Opinion
No. 41277
Decided July 3, 1968.
Township trustees — Provision for sanitary dumps — Section 505.12, Revised Code — Resolution designating "disposal area" and providing for operation — Zoning measure — Validity — Subject to recision — Due process.
APPEAL from the Court of Appeals for Geauga County.
In 1961, appellant herein, Newbury Disposal, Inc., acquired an option on approximately 60 acres of land zoned residential in Newbury Township. Subsequently, appellant approached the Township Trustees of Newbury Township with a proposal to privately operate a landfill disposal area on the property. The response of the township trustees to this idea was favorable, and on October 16, 1961, a resolution was passed designating the area as "the Newbury Township disposal area," and providing that Newbury Township residents were to receive free dumping privileges, upon proper proof of residency, and further that the operation of the area was to conform strictly with those rules and regulations set forth by the county health department pertaining to the operation of a disposal area.
Appellant thereupon exercised its option on the property, purchased the necessary equipment for the operation of a dump and entered into landfill disposal activities upon the property.
At all times during which appellant conducted its operations it possessed a valid health permit from the Geauga County Board of Health.
On January 3, 1966, the Newbury Township Trustees passed a resolution which rescinded the resolution of October 16, 1961, and ordered the designated landfill disposal area closed and the property used in the future for residential purposes only.
Appellant in this action seeks a declaration of its rights as to the property involved and injunctive relief from the enforcement of the 1966 resolution.
The Common Pleas Court of Geauga County found the 1961 resolution to be ultra vires with respect to the powers of the township trustees and therefore a nullity. Upon appeal on questions of law and fact, the Court of Appeals rendered the same judgment.
The cause is here pursuant to the allowance of a motion to certify the record.
Messrs. Thrasher, Dinsmore Dolan and Mr. Lawrence J. Dolan, for appellant.
Messrs. Bostwick Bostwick and Mr. H.K. Bostwick, for appellees.
Section 505.12, Revised Code, provides in part:
"The board of township trustees may secure, maintain, and provide for sanitary dumps, if in its opinion, such dumps are necessary, and for such purpose the board may purchase, rent, lease, or otherwise acquire such land as is suitable for dumping purposes. * * *"
The Newbury Township Zoning Resolution of 1961, which was given judicial notice by the court below, provides in Section V, Subsection 7 that:
"The following uses shall be deemed to constitute a nuisance and shall not be permitted in any residential, business or industrial district.
"7. Dumping, storing, burying, reducing, disposing of, or burning garbage, refuse, scrap metal, rubbish, offal, or dead animals, except such as result from the normal use of premises, unless such dumping is done at a place provided by the township trustees for such specific purpose." (Emphasis added.)
An examination of the 1961 resolution passed by the township trustees leads us to the conclusion that it is a zoning measure and nothing more. It designates an area, previously restricted solely to residential use, as a "township disposal area," and resolves that free use for dumping purposes shall be afforded township residents and further that the operation of the area as a dump shall conform strictly with rules and regulations promulgated by the county health department. It refers to Section V, Subsection 7 of the existing township zoning resolution as permitting its passage, but it does not provide for the operation of a dump, contract for the operation of a dump, or grant a franchise to appellant to operate a dump. It simply designates a particular area as a dumping area.
We are of the opinion that it is not such a resolution as is contemplated by the provisions of Section 505.12, Revised Code, and therefore cannot have any validity under the terms of that statute.
Is it, then, a resolution permissible under Section V, Subsection 7, of the Newbury Township Zoning Resolution of 1961? We think that it is, but we also believe that it is subject to recision upon the occurrence of either or both of two events: (a) Denial of free dumping privileges to township residents by the owners of the property, or (b) failure to strictly comply with county health department rules and regulations by the operators of the disposal area. Inasmuch as it has been stipulated by appellant owner (and operator until January 8, 1966) that there were several violations of health department regulations, we believe that the 1966 recision by resolution was within the power of the township trustees.
Appellant has argued a denial of due process, claiming forfeiture of property rights without notice or hearing, but the 1966 resolution provided for 30 days notice to appellant by certified mail before that resolution became effective, and, in view of the stipulated violations of County Health Department rules and regulations, it is clear that appellant could not have been prejudiced by lack of a hearing before the board of township trustees.
Therefore, we affirm the judgment of the court below.
Judgment affirmed.
ZIMMERMAN, acting C.J., TROOP, MATTHIAS, O'NEILL, HERBERT, SCHNEIDER and BROWN, JJ., concur.
TROOP, J., of the Tenth Appellate District, sitting for TAFT, C.J.