Meeker v. Akron Health Dept.Meeker v. Akron Health Dept.
WHITMORE, Judge.
{¶1} Plaintiff-Appellant, Robert C. Meeker, appeals from the judgment of the Summit County Court of Common Pleas. This Court affirms.
I
{¶2} Meeker‘s residence on Merriman Road was built in 1926, one year after the City of Akron (“the City“) installed a sewer line along Merriman Road. Despite the presence of the sewer line, Meeker‘s residence was equipped with a septic system, which has continually serviced the residence. On November 15, 1984, the City‘s Department of Public Health sent the residence‘s former owners, Mr. and Mrs. Hathaway, Jr. (collectively “the Hathaways“), a notification ordering them to connect their residence to the City‘s sewer system within thirty days or to seek an extension. Subsequently, the City provided the Hathaways a temporary waiver from its order, and the Hathaways permitted the City to inspect their septic system and
“After three attempts by the Sewer Engineering Division and with your cooperation it still can not be determined whether your property is connected to the existing sewer lateral system on your property.
“We feel at this time it is not necessary to continue checking for the lateral connection since the existing septic system on your property is operable and not causing a heath hazard.
“However, should a problem develop with your septic system you will be required to connect to the City Sanitary sewer.”
Subsequently, the Hathaways sold their residence to Meeker.
{¶3} On February 2, 2007, Meeker received an order from the City‘s Health Department, ordering him to abandon his septic system and connect to the City‘s sewer system pursuant to Akron Codified Ordinance (“ACO“) 50.02.1 Meeker requested an administrative hearing to appeal the order of the City. The hearing was held on June 12, 2007. On June 21, 2007, Meeker‘s administrative appeal was denied. On July 16, 2007, Meeker appealed to the Summit County Court of Common Pleas. On November 14, 2008, the trial court issued its decision, ruling in favor of the City.
{¶4} Meeker now appeals from the trial court‘s decision and raises three assignments of error for our review.
Assignment of Error Number One
“THE TRIAL COURT ERRED AS A MATTER OF LAW IN FINDING THAT THE CITY WAS NOT ESTOPPED FROM ORDERING MR. MEEKER TO ABANDON HIS SEPTIC SYSTEM, AFTER THE CITY HAD EARLIER STATED THAT ABANDONMENT OF THE SEPTIC SYSTEM WAS UNNECESSARY.”
{¶5} In his first assignment of error, Meeker argues that the trial court erred in finding that the City was not estopped from ordering him to abandon his septic system. Specifically, Meeker argues that: (1) the City‘s maintenance, operation, and upkeep of the sewer system is a proprietary function, not a governmental function that would bar an estoppel argument; (2) the City is bound by a 1985 letter from one of its sanitarians, representing that the septic system could remain in place until a problem with its operation arose; and (3) he relied to his detriment upon the City‘s representation when he purchased his property.
{¶6}
{¶7} While the construction and institution of a sewer system is a governmental function, the maintenance, upkeep, and repair of a sewer system is a proprietary function. Hack v. Salem (1963), 174 Ohio St. 383, 395; Hutchinson v. Lakewood (1932), 125 Ohio St. 100, 108 (“[T]he construction and institution of a sewer system is a governmental matter.“); Portsmouth v. Mitchell Mfg. Co. (1925), 113 Ohio St. 250, 258 (“[T]he maintenance and upkeep of sewers is proprietary and not governmental[.]“). See, also,
{¶8} Meeker relies upon the following three cases to argue that “the City‘s maintenance, operation and upkeep of a sewer system is a proprietary function“: Ball v. Reynoldsburg (1963), 175 Ohio St. 128; Sparks v. Erie County Bd. of County Com‘rs. (Jan. 16, 1998), 6th Dist. No. E-97-007; and Lancione v. Dublin (Sept. 29, 1992), 10th Dist. No. 92AP-244. Each of the foregoing cases, however, involved a negligence action for damages against a
{¶9} This is not an action for damages arising from the City‘s negligent operation or maintenance of its lines. Here, the City ordered Meeker to abandon his septic system and tap into the City‘s sewer line pursuant to ACO 50.02 (prohibiting homes for which “proper sewage accommodations” are available from relying upon septic systems). Meeker has failed to point to any law in support of his argument that the City, by ordering him to connect with its sewer line in accordance with its ordinance, was engaged in the maintenance, operation, or repair of its line. See Salem, 174 Ohio St. at 395. Contrary to Meeker‘s assertion, the case law that he cites does not show that “the City‘s attempt to order connection to the City sewer is a proprietary function” because none of the cited cases involved an order to connect. Once again, “[a]ppellate courts
Assignment of Error Number Two
“THE TRIAL COURT ERRED AS A MATTER OF LAW IN HOLDING THAT APPLICATION OF THE LAW REQUIRING MR. MEEKER TO ‘TIE INTO’ THE SEWER SYSTEM DID NOT AMOUNT TO AN IMPERMISSIBLE RETROACTIVE APPLICATION OF THE LAW.”
{¶10} In his second assignment of error, Meeker argues that the trial court erred as a matter of law in retroactively applying ACO 50.02 to this matter. Specifically, Meeker argues that his septic tank was installed prior to the enactment of the ordinance, which only applies prospectively.
{¶11} This Court applies a de novo standard of review to an appeal from a trial court‘s interpretation and application of an ordinance. Red Ferris Chevrolet, Inc. v. Aylsworth, 9th Dist. No. 07CA0072, 2008-Ohio-4950, at ¶4. “A de novo review requires an independent review of the trial court‘s decision without any deference to the trial court‘s determination.” State v. Consilio, 9th Dist. No. 22761, 2006-Ohio-649, at ¶4.
