A & B Refuse Disposers, Inc. v. Ravenna Twp. Bd. of Trustees - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
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A & B Refuse Disposers, Inc., Appellant, v. Board of
Ravenna Township Trustees et al., Appellees.
[Cite as A & B Refuse Disposers, Inc. v. Ravenna Twp. Bd.
of Trustees (1992), Ohio St.3d .]
Public utilities -- Determination of whether entity is a public
utility for the purpose of exemption from local zoning
restrictions requires consideration of several factors
related to the "public service" and "public concern"
characteristics of a public utility.
The determination of whether a particular entity is a public
utility for the purpose of exemption from local zoning
restrictions requires a consideration of several factors
related to the "public service" and "public concern"
characteristics of a public utility. While the definition
of a "public utility" is a flexible one, the entity must
provide evidence that it possesses certain attributes
associated with public utilities or its claim to that
status must fail.
(No. 91-1099 -- Submitted May 5, 1992 -- Decided August
19, 1992.)
Appeal from the Court of Appeals for Portage County, No.
90-P-2196.
Plaintiff-appellant, A & B Refuse Disposers, Inc., is an
Ohio corporation engaged in the business of collecting solid
waste from industrial, commercial and residential customers.
Appellant has operated a landfill, located in Ravenna Township,
Portage County, Ohio, since 1962. In 1988, appellant acquired
a sixty-six-acre parcel of land adjacent to the landfill.
Pursuant to the Ravenna Township Zoning Code, this property is
zoned R-3, residential use only. Appellant intends to
construct a truck terminal and offices on the sixty-six acres
and plans to remove dirt from that property for use as cover
material on the landfill. After discussing its proposed use of
the acquired property with township officials, appellant was
advised that such proposed use probably would not be approved.
Appellant then filed this declaratory judgment action in
the common pleas court, naming the Board of Ravenna Township
Trustees and the Ravenna Township Zoning Inspector as
defendants, and asked for a determination of whether its

landfill operation was subject to regulation under the Ravenna
Township Zoning Code. At trial, the only evidence presented
was the testimony of appellant's general manager and
secretary-treasurer, Eugene McFarland. McFarland stated that
the landfill was "open to all residents of Ravenna Township."
He admitted that he was responsible for setting the rates
charged to those members of the public who availed themselves
of this service and that these rates were not subject to review
by the Public Utilities Commission of Ohio.
In its decision, the trial court found that the sole
question before it was whether appellant was operating a
landfill as a public utility and was, therefore, exempt from
township zoning regulation pursuant to R.C. 519.211, effective
March 5, 1987 (now R.C. 519.211[A], effective October 15,
1991). In determining that appellant's landfill was not the
functional equivalent of a public utility, the trial court
held, in part, that appellant neither served those of the
public who needed its services without discrimination nor
served such a substantial part of the public as to make its
rates, charges or methods of operation a matter of public
concern. The trial court also noted that the proposed use of
the sixty-six acre tract was not necessary to the operation of
the landfill. As a result, the court concluded that granting
public utility status to the sanitary landfill would not exempt
the acquired tract from local zoning restrictions.
Upon appeal, the court of appeals affirmed. The appellate
court rejected appellant's argument that its landfill was a
"public utility" as defined in Marano v. Gibbs (1989), 45 Ohio
St.3d 310, 544 N.E.2d 635.
This cause is now before the court pursuant to the
allowance of a motion to certify the record.

Vorys, Sater, Seymour & Pease, Michael G. Long, David W.
Hardymon, William C. Heer III and Thomas J. Sicuro, for
appellant.
David W. Norris, prosecuting attorney, and Kent M. Graham,
for appellees.
Robert D. Horowitz, prosecuting attorney, and David A.
Thorley, urging affirmance for amicus curiae, Ohio Prosecuting
Attorneys' Association.
Emens, Hurd, Kegler & Ritter and William J. Brown, urging
affirmance for amicus curiae, Mid-American Waste Systems, Inc.
Szolosi & Fitch, Michael R. Szolosi and Kimberly A. Rye,
urging remand for amicus curiae, National Solid Waste
Management Association.

Melvin L. Resnick, J. The precise issue in this case is
whether the definition of a "public utility," as expressed in
case law, is applicable to appellant's landfill operation for
the purpose of exemption from township zoning restrictions.
Former R.C. 519.211 expressly exempts public utilities
from township zoning regulation and land use controls. R.C.
Chapter 519 does not, however, provide a definition of the term
"public utility" for the purpose of determining qualification
for the exemption. Nevertheless, the meaning of "public
utility," although sometimes elusive, has gradually evolved
through case law.

