SprintCom, Inc. v. Scott Weckbacker, Zoning Inspector

 

 

IN THE SUPREME COURT OF OHIO

 

 

SPRINTCOM, INC.,                                      )           On Appeal from the Stark

                                                                        )           County Court of Appeals

                        Appellant,                                 )           Fifth Appellate District

                                                                        )

v.                                                                                                                   )           Court of Appeals

)           Case No. 2006 CA 00033

SCOTT WECKBACHER, ZONING              )

            INSPECTOR,                                      )          

                                                                        )          

            Appellee.                                  )          

 

 

                                                                                                                                   

 

MEMORANDUM OF SPRINTCOM, INC. IN SUPPORT OF JURISDICTION

                                                                                                                                   

 

Benjamin J. Ockner (0034404)                                     Charles D. Hall, III, Esq.

            (Counsel of Record)                                         Perry Township Law Director

Berns, Ockner & Greenberger, LLC                             610 Market Avenue North

3733 Park East Drive, Suite 200                                   Canton, Ohio  44702

Beachwood, Ohio 44122                                            

                                                                                    (330) 453-2336

(216) 831-8838                                                           Fax: (330) 453-2919

Fax: (216) 464-4489                                                    E-mail:  halllawfirm@neo.rr.com

E-mail:  bockner@bernsockner.com                            

                                                                                    Counsel for Appellee

Counsel for Appellant SprintCom, Inc.                      Scott Weckbacher

 

David Simiele, Esq.

Krugliak, Wilkins, Griffiths & Dougherty Co., L.P.A.

4775 Munson Street N.W.

Canton, Ohio  44735

 

(330) 497-0700

Fax: 330-497-4020

E-mail:  dsimiele@kwgd.com

 

Counsel for Waikem Realty

 


Table of Contents

THIS CASE IS OF PUBLIC AND GREAT GENERAL INTEREST. 1

 

Statement of The Case and Facts. 7

 

Argument in Support Of Propositions of Law.. 10

 

Proposition of Law No. 1:  In A Township That Has Adopted A Zoning Resolution With A Provision Which Clearly Exempts Certain Lands From Zoning And That Provision Is Neither Modified Nor Repealed Elsewhere In The Resolution, Then The Township Has No Zoning Authority Over The Exempt Lands... 10

 

Proposition of Law No. 2:  In The Absence Of Controlling Ohio Supreme Court Authority, A Court of Appeals May Overrule Its Own Prior Decision Where (1) The Decision Was Wrongly Decided At That Time, Or Changes In Circumstances No Longer Justify Continued Adherence To The Decision, (2) The Decision Defies Practical Workability, And (3) Abandoning The Precedent Would Not Create An Undue Hardship For Those Who Have Relied Upon It.  (Westfield Ins. Co. v. Galatis, 100 Ohio St. 3d 216, 2003 Ohio 5849, paragraph one of the syllabus, followed)... 13

 

Conclusion. 15


Certificate of Service

 

Appendix                                                                                                                    

 

 Opinion and Judgment Entry, Weckbacher v. SprintCom, Inc. (Stark App. August 21, 2006), Case No. 2006 CA 00033  A

 

Judgment Entry, Weckbacher v. SprintCom, Inc.

(Stark C.P. January 18, 2006), Case No. 2005 CV 03924. B

 

 

 

 


THIS CASE IS OF PUBLIC AND GREAT GENERAL INTEREST

 

            Ohio’s Courts of Appeals should reach the same holding when applying settled state law to the same operative facts in two different cases.  In this case, the same Court of Appeals panel applied the same settled state law to the same operative facts and reached opposite holdings in two cases decided just three years apart, and offered no explanation for its decision.  A more vivid example of the arbitrary administration of justice is difficult to imagine.  But this is a case of public and great general importance for other reasons, as well.

