Ohio Supreme Court Decides When a Local Board of Health Rules a License Application is not Complete, the Landfill Cannot Appeal that Decision
No matter how much we try to re-use, re-cycle, and conserve, landfills will be necessary for many years to come. However, there are many people who do not want a new solid waste or construction demolition and debris landfill built in their community. When a local board of health ruled that a license application to operate such a landfill was "incomplete" three separate times over a period of two years, the facility filed an appeal to the Environmental Review Appeals Commission ("ERAC").
ERAC held that because the board of health determined that the application was "incomplete" as opposed to denying the application, the facility's appeal was premature, and denied the facility relief. The facility sought review by the Franklin County Court of Appeals, which held that the Commission committed error for failure to hold an evidentiary hearing on the matter. Unhappy with that result, the Trumbull County Board of Health sought review by the Ohio Supreme Court, which reversed and remanded the matter.
The Court's most recent June 10, 2010 decision, makes clear that landfills must take extraordinary steps to address each and every issue required under the statute to obtain a license to build a new landfill facility. The landfill must also be sure to answer each and every issue raised by the licensing agency, and be sure that the information is accurate and complete. It appears only if there is a clear record of a repeated pattern of failure to acknowledge a complete application will the Court determine that such behavior is in fact a final action.
The facts of the case begin on May 21, 2004, when a company known as Trans Rail America, Inc. submitted a license application to build a construction and demolition debris landfill to be located in Hubbard Township, Trumbull County, Ohio. Approximately two months after receipt of the license application, the Trumbull County Board of Health issued a letter indicating that the Board would not consider the application because it was "incomplete." The environmental consultants hired to design the landfill met with the Health Commissioner, and on December 16, 2005, submitted additional information to supplement the original application.
Approximately two months later, the Board of Health issued a second letter, again finding the application "incomplete." On March 30, 2006, the facility, through its environmental consultants, submitted additional information and asked the Board of Health to either grant or deny the license application. On May 31, 2006, the Board issued a third letter stating that the application remained "incomplete" and alleged that the application lacked sufficient information.
In June 2006, Trans Rail filed an appeal to the Environmental Review Appeals Commission. After briefs were filed, and on March 8, 2007, ERAC issued a decision which held that the May 31, 2006 letter that advised the applicant the application was "incomplete" was not a "final order." Therefore, ERAC held that it did not have jurisdiction to review the appeal. However, despite having ruled that ERAC lacked jurisdiction to review the case, ERAC evaluated the evidence and determined that it was not "unlawful or unreasonable" for the Board of Health to determine that Trans Rail's application was in fact, incomplete.
A majority of the Franklin County Court of Appeals (Judge Bill Klatt and Judge Gary Tyack) observed that Ohio law provides that any person who was a party to a proceeding before a local board of health may participate in an appeal for an Order "vacating or modifying the action" or "Order the board of health to perform an act." (emphasis added). Relying upon the latter language, the Court therefore held that ERAC had jurisdiction to review the merits of the letter. In addition, a majority of the Court held that because ERAC evaluated the evidence and determined that the application was incomplete, but did so without a hearing, ERAC committed error.
Franklin County Court of Appeals Judge Judith French (who practiced law as an environmental attorney before being appointed a Judge) issued an 8-page dissent. The dissent agreed that the case should be remanded back to ERAC, but argued that the legal issue should be limited only to whether or not the letter "affected a substantial legal right with finality," or "adjudicates the appellant's legal rights." The dissent argued that the majority decision allows an applicant to "circumvent the process" by "prematurely appealing an agency's request for additional information or finding that an application is incomplete." The dissent also warned that the majority opinion sets a "dangerous precedent" which will overburden ERAC with "premature appeals."
The majority of the Ohio Supreme Court (Justices Lundberg Stratton, O'Connor, O'Donnell) along with Chief Justice Moyer, (who concurred in part, and dissented in part) agreed with Judge French's dissent. The Court held that the statute which governs ERAC appeals (R.C. 3745.04) cannot be read to provide an independent basis for ERAC to exercise appellate jurisdiction over a non-final decision of a board of health or the Director of Ohio EPA.
The Court then examined whether the board of health's decision that the application was not complete, is one which "substantially affects the appellant's property or other legal rights, even if it is not designated as final." The Court agreed with the Court of Appeals that a local board of health cannot evade appellate review simply by deeming an application incomplete and repeatedly and unreasonably requesting additional information. Further, the Court observed that the Court of Appeals had determined that ERAC erred in reaching the merits of whether the application was or was not "complete" because ERAC failed to hold a hearing on that issue.
Unfortunately, however, the Ohio Supreme Court did not tell us whether or not the Court agreed with this part of the ruling, but concluded that "that ruling is not before us." As such, the Ohio Supreme Court remanded the case to the Court of Appeals for a determination on whether or not the most recent letter determining the application was "incomplete," is in fact a "final decision" which is subject to review by ERAC.
Chief Justice Moyer wrote an opinion which concurred in part, and dissented in part from the majority opinion. His opinion dealt with the perception that a local board of health could evade review if it seeks to deny an applicant from obtaining a license by perpetually deeming the application incomplete. His opinion suggests that the aggrieved applicant file an action in mandamus to compel the local board to consider the application, if it is in fact complete, and either issue or deny the license.
On June 30, 2010, the same panel of the Franklin County Court of Appeals (Judges Klatt, Tyack, and French) issued a decision which held that the letter indicating that the letter from the Board of Health advising that the application was not complete and requested additional information, was not a "final action" because it did not "substantially affect Trans Rail's property or legal rights" and was not "an unreasonable attempt to avoid mailing an official decision," nor a "de facto denial" of Trans Rail's application.
For additional information regarding this Legal Update, please contact Frank J. Reed, Jr. at (614) 559-7213 or Freed@fbtlaw.com, or any other member of the Environmental Practice Group of Frost Brown Todd, LLC.