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Rumpke Sanitary Landfill, Inc., et al. v. Colerain Township, Ohio, et al., Case no. 2011-0181
1st District Court of Appeals (Hamilton County)

Board of Education of the City School District of the City of Cincinnati v. Roger T. Conners and Deborah Conners, Case no. 2011-0673
1st District Court of Appeals (Hamilton County)

Grace Burlingame v. Estate of Dale Burlingame, et al. and James R. Coombs, II, et al., Case no. 2011-0742
5th District Court of Appeals (Stark County)

In the Matter of the Application of Duke Energy Ohio, Inc. to Establish and Adjust the Initial Level of its Distribution Reliability Rider, Case no. 2011-0767
Appeal from Order of Public Utilities Commission of Ohio

Toledo Bar Association v. Beauregard Maximillion Harvey, Case no. 2011-1760
Lucas County


Is Private Sanitary Landfill a 'Public Utility' Exempt from Township's Zoning Authority?

Rumpke Sanitary Landfill, Inc., et al. v. Colerain Township, Ohio, et al., Case no. 2011-0181
1st District Court of Appeals (Hamilton County)

ISSUE: Does a privately owned sanitary landfill that disposes of a large percentage of the solid waste generated by residents and businesses in a county qualify as a “public utility” that is exempt from the zoning authority of the township in which it is located under the provisions of R.C. 519.211?

BACKGROUND: In 2006, Rumpke Sanitary Landfill Inc., which owns and operates a 509-acre sanitary landfill in Colerain Township near Cincinnati, sought zoning approval from the township trustees to expand the existing landfill  by an additional 350 acres. The township denied the requested zoning.

Rumpke filed suit in the Hamilton County Court of Common Pleas. Among other relief sought in its complaint, Rumpke asked the court to issue a declaratory judgment that its landfill is a “public utility,” and therefore is not subject to the township’s zoning authority under  R.C. 519.211, a state law that exempts property owned by public utilities from local zoning regulations. The trial court granted summary judgment in favor of Rumpke, in effect authorizing the company to go forward with the landfill expansion without the approval of the township. The township appealed, asserting that the landfill did not meet the legal requirements of a public utility. The 1st District Court of Appeals affirmed the ruling of the trial court.

Colerain Township sought and was granted Supreme Court review of the 1st District’s decision.

Attorneys for the township argue that in finding that the Rumpke landfill qualifies as a public utility, the lower courts did not follow the Supreme Court of Ohio’s 1992 decision in A & B Refuse Disposers Inc. v. Bd. of Ravenna Township Trustees.  In A & B Refuse, they assert,  this Court held that a landfill does not qualify as a public utility unless: 1) it provides an essential good or service to the general public; 2) the public has an enforceable right to demand and receive its services, and those services cannot be withdrawn at the sole discretion of the operator; 3) the landfill provides services to the public “indiscriminately and reasonably,” and 5) the landfill is subject to governmental regulations that protect members of the public from disparate treatment.

The township acknowledges that Rumpke’s landfill provides an essential service by disposing of approximately 80 percent of the solid waste generated in Hamilton County, and currently has a policy of accepting refuse from any party for disposal. The township argues, however, that Rumpke does not meet the other A & B Refuse criteria because it has no enforceable duty to continue serving all customers, is not regulated by the state Public Utilities Commission or subject to any public rate-setting process or customer service requirements, and discriminates widely between the per-ton “tipping” fee it charges for waste delivered by Rumpke’s own trash pick-up and hauling subsidiaries and much higher rates charged for waste delivered by surrounding municipalities in their own trucks. They assert that, if affirmed, the 1st District’s decision in this case will leave Colerain and other Ohio townships with no way to prevent private landfill operators within their borders from unlimited expansion into adjacent land, effectively eliminating a township’s zoning powers to preserve the nature of their communities and attract other, more desirable types of development.

Attorneys for Rumpke urge the Court to affirm the decisions of the lower courts that the company’s Colerain Township facility qualifies as a common law public utility not subject to local zoning. They cite the 1st District’s findings that the landfill meets the criteria set forth in A & B Refuse because it provides essential waste-disposal services for the vast majority of Southwest Ohio residents, is subject to extensive regulation of its operations by the Ohio Environmental Protection Agency, Hamilton County Solid Waste Management District and local health authorities, charges rates that are demonstrably “reasonable” because they are competitive with other landfills in the surrounding area, and has filed sworn affidavits with the Solid Waste Management District promising to provide continuing service to all members of the public as long as it has the capacity to do so. 

NOTE:  Amicus curiae (friend of the court) briefs supporting the position of Colerain Township have been submitted by the Ohio Township Association, groups of Ohio townships, county commissioners and local solid waste management districts, and by the State of Ohio.