            Legislation and regulations are not immune from judicial review, but their goals should not be thwarted by arbitrary judicial interference.  This case concerns a goal shared by Congress, President Bush, and Governor Taft, one whose beneficiaries include elementary and secondary schools, health care providers, and libraries – to ensure the availability of advanced telecommunications service throughout this State, including its rural areas and townships.

            Appellant SprintCom, Inc. (“SprintCom”) is a public utility. It was building a telecommunications tower on residentially zoned land in Perry Township (“Township”) when, in November 2005, the Township’s zoning inspector ordered it to stop work for lack of zoning approval, and filed an action for declaratory and injunctive relief.  The Township’s zoning resolution (“Resolution”) clearly exempts the land and structures of public utilities and essential services from the Township’s zoning authority.  The issue below was whether SprintCom, as a public utility, was required to comply with regulations in the Resolution purporting to regulate telecommunications towers but which neither repealed nor modified the public utilities exemption.

            Presented with the same operative facts in Fields v. Bloom Township Board of Trustees (Fairfield App. 2003), 154 Ohio App. 3d 416, 2003-Ohio-5018, the Court of Appeals held that SprintCom’s construction of a telecommunications tower on residentially-zoned land in Bloom Township was exempt from that township’s zoning authority.[1]  SprintCom’s construction of its telecommunications tower in the Township resumed just two years after Fields.

            The Trial Court below held that the public utility exemptions in the Resolution were irrelevant to the issue of whether SprintCom’s status as public utility exempted it from the Township’s zoning authority, and that SprintCom was required to comply with the telecommunications tower regulations in the Resolution.  On appeal, the same panel that decided Fields affirmed the Trial Court’s decision without mentioning Fields or explaining its decision to ignore or overrule Fields.  The opposing conclusions in this case and Fields deprive both of utility.

            This case is of public and great general interest in two respects: it concerns the availability of advanced telecommunications service throughout this State, including its rural areas and townships many of which have no zoning controls, consistent with goals shared by Congress, the President and Governor Taft; and it demonstrates the need for this Court to provide additional guidance to the Courts of Appeals as to when and how they may overturn their own precedents.

The goal of affordable access to new telecommunications technology throughout the Nation and Ohio.

 

            Congress enacted the Telecommunications Act of 1996 (“TCA”)[2] to promote competition and higher quality in American telecommunications services and to encourage the rapid deployment of new telecommunica­tions technologies.[3]  The TCA directs the Federal Communications Commission (“FCC”) and each of the States “to encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans,”[4] and calls for the provision of such services to elementary and secondary schools and classrooms, health care providers, and libraries.[5]  The FCC reports periodically to Congress on the state of competition within the wireless telecommunications industry and on the status of the deployment of advanced telecommunications services nationally and in rural areas.[6]

            President Bush also calls for the rapid deployment of advanced telecommunications capability throughout the United States.  On April 26, 2004, the President announced a series of measures intended “to inspire a new generation of American innovation” including a directive to make affordable access to broadband technology[7] available all over the country by 2007.[8]

            On September 26, 2002, Governor Taft announced the “Ohio Broadband Initiative” as part of his Third Frontier Project, which would address “an improved telecommunications infrastructure, particularly in rural areas,” among other things.[9]  The next day, Governor Taft announced that broadband access would be made available to 34 Appalachian communities by December 2003.[10]

The challenge of delivering advanced telecommunications service to Ohio’s townships

 

            The siting of infrastructure needed to deploy advanced telecommunications services involves complex technical and capital expenditure requirements.[11]  Without adequate network coverage or capacity, wireless users will experience busy signals, dropped calls and bad connections.  The only way to improve coverage and capacity is to add cell sites.[12]

            Providing access to broadband technologies to Ohio’s townships and rural areas is an enormous task.  There are more than 1,300 townships in Ohio accounting for approximately 90% of the land in this State.[13]

