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Fondessy Enters. v. Oregon, City of

ELR Citation: 16 ELR 20871
Nos. No. 85-395, 492 N.E.2d 797/23 Ohio St. 3d 213, (Ohio, 05/07/1986)

The court holds that an Ohio municipality may impose a permit fee and recordkeeping requirements, in addition to state-imposed requirements, upon a hazardous waste facility located within the city's borders. The court first rules that the home rule power of municipalities under the Ohio Constitution permits municipal adoption and enforcement of ordinances concerning the same matter as general state laws so long as the two do not conflict. The court holds that this constitutionally guaranteed home rule power cannot be extinguished legislatively, and the state hazardous waste law must be analyzed for direct conflict with the city ordinance. The court then applies the judicial test for conflict between state and local laws, and holds that the local permit fee and recordkeeping requirements do not conflict with the general state law regulating the operation and licensing of hazardous waste facilities. The court then holds that both the state and the municipality have concurrent jurisdiction over the facility.

Three justices dissent, arguing that the state law preempts municipal law, and that the state law was intended to establish uniform statewide regulation of hazardous waste facilities. The dissent would also hold that the state law and ordinance in fact conflict, since the local law imposes additional requirements on the operation of a facility, expressly proscribed by the state statute.

Counsel for Appellee
Jamille G. Jamra, Henry N. Heuerman, Richard T. Sargeant
Eastman & Smith
800 United Savings Bldg., 240 Huron St., Toledo OH 43604-1141
(419) 241-6000

Counsel for Appellant
Nick Batt
405 N. Huron St., Toledo OH 43604
(419) 255-1474