Contacts
Joseph L. Trauth Jr., 513.579.6515, for Rumpke Sanitary Landfill Inc.

Richard C. Brahm, 614.228.2030, for the Colerain Township Board of Trustees.

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Is There a 'Public Policy' Favoring Charter Schools That Bars District from Enforcing Deed Restriction in Sale of Building?

Where Restriction Bars Future Use of Building as a School

Board of Education of the City School District of the City of Cincinnati v. Roger T. Conners and Deborah Conners, Case no. 2011-0673
1st District Court of Appeals (Hamilton County)

ISSUE:  When the purchase contract between a public school district and a private buyer of a vacant school building includes a deed restriction stating that the buyer agrees to use the building “for commercial development ... [and] not to use the facility for school purposes now or at any time in the future,” if the buyer later attempts to lease or sell the property for use as a charter school, is the school district barred from enforcing the deed restriction because it is contrary to a public policy of the state favoring development of charter schools?

BACKGROUND: In June 2009, Cincinnati City Schools held a public auction at which is sought bids on nine vacant school buildings that were no longer in use. The only bidders on one of those properties, the former Roosevelt School, were Roger and Deborah Conners, who purchased the building for $30,000. The sale contract included a deed restriction that barred the property from being used for school purposes at any time in the future.

Three months after purchasing the building, the Connerses sought approval from local zoning authorities for the building to be used to house a new charter school.  In January 2010, the school district was notified by an operator of charter schools that it would be opening a school at that location.

The school district sued the Connerses in the Hamilton County Court of Common Pleas, seeking a declaratory judgment enforcing the deed restriction in the purchase contract and an injunction barring any current or future use of the property as a school.

The Connerses sought and were granted judgment on the pleadings dismissing the school district’s complaint. The trial court based its ruling on a finding that the deed restriction in the purchase contract was void and unenforceable because it was contrary to a clear public policy that favored the use of vacant public school buildings to house charter schools. The school district appealed that ruling.  On review, the 1st District Court of Appeals affirmed the action of the trial court, holding that the deed restriction was contrary to the public policy embodied in R.C. 3317.41(G), which at the time of the 2009 property sale required public school districts to give charter school operators the first option to purchase vacant school buildings that were “suitable for use as classroom space.”

The school district sought and was granted Supreme Court review of the 1st District’s decision.

Attorneys for the school district argue that in enacting R.C. 3313.41(G) the legislature did not set forth a broad “public policy” favoring the prerogatives of charter schools over the contract rights of public school districts, but merely imposed a limited requirement that if and when a public school property being disposed of is suitable for use as classroom space, charter schools must be given the first chance to bid for that property.  In this case, they assert, before they offered the property for public sale and included a deed restriction in the terms of that sale, Cincinnati City Schools used  objective assessment criteria established by the Ohio School Facilities Commission to determine that in its current condition the Roosevelt School building was not suitable for use as classroom space, and therefore sale of the property was not subject to the requirements of R.C. 3313.41(G).   

They point to state and federal court decisions holding that the terms of a contract entered into between willing parties, including school districts, are presumed to be valid and enforceable. They argue that a court has authority to invalidate a term or condition of a private contract on “public policy” grounds only in cases where there is a clear and unambiguous conflict between a contract term and a specific statutory provision or principle of law such as the preservation of a constitutional right or the protection of public health and safety. They urge the Court to find that there is no such clear conflict in this case, and reverse the rulings of the lower courts.

Attorneys for the Connerses urge the Court to affirm the holdings of the trial and appellate courts that the deed restriction imposed by CPS on the sale of its property was clearly contrary to the legislative intent underlying R.C. 3317.41, which they say is to require that unused public school buildings be made available for use by charter schools. In this case, they say, the fact that the Connerses were able to make affordable repairs and improvements to the former Roosevelt School site that allowed it to meet local building codes and be reopened as a charter school within a few months shows that the property was “suitable for use as classroom space,” at the time of the 2009 sale, and therefore the deed restriction prohibiting its future use as a school was contrary to public policy.

Contacts
Douglas R. Dennis, 513.651.6727, for the Cincinnati City Schools Board of Education.

Maurice A. Thompson, 614.340.9817, for Roger and Deborah Conners.

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Is Violation of City Policy Relevant to Whether Public Employee's Conduct Was Legally 'Willful' or 'Wanton?'

In Determining Whether City Is Immune from Liability for Accident Damages

Grace Burlingame v. Estate of Dale Burlingame, et al. and James R. Coombs, II, et al., Case no. 2011-0742
5th District Court of Appeals (Stark County)

ISSUE:  Is the fact that a fire truck driver was not following a city policy at the time he was involved in a collision with another vehicle relevant to a court’s determination of whether the driver was acting in a “willful” or “wanton” manner, and therefore whether the city is or is not immune under R.C. Chapter 2744 from liability for accident damages suffered by another party?