            A recent survey of Ohio townships revealed that more than 40% of Ohio’s townships have no zoning controls in place.[14]  As efforts to deploy advanced telecommunications capability throughout the Nation and Ohio persist, those townships will need guidance if they want to have any say in the siting of telecommunications infrastructure.[15]

Progress in the rural deployment of advanced telecommunications services

 

            The FCC’s most recent annual report on competition in the mobile telephone market concludes that wireless telecommunications service providers are competing effectively in rural areas, but cautions that the geographical area and population coverage data upon which its analysis rests are overstated “to some unknown and unavoidable degree.”[16]  Some FCC Commissioners, moreover, have not been satisfied with progress in the deployment of advanced telecommunications services.  Two commissioners dissented from the Fourth Availability Report issued in September 2004, citing serious challenges for continuing deployment of broadband technologies, particularly in rural areas, in light of recent data indicating that the United States ranked 11th worldwide in the penetration of broadband technology:

Congress directed this Commission to determine whether advanced telecommunications capability is being deployed to all Americans in a reasonable and timely fashion….  Unfortunately, there are serious warning signs that we are falling behind.

*          *          *          *          *

I am also concerned about the prospects for rapid deployment to communities traditionally unserved by market forces alone.[17]

 

            Another Commissioner was blunter in his assessment:

Broadband is our central infrastructure challenge. High-capacity networks are to the Twenty-first century what roads, canals and railroads were to the Nineteenth and highways and basic telecommunications were to the Twentieth. Our economy and our future will be driven by how quickly and completely we deploy broadband.

*          *          *          *          *

When consumers in other countries get so much more bang for their broadband buck than we do, something has to change.

*          *          *          *          *

When we find ourselves eleventh in the world, something has gone dreadfully wrong….[18]

 

            The statewide deployment of broadband services in Ohio still has a way to go, particularly in rural areas.[19]  There are still many unserved and underserved areas in rural and small communities across the State while more and more farmers, local governments, health care facilities and other businesses in rural communities demand faster and better access to the Internet to compete in a high-tech society.[20]

            Congress has called for specific, predictable and sufficient Federal and State mechanisms to foster the deployment of advanced telecommunications service.[21]  The decision below is hardly such a “predictable” mechanism.  SprintCom respectfully urges this Court to accept jurisdiction to consider that decision because of its damaging impact on that goal.

STATEMENT OF THE CASE AND FACTS

 

            SprintCom is a public utility providing telecommunication services in Stark County and elsewhere in Ohio and across the country pursuant to a license from the FCC and a certificate of public convenience and necessity from the Public Utilities Commission of Ohio (“PUCO”).  In October 2002, Waikem Realty, Inc. (“Waikem”) agreed to lease certain real property located at 3236 12th Street (“Property”) in the Township to SprintCom for the construction of a telecommunications tower.  The Property is zoned for residential use, and is improved by a golf driving range.

            In 2003, SprintCom commenced construction of the tower and drilled deep foundations pursuant to permits obtained from the Stark County Building Department.  The County subsequently asked SprintCom to revise its plans.  SprintCom agreed, stopped its construction, and revised the plans.  In 2005, SprintCom obtained new permits form the County and resumed construction.  On November 3, 2005, Appellee Scott Weckbacher, the Township’s zoning inspector, delivered a “Stop Order” to the Property demanding that SprintCom’s contractor cease construction of the tower for lack of zoning approval.  By that time, the tower was partially erected.  Mr. Weckbacher commenced the underlying civil action on November 10, 2005, by filing a Complaint for declaratory and injunctive relief alleging that SprintCom’s construction of the tower violated the Township’s Resolution.

            In fact, the Resolution exempted SprintCom’s construction of the tower from zoning compliance in two ways.  First, the Resolution defines “Public Utility” as: “Any … corporation … fully authorized to furnish and furnishing to the public … telephone, …and any other similar public utilities.”[22]  SprintCom is a public utility.  The Resolution itself recites that it “confers no power in respect to the location, erection, construction, … of any buildings, or structures of any public utility…whether publicly or privately owned, or the use of land by any public utility…for the operation of its business.”[23]  As a public utility under the Resolution, SprintCom was exempt from the Township’s zoning authority by operation of the Resolution.

