TRANS RAIL AMERICA, INC., APPELLEE, v. ENYEART, APPELLANT.
No. 2008-0359
Supreme Court of Ohio
Submitted January 14, 2009—Decided July 30, 2009
123 Ohio St.3d 1, 2009-Ohio-3624
CUPP, J.
{11} The issue in this case is whether the Environmental Review Appeals Commission (ERAC) has jurisdiction to hear an appeal from a decision of a local board of health that a license application for a facility for the disposal of construction and demolition debris is incomplete. We conclude that ERAC has jurisdiction to entertain such an appeal if the letter is a final decision that substantially affects the applicant‘s property or other legal rights.
I
{12} In May 2004, appellee, Trans Rail America, Inc. (Trans Rail), applied to the Trumbull County Health Department for a license to establish a facility for disposal of construction and demolition debris (C & DD).1 In July 2004, Dr. James Enyeart, Trumbull County health commissioner, advised Trans Rail by letter that he could not consider the application because it was incomplete, and he informed Trans Rail of the incomplete aspects of its application. On July 29, 2004, representatives of Trans Rail (CT Consultants, an engineering firm) met with Enyeart to discuss the application. A year and a half later, on December 16, 2005, Enyeart received from CT Consultants Trans Rail‘s written response to Enyeart‘s letter, including additional information to support the license application.
{14} On June 30, 2006, Trans Rail filed an appeal to ERAC of Enyeart‘s May 31, 2006 letter. Trans Rail sought an order from ERAC determining that Trans Rail‘s license application was complete within the meaning of
{15} Enyeart moved to dismiss Trans Rail‘s appeal, asserting that ERAC lacked jurisdiction because the May 31, 2006 letter was not a final act or action of the department appealable under
{17} Enyeart sought discretionary review in this court, asserting that
II
{18} The answer to the question presented for our review depends upon the proper construction of
{19} “(A) * * *
{110} “As used in this section, action or act includes the adoption, modification, or repeal of a rule or standard, the issuance, modification, or revocation of any lawful order other than an emergency order, and the issuance, denial, modification, or revocation of a license, permit, lease, variance, or certificate, or the approval or disapproval of plans and specifications pursuant to law or rules adopted thereunder.
{111} “(B) Any person who was a party to a proceeding before the director of environmental protection may participate in an appeal to the environmental review appeals commission for an order vacating or modifying the action of the director or a local board of health, or ordering the director or board of health to perform an act. The environmental review appeals commission has exclusive original jurisdiction over any matter that may, under this section, be brought before it.
{112} “* * *
{113}
{114} “The appeal shall be filed with the commission within thirty days after notice of the action. * * *
{115} “* * *
{116} “Within seven days after receipt of the notice of an appeal filed under division (B) of this section, the director or local board of health, as applicable, shall prepare and certify to the commission a record of the proceedings out of which the appeal arises, including all documents and correspondence, and a transcript of all testimony.
{117} “* * *
{118} “The filing of an appeal does not automatically suspend or stay execution of the action appealed from. Upon application by the appellant, the commission may suspend or stay the execution pending immediate determination of the appeal * * *.” (Emphasis added.)
A
{119} The court of appeals determined that the phrase “or ordering the director or board of health to perform an act” in
1
{120} We are not persuaded that
{122} The statutory scheme gives the director (or, in this case, the local board of health) the role of initial review and determination of license applications.
{123} Allowing appeals of nonfinal licensing decisions could undermine the statutory framework. If actions or acts need not be final to be appealed, then successive appeals of interim decisions of the reviewing body would be possible. If ERAC were to be inundated with appeals of nonfinal decisions, the flood could delay the time for decision on appeals and thus slow the license-review process as a whole.