BACKGROUND: Ohio’s political subdivision immunity statute, R.C. Chapter 2744, provides that a city is generally immune from civil liability for damages suffered by third parties as a result of the actions of  city agencies or employees in the performance of their governmental duties. However, the law sets forth specific exceptions to this general immunity. One of those exceptions states that immunity does not apply if the conduct that caused injury was “wanton” or “reckless.”

In this case, while Canton firefighter James Coombs was driving a city fire truck on an emergency run, the truck was involved in a traffic accident that caused the death of another driver, Dale Burlingame, and injured Burlingame’s wife, Grace, who was a passenger in his vehicle. Grace Burlingame and her husband’s estate filed suit against the city seeking damages for the wrongful death of Mr. Burlingame and for Mrs. Burlingame’s injuries.

Canton moved for summary judgment, arguing that because the accident took place while Coombs was performing his duties as a firefighter, the city was immune from civil liability under  R.C. Chapter 2744. The Burlingames opposed that motion, arguing that the exception to political subdivision immunity for reckless conduct applied because Coombs had failed to stop for a red light, as required by Canton’s policy manual for operators of public safety vehicles, before proceeding into the intersection where the collision took place. The trial court granted summary judgment in favor of the city, holding that whether Coombs’ actions complied with a city policy was irrelevant to a determination of whether or not his failure to come to a full stop at the traffic light was legally “wanton,” which the court found it was not.

The Burlingames appealed the trial court’s ruling. On review, the 5th District Court of Appeals reversed the award of summary judgment and remanded the case to the trial court for further proceedings.  In its decision, the court of appeals held that Coombs’ failure to comply with a city policy could be considered by a jury along with other facts in determining whether, under the totality of the circumstances, his conduct was “wanton” and therefore was not covered by the immunity statute. 

Canton sought and was granted Supreme Court review of the 5th District’s decision.

Attorneys for the city assert that the 5th District’s ruling departs from prior court decisions holding that determinations of whether a public employee’s conduct in causing a traffic accident was “wanton” or “reckless” for purposes of immunity must be based on the objective facts of the crash itself such as the speed of the vehicles, light and road conditions, activation of flashing lights and sirens and visibility of approaching traffic; and should not be based on a subjective factor such as a local policy. 

They argue that adopting the 5th District’s standard would allow jurors in different jurisdictions to grant immunity for one accident but deny it for another, identical, accident, based on the sole distinction that the second city had a more restrictive emergency vehicle driving policy than the first. They contend that such a standard would “punish” jurisdictions that set strong safety rules, and could result in a “race to the bottom” in which cities feel compelled to weaken their employee safety policies in order to preserve their immunity from civil lawsuits.

Attorneys for the Burlingames respond that the exception to immunity for “willful,” “wanton,” or “reckless” conduct by a public employee is based on the mental state of the employee at the time of the conduct that caused injury. They cite court decisions holding that evidence showing that a defendant’s actions violated a state law or local ordinance, or a known safety rule of his employer, are highly relevant in determining whether a civil defendant acted with a reckless mental state. 

In this case, they point out, the 5th District did not hold that Coombs’ failure to follow his employer’s safety rules was sufficient by itself to show that his conduct was “wanton” or “reckless,”  but merely found that his failure to stop at a red light in violation of his employer’s safety rules, considered along with the other facts of the case, raised a material question about whether Coombs acted with reckless disregard for the danger in which he was placing other drivers, and that question was sufficient to defeat a motion for summary judgment and allow the plaintiffs to argue their case against immunity to a jury.

NOTE:  The Ohio Association for Justice has filed an amicus curiae (friend of the court) brief supporting the position of the Burlingames. The Ohio Municipal League has filed an amicus brief in support of the legal arguments advanced by Canton.

Contacts
Kevin R. L'Hommedieu, 330.438.4337, for the city of Canton and James Coombs.

Elizabeth Burick, 330.456.3200, for Grace Burlingame and estate of Joseph Burlingame.

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Did PUCO Act Unreasonably in Reducing Utility's Claims For Costs of Restoring Power After 2008 Wind Storm?

In the Matter of the Application of Duke Energy Ohio, Inc. to Establish and Adjust the Initial Level of its Distribution Reliability Rider, Case no. 2011-0767
Appeal from Order of Public Utilities Commission of Ohio

ISSUE:  Did the Public Utilities Commission of Ohio (PUCO) act unreasonably or contrary to law when it denied parts of an application by Duke Energy Ohio to recover through customer surcharges for the company’s claimed costs of restoring electricity in its service area in the aftermath of a September 2008 windstorm?