            Second, the Resolution defines “essential service” to include the “erection, construction, alteration, or maintenance by public utilities…of…communications … systems or sites, including poles, wires, … and other similar equipment and accessories in connection therewith.[24]  SprintCom’s construction of the tower as part of a “communication system” is an “essential service.”  Section 602.11 of the Resolution unequivocally states that the Township intends “to exempt such essential services from the application of the[] regulations” in the Resolution.  Therefore, SprintCom was exempt from the Resolution as an essential service.

            The Trial Court held a hearing on November 18, 2005, as to whether SprintCom’s construction of the tower was exempt from the Township’s zoning authority by the terms of the Resolution.  By Judgment Entry of December 16, 2005, (the “December 2005 Entry”) the Trial Court held that SprintCom’s construction of the tower was subject to the telecommunications tower regulations in Section 604 of the Resolution.[25]  Though it found that SprintCom is a public utility,[26] the Trial Court concluded that Sections 310.2 and 602.11 of the Resolution (which clearly exempt public utilities from zoning) were “not germane.”[27]  At a hearing on January 17, 2006, the parties agreed that the matter was ripe for final determination based upon the pleadings, briefs, and materials previously submitted to the Trial Court, and that the hearing on Mr. Weckbacher’s claims for injunctive relief would be consolidated with the merits of the entire action.  By Judgment Entry dated January 18, 2006,[28] the Trial Court reiterated the conclusions in its December 2005 Entry and found that SprintCom had not complied with the Resolution in commencing construction of the tower.[29]  The Trial Court entered final judgment enjoining further construction of the tower, denying the remaining claims for relief asserted by Mr. Weckbacher, and declaring that there was no just cause for delay.

            SprintCom timely filed a Notice of Appeal on January 31, 2006, and requested that the matter be placed on the Court of Appeals’ accelerated docket given that SprintCom’s construction was well underway and that the same Court of Appeals in Fields v. Bloom Township (Fairfield App. 2003), 154 Ohio App. 3d 416, 2003-Ohio-5018, had already considered the exact same issues in the context of the same operative facts and held that SprintCom was not subject to the provisions in that zoning resolution.  On August 21, 2006, the same panel of the Court of Appeals that decided Fields issued an Opinion and Judgment Entry affirming the Trial Court’s January 2006 Entry which was completely contrary to Fields.[30]  The Opinion never mentions Fields.  Observing that Section 310.2 of the Resolution “mimics” the Revised Code,[31] the Court of Appeals decided that the “crux of the matter” before it concerned “the more specific Resolution Section 604.1, captioned ‘Telecommunications Towers and Facilities.’”  Citing App. R. 11.1 regarding the accelerated docket,[32] the Court proffered no further explanation for its holding.

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

PROPOSITION OF LAW NO. 1:  In A Township That Has Adopted A Zoning Resolution With A Provision Which Clearly Exempts Certain Lands From Zoning And That Provision Is Neither Modified Nor Repealed Elsewhere In The Resolution, Then The Township Has No Zoning Authority Over The Exempt Lands.

 

            Townships have only that authority which is bestowed on them by the General Assembly.[33]  Townships are authorized, but not required, by R.C. 519.02 to adopt zoning resolutions.[34]  Restrictions on the use of real property in a township zoning resolution cannot be extended to include limitations not clearly prescribed therein.[35]

            Townships which have adopted zoning resolutions are authorized, but not required, by R.C. 519.211 to include in those resolutions regulations governing the telecommunications towers of public utilities engaged in the provision of telecommunications services when such towers are proposed to be located in areas zoned for residential use.[36]  Not all users of telecommunications towers, however, are public utilities.[37]  If a township has adopted a zoning resolution which clearly exempts public utilities from that township’s zoning authority, then any regulations that township adopts in order to control telecommunications towers which do not clearly and expressly apply to the telecommunications towers of public utilities cannot be applied to the telecommunications towers of public utilities.

