by Andrea Cole
Stow -- The city's law department plans to request a permanent injunction against TRC Industries Inc. to ensure the company does not emit an "offensive odor."
Deputy City Law Director Brian Reali said the city will submit the request to Judge Patricia Cosgrove in the Summit County Court of Common Pleas by June 1.
"We are asking the judge to permanently enjoin TRC from releasing a noxious odor," he said, adding the city will continue to monitor the company.
TRC's attorney, Tom Wiencek of Brouse & McDowell, said May 25 that he worked with city officials to set the terms of the injunction.
He said that the injunction "[will] recognize the amount of discharge into the air prior to April 16 was a nuisance and must be abated."
The date of April 16 will be included in the injunction because the company's equipment to reduce the odor had to be operating by then, according to conditions originally set by Cosgrove. After the city received numerous complaints from residents and businesses about an odor from the business, officials filed a request for a preliminary injunction against the business in March.
Wiencek said based on the terms he discussed with city officials, an injunction would allow the city "to reserve the right to go to court and seek a contempt of court charge if they don't think TRC is abiding by the injunction."
The injunction also will state TRC "reserves the right" to challenge the constitutionality of the city's offensive odor statute through the court, he said.
The city's statute states, "No person shall erect, continue, use or maintain a dwelling, building, structure ... for the exercise of a trade, employment or business ... which, by occasioning noxious exhalations or noisome or offensive smells, becomes injurious to the health, comfort or property of individuals or of the public."
"TRC did not violate any state or federal regulations," said Wiencek. "If Stow sets a standard where 10 residents, out of 30,000, can force a business to close by complaining, that is unconstitutional. I think the city would then be rezoning through the court. TRC is in a commercial zone, and is operating within its permitted use."
But Reali said he believes the city's ordinance is constitutional.
"It is not vague, and it's almost the same type of ordinance you would find in state law or federal law," he said.
TRC and city officials have agreed to meet Sept. 1 to evaluate the company's processes to ensure it is not emitting an odor.
"This isn't the end of the case, it's just another step in the process," said Reali. "We won't hesitate to go back to court if there is an offensive odor. It's difficult because it's a moving target. Different people are affected at different times."
According to Reali, the injunction also would require TRC to set up a hotline which residents can call if they believe the company is emitting an odor. TRC then would give the data from the hotline to the city on a monthly basis, he said.
Stow Law Director Joe Haefner said the number of calls the city receives about TRC has significantly decreased since the end of April.
"We are encouraged by their efforts to reduce the odor," he said. "We hope to continue to work with them."