operation of a state-authorized facility: they completely prohibit the facility. Nothing in this decision should be construed to suggest that Sheffield cannot restrict state-authorized facilities to certain districts with appropriate zoning. See Fondessy. Appellant’s argument that R.C. Chapter 3714 and the Sheffield ordinances are not about the same subject matter and therefore present dual conditions for the construction and operation of a construction and demolition debris facility is likewise not persuasive. See Set Products, Inc. v. Bainbridge Twp. Bd. of Zoning Appeals (1987), 31 Ohio St.3d 260, 31 OBR 463, 510 N.E.2d 373. In Set Products, the statutory scheme in question, R.C. Chapter 1514, contained a specific provision stating that the applicant must ensure that future land use will not conflict with local zoning plans. Id. at 265, 31 OBR at 467, 510 N.E.2d at 378. R.C. Chapter 3714 has no such provision. While dual conditions have been recognized without an explicit statutory provision prohibiting conflict, they are valid only when the municipal ordinances do not alter, impair, or limit the operation of the state-authorized facility. Fondessy. [13] We conclude that Sections 660.19, 1155.05(o), 1155.05(hh), and 1155.05(nn) of the Sheffield Village Codified Ordinances conflict with R.C. Chapter 3714. When, as here, “there is a direct conflict, the state regulation prevails.” Canton v. Whitman (1975), 44 Ohio St.2d 62, 66, 73 O.O.2d. 285, 288, 337 N.E.2d 766, 770. We hold that R.C. Chapter 3714 preempts Sheffield Village Codified Ordinances Sections 660.19, 1155.05(o), 1155.05(hh), and 1155.05(nn). Accordingly, the judgment of the court of appeals is affirmed. Judgment affirmed. Moyer, C.J., Douglas, Resnick, F.E. Sweeney- and Lundberg Stratton, JJ., concur. Cook, J., dissents.