            Both the Trial Court and (apparently) the Court of Appeals seem to have concluded that SprintCom was subject to the telecommunications tower regulations in Section 604 of the Resolution because it was building a telecommunications tower.  That reasoning is flawed.  A 1,000 square foot detached garage located on a parcel of land in a township is not subject to township zoning if it is owned by a public utility.  An identical 1,000 square foot garage located on an adjacent parcel within the same district is subject to zoning if it is owned by a private homeowner.  The exemption of the land, buildings and structures of public utilities from township zoning authority is premised on the status of such entities as public utilities, not on the type of structures they intend to build.  Therefore, given SprintCom’s status as a public utility and the Resolution’s clear explicit exemptions of public utilities from the Township’s zoning authority, the facts that SprintCom is building a telecommunications tower and that the Township has adopted regulations to control telecommunications towers does not mean that SprintCom’s telecommunications tower is subject to those regulations.[38]

            The exemptions in Sections 310.2 and 602.11 of the Resolution can co-exist with the telecommunications tower regulations in Section 604; accordingly, to the extent practicable they must be applied to give effect to all of their parts.[39]  In fact, these provisions cannot be in conflict.  The telecommunications towers that the Township has chosen to regulate are those which can be located in the Township’s residential areas and non-residential areas.  R.C. 519.211 clearly prohibits the regulation of public utilities’ telecommunications towers outside of the Township’s residential areas.  Therefore, the only towers the Township can regulate are those owned or operated by entities other than public utilities.  The provisions in Section 604 simply cannot be applied to SprintCom’s tower.[40]

            Accordingly, SprintCom respectfully urges this Court to accept jurisdiction to review and reverse the decisions below.

PROPOSITION OF LAW NO. 2:  In The Absence Of Controlling Ohio Supreme Court Authority, A Court of Appeals May Overrule Its Own Prior Decision Where (1) The Decision Was Wrongly Decided At That Time, Or Changes In Circumstances No Longer Justify Continued Adherence To The Decision, (2) The Decision Defies Practical Workability, And (3) Abandoning The Precedent Would Not Create An Undue Hardship For Those Who Have Relied Upon It.  (Westfield Ins. Co. v. Galatis, 100 Ohio St. 3d 216, 2003 Ohio 5849, paragraph one of the syllabus, followed).

 

            The doctrine of stare decisis is a doctrine applying to future cases where the facts of a subsequent case are substantially the same as a former case.[41]  The facts of this case are virtually identical to the facts in Fields: The public utility language in Section 202 of Bloom Township’s zoning resolution[42] is identical to Section 310.2 of the Township’s Resolution.  Bloom Township’s zoning resolution included regulations purporting to regulate telecommunications towers.  Perry Township’s does, too.  Bloom Township’s telecommunications towers regulations purported to apply in Bloom Township’s residential and non-residential areas.[43]  So do Perry Township’s.[44]

            SprintCom resumed construction of its tower approximately two years after Fields was decided.  Prior to being served with the “Stop Order,” SprintCom completed a substantial amount of work and incurred hundreds of thousands of dollars in construction and other fees in the process.  Was it reasonable for SprintCom to conclude that its tower was exempt from the Township’s zoning authority?  It was, unless of course the doctrine of stare decisis no longer means anything.

