City of Dublin v. State

{¶ 42} Being unable to join the majority's disposition of Dublin's second assignment of error, I must respectfully concur in part and dissent in part.

{¶ 43} The basis for my disagreement is that I do not believe that the statutory scheme in question is a general law for purposes of the Home Rule Amendment. That test requires that we consider (1) whether the statute is part of a statewide and comprehensive legislative enactment; (2) whether it applies to all parts of the state alike and operates uniformly throughout the state; (3) whether the statute sets forth police, sanitary, or similar regulations, rather than purports to grant or limit the legislative power of a municipality to set forth police, sanitary, or similar regulations; and (4) whether the statute prescribes a rule of conduct on citizens generally. Marich v. Bob Bennett Constr. Co.,116 Ohio St.3d 553, 2008-Ohio-92, 880 N.E.2d 906, ¶ 16. The majority opinion focuses entirely on Dublin's argument regarding the statute's uniform operation throughout the state and does not address the remaining portions of the test.

{¶ 44} I believe that the statutory scheme setting forth the state's building code fails the general-law test because it merely purports to limit the ability of municipalities to adopt and enforce building-code provisions that conflict with the state code. R.C. 3781.01(C)(2)(a) invalidates a conflicting local building code when "the regulation is not necessary to protect the health or safety of the persons within the local governing authority's jurisdiction." The application of this provision places a burden on a local jurisdiction such as Dublin, which wants to impose building standards that it believes are stricter and safer than the provisions of the state code, to prove that the stricter standard is necessary to protect the health or safety of the citizens of Dublin. I believe this provision merely purports to limit the ability of local jurisdictions to make their own determinations regarding local police, sanitary, or similar regulations.

{¶ 45} The Supreme Court of Ohio has stated that when applying the third part of the general-law test, a statute that prohibits a municipality from exercising its home-rule powers must serve an overriding statewide interest.Clermont Environmental Reclamation Co. v. Wiederhold (1982), 2 Ohio St.3d 44, 2 OBR 587, 442 N.E.2d 1278. See alsoCanton v. State, 95 Ohio St.3d 149, 2002-Ohio-2005,766 N.E.2d 963. Promotion of health and safety would clearly be an overriding statewide interest; however, invalidation of a local regulation based on a determination that the regulation is not necessary to protect health or safety does not actually serve that interest, as would be the case if the statute called for invalidation of a regulation based on a determination that the proposed regulation harmed, rather than promoted, public health or safety. The state has not identified any other compelling statewide interest that would justify limiting the ability of local jurisdictions to set forth local police, sanitary, or other such regulations.

{¶ 46} For the above stated reasons, I would sustain Dublin's second assignment of error and overrule the remainder of the city's assignments of error as moot. I concur in overruling the state's cross-assignment of error.