BACKGROUND: In September of 2008, the remnants of Hurricane Ike passed through Ohio causing widespread downing of trees and power lines that interrupted electrical service for several days in many areas of the state. Duke Energy of Ohio, which serves southern and southwestern Ohio, activated all of its own repair crews on a emergency basis, called in extra crews from Duke affiliates in nearby states and hired private contractors to assist in restoring service. The repair crews worked for nine days to restore service to Duke’s customers.

Duke subsequently sought PUCO approval of a special “rider” or add-on to its normal customer service rates to recover the extraordinary costs the company had incurred during the storm-related repair and restoration process. Duke submitted a breakdown of the additional expenses it claimed to have incurred in repairing storm damage. The commission conducted a hearing at which Duke presented evidence to show that each of the costs for which it sought recovery was reasonable and had been prudently incurred. Consumer groups and other interested parties presented evidence challenging some of the company’s claimed costs as excessive or not prudently incurred..

Following the hearing and additional briefing by the parties, the PUCO approved a rider that allowed Duke to recover for a significant  portion of its claimed costs, but disallowed or reduced the requested amounts of recovery in several categories based on the commission’s finding that those charges were not reasonable or not prudently incurred. Duke asked the commission to reconsider its ruling, but the commission declined to do so.

Duke has appealed to the Supreme Court, asking the Court to find that the PUCO acted unreasonably or contrary to law in denying or reducing the amounts of storm recovery costs the company was permitted to recover through customer surcharges. 

Attorneys for Duke Energy Ohio argue that the PUCO ignored or misunderstood documentation that the company provided during the commission’s hearing process to explain and justify its claimed costs for additional compensation of salaried employees and fringe benefit payments that were incurred as a result of the extra hours worked by Duke employees during the emergency period.  While they acknowledge that the Court must generally defer to the commission’s findings of fact in reviewing regulatory decisions, Duke argues that in this case the PUCO acted against the manifest weight of the evidence by relying almost exclusively on unsubstantiated estimates and unscientific alternative cost formulas suggested by a witness representing the state’s Office of Consumers Counsel.  Because it says the commission’s conclusions are not supported by the hard data in the hearing record, Duke asserts that those conclusions are contrary to law and therefore must be reversed on appeal.

Attorneys for the PUCO respond that the commission carefully considered conflicting testimony and evidence presented by Duke and consumer advocates during the hearing process, and came to reasoned findings that some of the alleged storm recovery costs for which Duke sought to charge its customers were excessive or redundant.  They assert that what Duke is really asking the Court to do is re-weigh the factual evidence considered by the commission, and improperly substitute the Court’s judgment for that of the commissioners.  They argue that this is contrary to the established body of case law that requires the Court to defer to the commission’s findings of fact, and to reverse PUCO rulings only where there is no credible evidence in the record to support the commission’s decision.

Contacts
Amy B. Spiller, 513.287.4359, for Duke Energy Ohio Inc.

Stephen A. Reilly, 614.644.8588, for the Public Utilities Commission of Ohio.

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Attorney Discipline

Toledo Bar Association v. Beauregard Maximillion Harvey, Case no. 2011-1760
Lucas County

The Board of Commissioners on Grievances & Discipline has recommended that the license of Toledo attorney Beauregard M. Harvey be suspended for one year, with six months of that term stayed on conditions, for violations of state attorney discipline rules in his handling of multiple personal bankruptcy cases and a civil lawsuit in Lucas County Municipal Court.

The board based its recommendation on findings that in the bankruptcy cases, on multiple occasions Harvey either failed to file with the court required forms that his clients had provided to him on a timely basis, or failed to alert clients who had not provided him with required forms that the deadline for filing those forms was about to expire. As a result of Harvey’s lack of diligent representation and/or his failure to adequately communicate with his clients, the clients’ bankruptcy petitions were dismissed and subsequently had to be refiled. 

In the civil case, the board found that Harvey failed to file an answer to a counterclaim asserted against his client by the opposing party, and later failed to appear at a scheduled court hearing on the counterclaim, resulting in a default judgment against his client.

Harvey has filed objections to some of the disciplinary board’s findings and its recommended sanction.  Specifically he asserts that the board failed to give sufficient weight to the mitigating factors that he voluntarily assumed the costs of refiling the petitions of his bankruptcy clients and covering the default judgment in the civil case, so that  none of his clients suffered any financial loss as a result of his errors. He also urges the Court to consider that he was experiencing stressful personal events including a divorce and the death of his mother during the time period when his violations were committed, and to reduce the severity of the sanction recommended by the board accordingly.

Contacts
Gordon R. Barry, 419.241.6285, for the Toledo Bar Association.

Beauregard M. Harvey, pro se, 419.720.0400.

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These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered by the Court during its deliberations.

Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.