            The doctrine of stare decisis is designed to provide continuity and predictability in our legal system.[45]  Adherence to stare decisis is “a means of thwarting the arbitrary administration of justice as well as providing a clear rule of law by which the citizenry can organize their affairs.”[46]

The doctrine of stare decisis provides solid rocks upon which men and women can build and arrange their affairs with confidence.  The doctrine serves to remove the capricious element from the law and lends stability to society.  Stare decisis is a strong tie which our future has with our past.[47]

 

Accordingly, any departure from the doctrine of stare decisis demands special justification.[48]

            The Court of Appeals provided no justification for its inexplicable about-face.  While Appellate Rule 11.1 permits the Courts of Appeals to provide a “brief and conclusory” response to assignments of error in cases assigned to the accelerated docket, the rule is certainly not mandatory.[49]  If the Court of Appeals engaged in the analysis prescribed by Galatis, it could not have reached the outcome it reached.  Regardless of the outcome, Galatis would have compelled the Court of Appeals to explain its reasoning so that SprintCom and others who would be guided by the Courts’ decisions would have some understanding of why Fields was no longer good law.

              SprintCom, therefore, urges this Court to impose upon the Courts of Appeals the same important burden it has assumed in deciding whether to overrule precedent.

CONCLUSION

            For the foregoing reasons, SprintCom respectfully urges this Court to accept jurisdiction to consider this appeal and to reverse the decisions of the Court of Appeals and the Trial Court below.

                                                            Respectfully submitted,

 

                                                                                                                                   

                                                            Benjamin J. Ockner (0034404)

                                                                  (Counsel of Record)

                                                            Berns, Ockner & Greenberger, LLC

                                                            3733 Park East Drive, Suite 200

                                                            Beachwood, OH 44122

                                                            Telephone: (216) 831-8838

                                                            Facsimile: (216) 464-4489

                                                           

                                                            Attorneys for Appellant SprintCom, Inc.


CERTIFICATE OF SERVICE

            A copy of the foregoing Memorandum in Support of Jurisdiction was served on Charles D. Hall, III, Esq., Perry Township Law Director, Hall Law Firm, 610 Market Avenue North, Canton, Ohio 44702, Counsel for Appellee Scott Weckbacher, and David Simiele, Esq., Krugliak, Wilkins, Griffiths & Dougherty Co., L.P.A., 4775 Munson Street N.W., P.O. Box 36963, Canton, Ohio  44735, Counsel for Waikem Realty, by regular U.S. mail, this 5th day of October, 2006.

 

                                                                                                                                   

                                                            Benjamin J. Ockner



[1] Bloom Township had adopted a zoning resolution which, like the Perry Township Resolution, included explicit language clearly exempting public utilities from Bloom Township’s zoning control.  Like the Perry Township Resolution, the Bloom Township resolution included provisions purporting to regulate telecommunications towers in residential and non-residential areas of the township.  Citing SprintCom’s status as a public utility, the Bloom Township resolution’s exemption of public utilities, the absence from the Bloom Township resolution of any language repealing or modifying that exemption, and Bloom Township’s lack of authority (by operation of R.C. 519.211) to regulate the telecommunications towers of public utilities outside of areas zoned for residential use, the Court held that SprintCom was not subject to the telecommunications tower regulations in the Bloom Township resolution.

[2] Public Law No. 104-104, 110 Stat. 56.

[3] City of Rancho Palos Verdes v. Abrams (2005), 544 U.S. 113, 115.

[4] TCA, Section 706(a) (emphasis added).  Section 706 is reproduced in the notes to 47 U.S.C. § 157.  See also 47 U.S.C. §254(b)(3) (calling for access to advanced telecommunications services for consumers “in all regions of the Nation.”

[5] 47 U.S.C. §254(b)(6).  “Advanced telecommunications capability” is “high-speed, switched, broadband telecommunications capability that enables users to originate and receive high-quality voice, data, graphics, and video telecommunications using any technology.”  TCA, Section 706(c)(1).