{124} Determining which nonfinal decisions would trigger appeal rights would be less than clear, making it difficult for a would-be appellant even to determine when the 30-day appeal time in
{125} We agree with the dissenting judge below that the better reading of ERAC‘s authority under
{126} We hold that ERAC‘s statutory authority to order the performance of an act is ancillary to ERAC‘s appellate jurisdiction to review final actions of a local board of health or the director of environmental protection. ERAC may order the board or director to perform an act in accordance with ERAC‘s decision on appeal of an action, rather than simply vacating or modifying the action. This reading of
2
{127} Having decided that ERAC‘s authority under
{128}
{129} When an action is not listed in
{30} The court of appeals and ERAC also review the substance of the challenged decision to ascertain whether it finally determines some matter that affects the appellant‘s substantial rights, privileges, or property. In Dayton Power & Light Co. v. Schregardus (10th Dist.1997), 123 Ohio App.3d 476, 704 N.E.2d 589, for example, the court reversed ERAC‘s dismissal of an appeal from the director‘s decision to place a property on a master site list of contaminated properties. Government officials and other businesses reviewed that list when evaluating property. Because appellant had no opportunity either to contest the inclusion of its property on the list before the list was made public or to have appellant‘s property removed from the list, the court remanded the case to ERAC to hear the owner‘s claim that inclusion of the property on the master site list “affected a substantial legal right with finality and/or that Ohio EPA exceeded its authority by promulgating” the list. Id. at 481, 704 N.E.2d 589. ERAC‘s jurisdiction to hear the appeal was not defeated by the fact that the action complained of was not listed in
{131} The key issue in determining whether a particular decision not listed in
{133} In this case, the applicable rule states, “An incomplete application [for a C & DD facility] shall not be considered.”
{134} However, as ERAC explained in this case, the requirement of a final decision does not mean that the licensing entity (a board of health or the director of environmental protection) can evade appellate review under
B
{135} In this case, ERAC dismissed the appeal for lack of jurisdiction but stated that Enyeart‘s decision to request more information was reasonable. The court of appeals determined that ERAC erred in reaching the merits of the issue of whether Trans Rail‘s application was incomplete without holding a hearing. 2007-Ohio-7144, 2007 WL 4564303, ¶ 14. That ruling is not before us.
{36} Because the court of appeals construed
III
{137} Accordingly, we hold that the court of appeals erred in concluding that Enyeart‘s letter that declared Trans Rail‘s application to be incomplete and requested further information was appealable to the Environmental Review Appeals Commission without regard to whether it was a final action of the Trumbull County Board of Health. We vacate the judgment below and remand the case to the court of appeals for a determination whether Enyeart‘s letter was a final decision appealable to ERAC under the criteria outlined in this opinion.
Judgment vacated and cause remanded.
LUNDBERG STRATTON, O‘CONNOR, and O‘DONNELL, JJ., concur.
MOYER, C.J., concurs in part and dissents in part.
PFEIFER and LANZINGER, JJ., dissent.
{138} I agree with the majority‘s conclusion that the Environmental Review Appeals Commission (“ERAC“) has jurisdiction to review only final decisions of a local board of health or the director of environmental protection, but for different reasons. I would also hold that the Trumbull County Health Department‘s actions in this case, refusing to consider a license application because it was incomplete, did not constitute a final decision, and, therefore, ERAC properly determined that it did not have jurisdiction to hear the appeal.
I
{139} The proper resolution of this case follows directly from the precise text of the statute at issue,
{40} The majority determines that this section requires a final determination by the local board of health because “ERAC‘s statutory authority to order the performance of an act is ancillary to ERAC‘s appellate jurisdiction to review final actions of a local board of health or the director of environmental protection.” Majority opinion at ¶ 26. The majority‘s rationale in support, that this ancillary authority allows ERAC to order some act, such as issuing a license, rather than merely vacating an order, ignores the fact that ERAC could order that same act simply by modifying the original order pursuant to its primary grant of authority in
{41} This latter construction does not, however, mean that ERAC can consider appeals without a final action by the local board of health, as the dissent contends. The first part of the sentence in
{42} Were this court to read the statute to allow appeals of nonfinal actions, the limited appeal system established by the General Assembly would be meaningless. A party could completely bypass the local board of health in favor of immediately petitioning ERAC to order the local board to perform some act. That arrangement would thwart legislative intent and put a heavy burden on the resources of ERAC.
II
{43} A determination by a local board of health or the director of environmental protection that a license application is incomplete, as occurred in this case, cannot constitute a final action under
{144} The majority concludes that a decision of a local board of health that an application is incomplete may still be a final action “if it in effect determines any legal right or privilege of the appellant.” Majority opinion at ¶ 34. But such a decision will never completely determine the applicant‘s legal rights because the local board will have reached no decision regarding the applicant‘s right to a license, and once an application‘s deficiencies are remedied, the application will then be considered and ruled upon.
{145} The majority further contends that a contrary holding could allow a local board or the director of environmental protection to evade review if it seeks to deny an applicant from obtaining a license by perpetually deeming the application incomplete. An aggrieved applicant could, however, file an action in mandamus to compel the local board or director to consider the application, if it is in fact complete, and either issue or deny a license. For an action to lie in mandamus a relator must demonstrate (1) a clear legal right to the relief sought, (2) a clear legal duty of the respondent to perform the requested action, and (3) the lack of an adequate remedy at law. State ex rel. Ohio Assn. of Pub. School Emps. v. Batavia Local School Dist. Bd. of Edn. (2000), 89 Ohio St.3d 191, 198, 729 N.E.2d 743.
