The Ohio Supreme Court has determined that the operator of a private sanitary landfill cannot be exempt from zoning laws on the ground that the business constitutes a public utility. Rumpke Sanitary Landfill, Inc. v. Colerain Twp., No. 12-3914 (Ohio 9/5/2012).
Rumpke Sanitary Landfill, Inc. (Rumpke) owns and operates a sanitary landfill in Colerain Township, Ohio. Rumpke applied to the local zoning board for permission to expand its operation onto adjacent land that Rumpke already owned in part. The zoning board declined to allow the expansion. Rumpke sued on a variety of bases, including unconstitutional taking of property, and asserted that because it was the primary sanitary landfill in the area, used by many disposal companies, it constituted a public utility and, as such, was exempt from zoning.
The Ohio Supreme Court noted that Ohio law exempts public utilities from zoning requirements and that private entities can constitute public utilities for this purpose. Generally, determining whether a private entity constitutes a public utility under Ohio law, said the court, requires consideration of both public service and public concern issues related to the enterprise. Although many members of the public in fact had access to the landfill, the court found that the landfill retained the right to refuse to accept waste from any person and accordingly found that this prong of the test was not met. Absence of rate regulation was also important to the court’s analysis.
In short, the court held 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.”