[6] The FCC’s last report to Congress on the status of the deployment of advanced telecommunications services was issued in September 2004.  See Availability of Advanced Telecommunications Capability in the United States, FCC 04-208, GN Docket No. 04-54, Fourth Report to Congress (September 9, 2004) (found at “http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-04-208A1.pdf”) (“Fourth Availability Report”).  The FCC’s most recent report on competition in the wireless industry was submitted in September 2006.  Annual Report and Analysis of Competitive Market Conditions With Respect to Commercial Mobile Services, W.T. Docket No. 06-17 (September 29, 2006), (found at “http://hraunfoss.fcc.gov/edocs_public/

attachmatch/FCC-06-142A1.pdf”) (“Eleventh Annual Competition Report”).

[7] “Advanced telecommunications capability,” “advanced services,” and “broadband” have come to be used interchangeably, see, e.g., Fourth Availability Report, at 12, with many mobile voice operators now offering mobile data services using the same spectrum, network facilities, and customer equipment.  Eleventh Annual Competition Report, ¶17.

[8] See A New Generation of American Innovation (April 2004) (found at “http://www.

whitehouse.gov/infocus/technology/economic_policy200404/innovation.pdf”).

[9] News Release, “Governor Announces Broadband Initiative - Effort to Ensure Statewide Access to High-Speed Data Lines” (September 26, 2002) (found at “http://governor.ohio.gov/releases/092602broadband.htm”).

[10] News Release, “Taft Brings Broadband To Ohio's Appalachian Communities - Unveils Results of the ‘Access Appalachia’ Survey” (September 27, 2002) (found at “http://governor.ohio.gov/releases/Archive2002/092702accessapp.htm”).

[11] CTIA, The Wireless Association®, Effective And Timely Wireless Antenna Siting: Critical To Continued Growth And Deployment Of Services To Consumers (April 2006), (found at “http://files.ctia.org/pdf/21AntennaandTowerSiting.pdf “), at 2.

[12] Id. at 1.

[13] J. Reece and E. Irwin, Land Cover In Ohio’s Townships: An Analysis Of Township Land Cover And Population Change (February 2002) (found at “http://aede.ag.ohio-state.edu/programs/exurbs), at 6.

[14] See J. Evans-Cowley and M. Gough, Land Use Planning and Zoning in Ohio Townships, 44 Journal of Extension, Art. No. 4RIB5 (August 2006).

[15] Perry Township and Bloom Township are not unique.  Union Township in Clermont County has adopted a zoning resolution (found at “http://www.union-township.oh.us/

zoning/resolution/Union%20Township%20Zoning%20Resolution.pdf”) which, like Perry Township’s, defines “essential services” to include the erection of communications infrastructure (Union Township Zoning Resolution Appendix A, ¶40), clearly exempts them from the township’s zoning authority (Id. Sec. 502), and includes regulations for telecommunications towers.  (Id., Sec. 612).  Perry Township in Lake County has adopted a zoning resolution which, like the Township’s here, purports to regulate telecommunications towers in that township’s industrial and manufacturing districts.  (Perry Township, Lake County, Zoning Resolution Sec. 213.11, found at “http://www.perrytownship-lake.com/ZoningRegs4.htm”).

[16] Eleventh Annual Competition Report, ¶14, 88.

[17] Fourth Availability Report at 7 (Commissioner Jonathan Adelstein dissenting).

[18] Fourth Availability Report at 5 (Commissioner Michael Copps dissenting).

[19] The FCC reports a nationwide penetration rate (the ratio of mobile telephone service subscribers in an “economic area” to the population of that area based on the 2000 Census) for mobile telephone service of roughly 71 percent in its September 26, 2006 report.  Eleventh Annual Competition Report, ¶213.  Ohio’s penetration rates range from a high of 72 percent (in the Columbus market) to a low of 49 percent (in the Wheeling, West Virginia market which includes parts of Ohio).  Id.

[20] Buckeye Farm News, Government working to bring broadband to rural communities (Ohio Farm Bureau Federation, May 15, 2006).

[21] 47 U.S.C. §254(b)(5).

[22] Resolution, Art. IV at 15.

[23] Resolution, Sec. 310.2 (emphasis added).

