STATE OF OHIO еx rel. CHARLES OSBORNE v. CITY OF NORTH CANTON
Case No. 2018CA00132
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
May 6, 2019
2019-Ohio-1744
Hon. William B. Hoffman, P.J, Hon. Patricia A. Delaney, J., Hon. Earle E. Wise, Jr., J.
CHARACTER OF PROCEEDINGS: Appeal from the Stark County Court of Common Pleas, Case No. 2018CV00837. JUDGMENT: Affirmed.
WARNER MENDENHALL
BRIAN UNGER
Law Offices of Warner Mendenhall, Inc.
190 North Union Street, Suite 201
Akron, Ohio 44304
For Respondent-Appellee
GREGORY A. BECK
TONYA J. ROGERS
Baker, Dublikar, Beck, Wiley & Matthews
400 South Main Street
North Canton, Ohio 44720
{¶1} Relator-appellant Charles Osborne appeals the August 1, 2018 Judgment Entry entered by the Stark County Court of Common Pleas, which granted respondent-appellee City of North Canton‘s motion for judgment on the pleadings.
STATEMENT OF THE CASE AND FACTS
{¶2} The city of North Canton (“the City“) is a chartered municipal corporation organized and operating pursuant to the laws of the state of Ohio and the Charter of the Municipality of North Canton (“the Charter“).
{¶3} On February 28, 2011, the North Canton City Council (“City Council“) enacted Ordinance 20-11, which amended Chapter 937 of its Codified Ordinances, to provide for the creation of a Board to govern water rates and water charges within the City. The Board created is сommonly referred to as “the Water Board.”
{¶4} On October 23, 2017, City Council enacted Ordinance 88-2017, which replaced Codified Ordinance 935.08, to increase public access to water and sanitary sewer services for non-residents. Ordinance 88-2017 permits the Water Board and the chair of the Water, Sewer and Rubbish Committee to negotiate water and sanitary service agreements for locations outside the City.
{¶5} Appellant is a North Canton property owner and taxpayer. On February 27, 2018, Attorney Warner Mendenhall, on behalf оf Appellant, sent a letter to Timothy Fox, the North Canton Law Director, asserting Ordinance 88-2017 violated
{¶6} On April 24, 2018, Appellant filed a complaint for declaratory judgment and injunctivе relief. Specifically, Appellant sought a declaration Ordinances 20-11 and 88-2017 (collectively, “the Ordinances“) violated the Ohio Revised Code and, additionally or alternatively, the Ordinances violated the Charter and Code; a declaration the cоntinued operation of the Water Board was illegal; and an injunction to enjoin the continued operation of the Water Board. The City filed an answer on May 23, 2018. The trial court issued a scheduling order on May 30, 2018.
{¶7} On June 13, 2018, the City filed a motion for judgment on the pleadings. Appellant filed a response on July 2, 2018. The City filed a reply in support of its motion on July 12, 2018. Via Judgment Entry Granting Judgment on the Pleadings filed August 1, 2018, the trial court granted judgment in favor of the City.
{¶8} It is from this judgment entry Appellant appeals, raising the following assignments of error:
I. THE TRIAL COURT ERRED AS A MATTER OF LAW BY DECIDING A CRITICAL DISPUTED FACTUAL ISSUE IN FAVOR OF THE NONMOVING [SIC] PARTY.
II. THE TRIAL COURT ERRED IN FINDING LANGUAGE USED IN
R.C. 743.03(A) INOPERATIVE OR SUPERFLUOUS.III. THE TRIAL COURT ERRED IN FINDING THE WATER BOARD WAS ESTABLISHED BY ORDINANCE AND AUTHORIZED BY CHARTER.
{¶9}
{¶10} A motion for a judgment on the pleadings, pursuant to
II
{¶11} For ease of discussion, we shall address Appellant‘s second assignment of error first. In his second assignment of error, Appellant argues the trial court erred in finding language used in
(A) For the purpose of paying the expenses of conducting and managing the waterworks of a municipal corporation, including operating expenses and the costs of permanent improvements, the director of public service or any other city official or body authorized by charter may assess аnd collect a water rent or charge of sufficient amount and in such manner as the director, other official, or body determines to be most equitable from all tenements and premises supplied with water. (Italic and bold emphasis added).
{¶13} In its August 1, 2018 Judgment Entry Granting Judgment on the Pleadings, the trial court found:
By its use of the word “may“, the statute clearly provides permission for “the director of public service or any other city official or body authorized by charter” to assess water rents in such a manner as such person or body determines to be most equitable. This statute contains absolutely no prohibitive or proscriptive language, nor does it state that the permission granted therein is exclusive to those named or constitutes the only means by which a municipality may assess and collect water rеnts. Id. at 3.