Determination of whether a particular entity is a public
utility is a mixed question of law and fact. Marano v. Gibbs,
supra, at 311, 544 N.E.2d at 636. The resolution of the
question of whether an enterprise is operating as a public
utility is decided by an examination of the nature of the
business in which it is engaged. Indus. Gas Co. v. Pub. Util.
Comm. (1939), 135 Ohio St. 408, 14 O.O. 290, 21 N.E.2d 166,
paragraph one of the syllabus. Although case law provides a
list of characteristics common to public utilities, it is
generally recognized that none of these characteristics is
controlling. Montville Bd. of Twp. Trustees v. WDBN, Inc.
(1983), 10 Ohio App.3d 284, 10 OBR 400, 461 N.E.2d 1345. That
is, each case must be decided on the facts and circumstances
peculiar to it. Indus. Gas Co. v. Pub. Util. Comm., supra, at
413, 14 O.O. at 292, 21 N.E.2d at 168.
Nonetheless, public utilities possess certain common
attributes or characteristics which courts employ in
determining the nature of an entity's operations. The main and
frequently most important attribute of a public utility is a
devotion of an essential good or service to the general public
which has a legal right to demand or receive this good or
service. S. Ohio Power Co. v. Pub. Util. Comm. (1924), 110
Ohio St. 246, 252, 143 N.E. 700, 701, quoting Allen v. RR.
Comm. of California (1918), 170 Cal. 68, 175 P. 466; Freight,
Inc. v. Northfield Ctr. Bd. of Twp. Trustees (1958), 107 Ohio
App. 288, 292-293, 8 O.O.2d 212, 215, 158 N.E.2d 537, 540;
Motor Cargo, Inc. v. Richfield Bd. of Twp. Trustees (1953), 67
Ohio Law Abs. 315, 318, 52 O.O. 257, 258, 117 N.E.2d 224, 226.
See, generally, 2 Anderson, American Law of Zoning (3 Ed. 1986)
568, Section 12.32. The fact that a private business provides
a good or service associated with the usual subject matter of a
public utility does not give rise to a presumption that it is
devoted to public service. S. Ohio Power Co. v. Pub. Util.
Comm., supra, paragraph one of the syllabus. Rather, in order
to qualify as a public utility, the entity must, in fact,
provide its good or service to the public indiscriminately and
reasonably. Marano v. Gibbs, supra, at 311, 544 N.E.2d at
636. See, also, S. Power Co. v. Pub. Util. Comm., supra,
paragraph two of the syllabus; Freight, Inc. v. Northfield Ctr.
Twp. Bd. of Trustees, supra, at 292, 8 O.O.2d at 214, 158
N.E.2d at 540. See, generally, 64 American Jurisprudence 2d
(1972) 550, Public Utilities, Section 1. Further, this
attribute requires an obligation to provide the good or service
which cannot be arbitrarily or unreasonably withdrawn.
Freight, Inc. v. Northfield Ctr. Twp. Bd. of Trustees, supra,
at 293, 8 O.O.2d at 215, 158 N.E.2d at 540.
The second characteristic of a public utility most often
addressed by courts is whether the entity, public or private,
conducts its operations in such a manner as to be a matter of
public concern. Marano v. Gibbs, supra. Normally, a public
utility occupies a monopolistic or ogopolistic position in the
marketplace. Greater Fremont, Inc. v. Fremont (N.D. Ohio
1968), 302 F.Supp. 652, 664-665. See, also, Mammina v.
Cortlandt Zoning Bd. of Appeals (1981), 110 Misc.2d 534, 536,
442 N.Y.S.2d 689, 691. This position gives rise to a public
concern for the indiscriminate treatment of that portion of the
public which needs and pays for the vital good or service

offered by the entity. Factors utilized in determining whether
an enterprise conducts itself in such a way as to become a
matter of public concern include the good or service provided,1
competition in the local marketplace,2 and regulation by
governmental authority.3 Again, however, none of these factors
is controlling. Nevertheless, in a case where the business
enterprise serves such a substantial part of the public that
its rates, charges and methods of operation become a public
concern, it can be characterized as a public utility. Indus.
Gas Co. v. Pub. Util. Comm., supra, at 414, 14 O.O. at 292, 21
N.E.2d at 168.
In this court's most recent pronouncement dealing with the
definition of "public utility," we summarized the foregoing
controlling precedent by stating:
"* * * [A]n entity may be characterized as a public
utility if the nature of its operation is a matter of public
concern, and membership is indiscriminately and reasonably made
available to the general public." Marano v. Gibbs, supra, at
311, 544 N.E.2d at 637.
Again, this is a distillation of prior case law. It is
obvious from a review of that case law that the determination
of public utility status requires a flexible rule, a rule which
often intertwines the factors considered in relation to the
concepts of "public service" and "public concern." Our holding
in Marano v. Gibbs does not dispense with the factors which
must be considered by a court in making its determination of
whether, on the particular facts and circumstances of the case
before it, a specific business qualifies as a public utility.
For this reason, we reject appellant's assertion that Marano v.
Gibbs, supra, stands for the proposition that any business
which simply claims that its services are "open to the public"
can be categorized as a public utility. This view is an unduly
expansive construction of our holding in that such a definition
encompasses traditional private business enterprises which are,
in various degrees, regulated by diverse public authorities,
e.g., dry cleaners, restaurants, and grocery stores. They are
not and should not be deemed public utilities. We hold,
therefore, that the determination of whether a particular
entity is a public utility for the purpose of exemption from
local zoning restrictions requires a consideration of several
factors related to the "public service" and "public concern"
characteristics of a public utility. It follows that a
business claiming public utility status bears the burden of
offering sufficient evidence on these factors to the trial
court so that the court can comprehensively determine the
merits of that claim. Absent sufficient facts as to pertinent
attributes, that claim must fail.
Appellant also proposes that state regulation of a waste
disposal facility pursuant to R.C. Chapter 3734 qualifies a
sanitary landfill as a matter of public concern for the purpose
of exemption from the imposition of local zoning laws.
The General Assembly enacted R.C. Chapter 3734 because of
a public concern with adverse environmental effects related to
the collection and disposal of solid waste. The rules and
regulations promulgated and administered by the Ohio
Environmental Protection Agency arise from this public concern
and are imposed for the protection of the environment and for

