Restrictions keeping your company from siting and building the solid waste facility it desires? Fed up with local land use officials think their job security is spelled “N-O”? When your project – arguably, an essential service to the public – looks destined for denial, it’s time to be inventive.

Take the case of Rumpke, a prominent 80-year-old solid waste company based in Colerain Township, Ohio, near Cincinnati. In 2006, hoping to expand its existing landfill in the township, Rumpke applied to change the zoning of an adjacent 350-acre parcel it owned. The local zoning commission took a dim view of the proposal, and urged the township trustees to deny the rezoning. Following public hearings, the township turned down Rumpke’s application.

Undaunted, Rumpke filed suit against the township and its trustees, alleging an unconstitutional taking of its property and asking that the company be declared a “public utility” under state law, and thus “not subject to [the] township’s zoning authority.” After both sides filed motions for summary judgment, the trial judge ruled that Rumpke qualifies as a public utility and is exempt from the township land use laws. On appeal, a three judge panel upheld the lower court ruling.

“Ohio law provides that townships have no power under the zoning laws to regulate the location, erection, or construction of any buildings or structures of any public utility,” the opinion said. “[P]ublic utilities will be able to construct the facilities required to serve the public interest across the state without undue interference from township zoning resolutions.”

To determine whether Rumpke was a public utility, the appeals court considered factors relating to “public service” and “public concern” – whether the entity provides an essential service to the general public, which has a legal right to demand or receive this service; whether it provides service to the public indiscriminately and reasonably; whether it cannot unreasonably discontinue the service; whether the entity conducts its operations as to be a matter of public concern.

It found that Rumpke is obliged to provide residents and businesses in Cincinnati with waste disposal service, which it deemed “an essential [sic] public necessity” and “has pledged to [county and state agencies] that it will remain open and will accept any qualifying solid waste so long as it has the capacity to do so.”

But the appeals court decision did not end the matter. At the behest of the township, the state supreme court accepted the case for review, but came to the opposite conclusion: “A privately owned sanitary landfill cannot be a ... 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,” the justices held.

Rumpke’s landfill operations are primarily overseen by Ohio EPA and the local county solid waste district, which share a concern about “adverse environmental effects related to the collection and disposal of solid waste,” the high court noted. “[T]he public concern with environmental regulation is ... not the same public concern that is relevant when determining whether an entity is a public utility.”

The landfill is neither a public service nor a public concern, the court concluded. “Rumpke determines to whom it provides its service and how or when that service is provided. * * * Rumpke could lawfully close its doors to the public. Furthermore, as a private company, Rumpke has the ability to set its own rates,” the justices said. Despite its essential service, no government body regulates [its] rates or methods,” the opinion continued. “Rumpke may treat discriminately and arbitrarily the portion of the public to whom it provides its services.”

[Rumpke Sanitary Landfill, Inc. v. Colerain Twp., Slip Opinion No. 2012-Ohio- 3914, Sept. 5, 2012.]

Barry Shanoff is a Rockville, Md., attorney and general counsel of the Solid Waste Association of North America.

The legal editor welcomes comments from readers. Contact Barry Shanoff via e-mail: [email protected].