{¶14} Appellant maintains the trial court, by so finding, ruled the “authorized by
{¶15} We agree with the trial court and find the phrase “authorized by charter” modifies the noun “body“. If the legislature intended the reading suggested by Appellant, the phrase “authorized by charter” would either follow the “may assess and collect a water rent or charge of sufficient amount” language and read “may assess and collеct a water rent or charge. . . as authorized by charter“, or read “authorized by charter to assess and collect“. The legislature did not write the statute in either manner. “It is the duty of the court to give effect to the words used and not to insert words not used.” Trustees of Police & Firemen‘s Disability & Pension Fund, 69 Ohio St.3d 409, 412 (1994). (Citation omittеd). Accordingly, we find the trial court‘s finding did not render the language used in
{¶16} Appellant‘s second assignment of error is overruled.
I, III
{¶17} Because Appellant‘s first and third assignments of error are interrelated, we shall address them together. In his first assignment of error, Appellant asserts the trial court erred as a matter of law in deciding a mаterial disputed factual issue in favor of the movant. Specifically, Appellant contends the question of whether Ordinance 20-11 created the Water Board is a factual issue and the trial court‘s determination of such in favor of the City constitutes reversible еrror. In his third assignment of error, Appellant
{¶18} Section 3.03 of the Charter reads:
The Council shall by ordinance provide for a Finance Department, a Law Department, a Department of Service, a Department of Safety, a Civil Servicе Commission, a Planning Commission, a Zoning and Building Standards Board of Appeals, and such other departments, divisions, boards, commissions, officers and employees as it may deem necessary, and determine the organization and duties of each officer and emplоyee, except as otherwise provided by this Charter. (Italic and bold emphasis added).
{¶19} Pursuant thereto, City Council enacted Ordinance 20-11. Section 937.03(d) of Ordinance 20-11 specifically provides:
In the event of any dispute as to charges or any dispute as failurе to comply with rules and regulations concerning the use of the City‘s waterworks system shall upon written request by the party aggrieved be referred to a Board consisting of the Director of Law, Director of Finance and Director of Administration for review. Said Board shall hear said dispute within thirty days receipt of said notice and shall make a written decision to the party aggrieved within a reasonable time thereafter.
{¶21} The plain language of Section 937.03(d) of Ordinance 20-11 creates a “Board consisting of the Director of Law, Director of Finance and Director of Administration” to hear “any dispute as to charges or any dispute as failure to comply with rules and regulations concerning the use of the City‘s waterworks system“. Like the trial court, we find Ordinance 20-11 did, in fact, create the Water Board, and the creation of said Board was authorized by the Charter. The Charter allows for the creation of boards deemed necessary. The fact the Board was not expressly labeled “the Water Board” in Ordinance 20-11 does not alter its nature or purpose.
{¶22} As discussed in our analysis of Appellant‘s second assignment of error, supra, the Water Board is a “body authorized by charter” as used in
{¶23} Alternatively, the trial court held the creation of the Water Board fell within the City‘s authority under the Home Rule Amendment of the
{¶24} “By reason of
{¶25} We use a three-part test to evaluate claims a municipality has exceeded its powers under the Home Rule Amendment. “A state statute takes precedence over a local ordinance when (1) the ordinance is in conflict with the statute, (2) the ordinance is an exercise of the police power, rather than of local self-government, and (3) the statute is a general law.” Mendenhall v. City of Akron, 117 Ohio St.3d 33, 2008-Ohio-270, 881 N.E.2d
{¶26} Applying the factors set forth in the three-part test, we conclude the City has not exceeded its power in enacting the Ordinances. Assuming, arguendo, the Ordinances are an exercise of police power, we find the first and third factors are not satisfied. As discussed, supra, the Ordinances are not in conflict with
{¶27} To constitute a general law for purposes of Home Rule analysis, “a statute must (1) be part of a statewide and comprehensive legislative enactment, (2) apply to all parts of the state alike and operate uniformly throughout the state, (3) set forth pоlice, sanitary, or similar regulations, rather than purport only to grant or limit legislative power of a municipal corporation to set forth police, sanitary, or similar regulations, and (4) prescribe a rule of conduct upon citizens generally.” Canton v. State, 95 Ohio St.3d 149, 2002-Ohio-2005, 766 N.E.2d 963, syllabus.
{¶28} We find
{¶29} Based upon the foregoing, we find the creation of the Water Board did not exceed the City‘s authority under the Home Rule Amendment.
{¶30} Based upon the foregoing, we find the trial court did not err in granting judgment on the pleadings in favor of the City.
{¶31} Appellant‘s first and third assignments of error are overruled.
{¶32} The judgment of the Stark County Court of Common Pleas is affirmed.
By: Hoffman, P.J.
Delaney, J. and
Wise, Earle, J. concur