human health and safety. Families Against Reily/Morgan Sites
v. Butler Cty. Bd. of Zoning Appeals (1989), 56 Ohio App.3d 90,
96, 564 N.E.2d 1113, 1120; Hulligan v. Columbia Twp. Bd. of
Zoning Appeals (1978), 59 Ohio App.2d 105, 108, 13 O.O.3d 162,
163, 392 N.E.2d 1272, 1274; N. Sanitary Landfill, Inc. v. Bd.
of Cty. Commrs. (1976), 52 Ohio App.2d 167, 170-171, 6 O.O.3d
162, 164, 369 N.E.2d 17, 20. On the other hand, and as stated
previously, the public concern as it relates to a public
utility arises from the monopolistic aspects of the entity and
the nature of the business in which it is engaged. State
regulation is provided to protect members of the public from
disparate treatment in the acquisition of an essential good or
service. Accordingly, the public concern with environmental
regulation is separate and distinct from the public concern
involved in the regulation of public utilities. Finally, the
fact that a business is regulated by a governmental body,
including a public utilities commission, is not dispositive of
the question of whether that business is a "public utility" for
the purpose of former R.C. 519.211. Rather, such a designation
is simply evidence of that status. McGinnis v. Quest Microwave
VII, Inc. (1985), 24 Ohio App.3d 220, 221, 24 OBR 398, 399, 494
N.E.2d 1150, 1151-1152.
In applying these principles to the case at bar, we are
astonished at the paucity of the evidence offered by appellant
to establish that its landfill should be characterized as a
public utility for the purpose of exemption from the local
zoning code. In reviewing the transcript, which consists of
seven pages of testimony from McFarland, only one statement,
i.e., the landfill is "open to the residents of Ravenna
Township," has any relevance to the criteria for qualification
as a public utility. There is no evidence that the services
are, in fact, provided to the residents of Ravenna Township
indiscriminately and reasonably. No evidence exists to
demonstrate that a substantial part of those residents actually
avail themselves of that service. Indeed, there is no evidence
in the record as to the nature of the services provided or of
their necessity to township residents. In sum, appellant
failed to present sufficient evidence on those factors
essential to a determination of whether an entity can be
classified as a public utility. We note that this finding does
not necessarily foreclose the characterization of a privately
operated solid waste disposal facility as a public utility.
Under certain demonstrated circumstances, a landfill operation
might be deemed as such. However, we caution the owners and
operators of such facilities that public utility status, while
exempting these facilities from local zoning restrictions,
invites even greater governmental regulation and control than
is currently experienced in this industry.
We conclude that, upon the particular facts and
circumstances of this case, insufficient evidence was presented
to establish that appellant's landfill possesses the attributes
of a public utility.4 As a consequence, the landfill is not
exempt from local zoning restrictions pursuant to former R.C.
519.211.
The judgment of the court of appeals is affirmed.
Judgment affirmed.
Moyer, C.J., Sweeney, Holmes, Douglas, Wright and Resnick,

JJ., concur.
Melvin L. Resnick, J., of the Sixth Appellate District,
sitting for H. Brown, J.
FOOTNOTES:
1 Indus. Gas Co. v. Pub. Util. Comm., supra, at 413, 14
O.O. at 292, 21 N.E.2d at 168.
2 Iowa State Commerce Comm. v. Northern Natural Gas Co.
(Iowa 1968), 161 N.W.2d 111, 115.
3 McGinnis v. Quest Microwave VII, Inc. (1985), 24 Ohio
App.3d 220, 221, 24 OBR 398, 399, 494 N.E.2d 1150, 1151.
4 Due to this conclusion, we do not reach the question of
whether the landfill owner, appellant herein, will be using the
acquired parcel for landfill purposes.