III
{¶ 47} I concur in the majority‘s holding that
Lanzinger, J., dissenting.
{¶ 48} Does the Environmental Review Appeals Commission (“ERAC“) have jurisdiction over Trans Rail‘s appeal? I would hold that it does.
{¶ 49} Appellee Trans Rail attempted to submit an application for a license for a facility for the disposal of construction and demolition debris in Trumbull County. The company argues that timing for a completed application was important because more stringent siting criteria were to take effect on July 1, 2005. It made a first submission to the health department in May 2004 but was told that the application was incomplete. Even though it submitted additional information in December 2005 and on March 30, 2006, its application was still deemed incomplete, meaning that by regulation, its application would not even be considered.
{¶ 50} The majority accepts appellant‘s argument that
{152} “As used in this section, ‘action’ or ‘act’ includes the adoption, modification, or repeal of a rule or standard, the issuance, modification, or revocation of any lawful order other than an emergency order, and the issuance, denial, modification, or revocation of a license, permit, lease, variance, or certificate, or the approval or disapproval of plans and specifications pursuant to law or rules adopted thereunder.” (Emphasis added.)
{53}
{154} Even if actions of the director or local board must be final to be appealable,
{155} The majority, however, holds that ERAC‘s ability to order the performance of an act is ancillary to its jurisdiction to review actions of the director or local board. In doing so, it adds words to the statute by requiring that before a party may seek an order that the department “perform an act,” there must first be “a final decision that substantially affects the applicant‘s property or other legal rights.” Majority opinion at ¶ 1.
{156} To accomplish this result, the majority phrases the issue before us as “whether a license applicant may appeal a determination that the license application is incomplete.” Nevertheless, as the court of appeals noted, “Trans Rail‘s appeal requests that the ERAC order the Health Department to either issue or deny it a license to establish a construction and demolition debris facility.” 2007-
Ohio-7144, 2007 WL 4564303, ¶ 10. Trans Rail, in effect, is asking ERAC for an order compelling the health board to act by either issuing or denying the license. Each of these two actions is listed in the statutory definition of “act,” which includes “issuance, denial, modification, or revocation of a license.”
{157} In concluding that the second type of jurisdiction is ancillary to the first, the majority also fails to recognize the significance of the General Assembly‘s use of the word “or” in establishing the two types of jurisdiction given to ERAC. By allowing for an appeal for an order “vacating or modifying the action of the director or a local board of health, or ordering the director or board of health to perform an act,” the statute is phrased in a way that clearly states that parties may base their appeals on either the first or second type of jurisdiction provided for in
{158} In addition, by first requiring a final decision before a party may seek an order requiring the director or board to perform an act, the majority allows undue extension of the licensing process. A board of health or the director of environmental protection may continue to deem a license application incomplete and request additional information indefinitely. Indeed, in this case, Trans Rail alleges that it has repeatedly complied with the requirements for its license application, yet the director persists in stating that the application is incomplete and that no ruling may be made upon it. Unless “it is in some sense a final decision that substantially affects the appellant‘s property or other legal rights,” majority opinion at ¶ 31, the licensing entity‘s lack of decision will continue to evade appellate review under the majority‘s reading of
{159} Because the requirement of final action is not set forth within
PFEIFER, J., concurs in the foregoing
Morganstern, MacAdams & DeVito Co. and Michael A. Partlow, for appellee.
Ronald James Rice Co., L.P.A., and Robert C. Kokor, for appellant.
Richard Cordray, Attorney General, Benjamin C. Mizer, Solicitor General, Kimberly A. Olson, Deputy Solicitor, and Sari L. Mandel, Assistant Attorney General, urging reversal for amicus curiae state of Ohio.
Ulmer & Berne, L.L.P., Robert J. Karl, and Sherry L. Hesselbein, urging reversal for amicus curiae Hubbard Environmental and Land Preservation.
Frost Brown Todd, L.L.C., and Christopher S. Habel, urging affirmance for amicus curiae National Solid Waste Management Association.
Walter & Haverfield, L.L.P., Michael A. Cyphert, and Michael Schmeltzer, urging affirmance for amicus curiae Construction and Demolition Association of Ohio, Inc.