{¶12}
{¶13} ACO 50.02 provides as follows:
“No house sewer, drain, or water pipe from any building or premises shall be discharged into any cesspool or other like receptacle where such building or premises are provided with proper sewerage accommodations with which the same can be connected. If at any future time such premises are provided with proper sewerage accommodations, the future use of such cesspool or other receptacle shall be discontinued and the proper sewer and drains constructed whenever the Director of Public Health so orders.”
Meeker points to ACO 50.02‘s second sentence as evidence that the ordinance only applies prospectively. Meeker argues that ACO 50.02‘s plain language indicates that it only applies in instances where a home was constructed with a septic system before a city sewer system was available, and the city sewer system later became available. Because his home was constructed after the City‘s sewer line was available and the City still permitted the septic system on his
{¶14} Meeker‘s argument ignores the first sentence of ACO 50.02. ACO 50.02‘s first sentence clearly prohibits a residence from relying upon a “cesspool or other like receptacle” when “proper sewage accommodations” are available. This portion of the ordinance does not contain any time limitation. It merely indicates that if a sewer line is currently available an alternative receptacle cannot be used. If a sewer line is not currently available, but later becomes available, the second sentence of ACO 50.02 then goes into effect and indicates that the cesspool or alternative receptacle must be abandoned at that later time. We do not consider Meeker‘s argument, that ACO‘s use of the phrase “[i]f at any future time” makes the ordinance prospective, to be persuasive. Nor has Meeker cited to any law in support of his argument. See
{¶15} Generally, the next step in this Court‘s analysis would be to determine whether ACO 50.02 is substantive or remedial in nature. Id. at ¶8. Yet, Meeker has not presented any argument with regard to the substantive or remedial nature of the ordinance. Because he has failed to do so, this Court need not address the second step of its two-step analysis.
“THE TRIAL COURT ERRED IN HOLDING THAT THE STATUTORY EXEMPTION PROVIDED BY R.C. 6117.51(C) DOES NOT APPLY HERE.”
{¶16} In his third assignment of error, Meeker argues that the trial court erred in concluding that the statutory exemption in
{¶17} Once again, this Court applies a de novo standard of review to an appeal from a trial court‘s interpretation and application of a statute. Red Ferris Chevrolet, Inc. at ¶4. “A de novo review requires an independent review of the trial court‘s decision without any deference to the trial court‘s determination.” Consilio at ¶4.
{¶18}
“If the board of health of the health district within which a new public sewer construction project is proposed or located passes a resolution stating that the reason for the project is to reduce or eliminate an existing health problem or a hazard of water pollution, the board of county commissioners of the county, by resolution, may order the owner of any premises located in a sewer district in the county *** to connect the premises to the sewer for the purpose of discharging sewage or other waste that the board determines is originating on the premises, to make use of the connection, and to cease the discharge of the sewage or other waste into a cesspool, ditch, private sewer, privy, septic tank, semipublic disposal ***, or other outlet if the board finds that the sewer is available for use and is accessible to the premises following a determination and certification to the board by a registered professional engineer designated by it as to the availability and accessibility of the sewer. This section does not apply to any of the following:
“***
“(C) Any premises that are not served by a common sewage collection system when the foundation wall of the structure from which sewage or other waste originates is more than two hundred feet from the nearest boundary of the right-of-way within which the sewer is located[.]” (Emphasis added.)
Meeker argues that he meets subsection (C)‘s exemption because the distance between the sewer right of way and his foundation wall is greater than two hundred feet. Meeker acknowledges that
III
{¶19} Meeker‘s assignments of error are overruled. The judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellant.
BETH WHITMORE
FOR THE COURT
{¶20} Like a moth to flame, this Court can‘t resist the draw of the abuse of discretion standard. We want to insert it in every opinion. And the majority has incorrectly inserted it into the discussion of Mr. Meeker‘s first assignment of error.
{¶21} Under
{¶22} The question presented by Mr. Meeker‘s first assignment of error is whether the trial court correctly decided that, under Ohio law, a City is performing a governmental function when it orders a property owner to connect to a sewer line. Because that is a “question of law,”
{¶23} Regardless of the majority‘s incorrect reference to an incorrect standard of review, it has correctly determined that the trial court correctly applied the law in this case. Accordingly, I concur in the overruling of Mr. Meeker‘s first assignment of error and in the remainder of the majority‘s opinion.
{¶24} I concur. I write to point out that the attempt to classify the Akron Health Department‘s act of ordering Mr. Meeker to connect to its sewer system in conformance with Akron‘s ordinance as either “governmental” or “proprietary” is unsuitable for a proper analysis of this matter, and in the context of this case, does not fit neatly into either the governmental or proprietary mold. The governmental/proprietary dichotomy has “caused much difficulty, and in fact the law in this area is a tangle of disagreement and confusion.” Hack v. Salem (1963), 174 Ohio St. 383, 391 (Gibson, J., concurring) (tracing the development of the governmental versus proprietary doctrine, id. at 392-395, and noting that courts have frequently reversed positions as to whether a particular act is governmental or proprietary: “Proof that the classification of particular functions of municipalities has been difficult and frequently leads to absurd and unjust consequences could fill many pages.” Id. at 394.); see, also, Seasongood, Municipal Corporations: Objections to the Governmental or Proprietary Test (1984), 53 U.Cin.L.Rev. 469. Nonetheless, I concur because given our deferential standard of review in this matter, I do not find that the trial court committed reversible error.
APPEARANCES:
ROBERT C. MEEKER, and MATTHEW L. RIZZI, JR., Attorneys at Law, for Appellant.
MAX ROTHAL, Director of Law, SEAN W. VOLLMAN, and JOHN R. YORK, Assistant Directors of Law, for Appellee.