[24] Resolution, Art. IV, at 11. 

[25] December 2005 Entry at 5.

[26] December 2005 Entry at 3.

[27] December 2005 Entry at 4 (emphasis added).

[28] (“January 2006 Entry,” copy attached as Exhibit B). 

[29] January 2006 Entry at 5.

[30] A copy of the Court of Appeals’ Opinion and Judgment Entry (“Opinion” or “Op.”) is attached as Exhibit A.

[31] Op., ¶ 12.

[32] Op., ¶ 16-18.

[33] Board of Township Trustees of Bainbridge Township v. Funtime, Inc. (1990), 55 Ohio St.3d 106, Syllabus Para. 1.

[34] Barkheimer v. Bethlehem Township (Stark App. 1999), 1999 Ohio App. LEXIS 763, at *7 (“R.C. 519.02 by its very language anticipates not all of a township may be subject to a zoning resolution….”).

[35] Symmes Township Board of Trustees v. Smyth (2000), 87 Ohio St. 3d 549, 554.  Indeed, exemptions from such restrictive provisions are liberally construed.  State ex rel. Moore v. Dauben (1919), 99 Ohio St. 406, Syllabus, Para. 1.

[36] Plain Township Board of Trustees v. Palmer (Wood App. 2000), 2000 Ohio App. LEXIS 1045, at *4 (“While R.C. 519.211(C) gives townships the authority to regulate public utilities, nothing in the statute requires them to do so.”)

[37] Trustees of Washington Township v. Davis (2002), 95 Ohio St. 3d 274, 277, 2002 Ohio 2123.

[38] The telecommunications tower regulations in Section 604 of the Resolution neither repeal nor modify the explicit exemptions in Sections 310.2 and 602.11.  To the contrary, Section 604.2(A)(16)(b) expressly exempts any antennae “placed upon an existing electric utility high tension tower, water utility tower, a utility building or other structure” (emphasis added), and  Section 604.2(B)(4) exempts telecommunications towers “to be located, erected, constructed, reconstructed, changed altered, maintained, added to, used, or enlarged on an existing wireless telecommunication tower, electric utility high tension tower, water utility storage tank, utility building or other structure” in the Township’s Non-Residential, M-D Multi-Use/Overlay, and I-D Industrial Districts.  (Emphasis added.).

[39] See, e.g., State v. Knepp (Stark App. 2001), 2001 Ohio App. LEXIS 1745; State v. Arnold (1991), 61 Ohio St. 3d 175, 178.

[40] The Resolution was first effective in 1958.  Section 604 was added in May 1997.  The Resolution has been amended three times since.  Despite the passage of numerous amendments to R.C. 519.211, the announcement by this Court of several significant decisions bearing directly on the authority of townships under R.C. 519.211, and the announcement of several decisions by the Court of Appeals, the exemptions in Sections 310.2 and 602.11 of the Resolution were never repealed, nor modified.

[41] City of Rocky River v. SERB (1989), 43 Ohio St. 3d 1, 5.

[42] Fields, P 13.

[43] Fields, P. 23. 

[44] Resolution, Section 604.  Bloom Township’s zoning resolution recited that the telecommunications facilities to which its provisions applied were deemed by the township to be “non-essential services and are not public utilities.”  Fields, P19.  That no such language appears in the Township Resolution is irrelevant because the zoning resolutions of both Bloom Township and Perry Township contain identical language exempting the buildings and structures of public utilities from regulation, and because both townships chose to exercise zoning authority over telecommunications towers in residential and non-residential zoning districts alike.

[45] Galatis, 2003 Ohio 5849, P 43.

[46] Id.

[47] City of Rocky River, 43 Ohio St. 3d at 5.

[48] Galatis, P 44.

[49] Even in cases assigned to a Court of Appeals’ accelerated docket, stare decisis plays too substantial a role in our justice system for a Court of Appeals to demur from explaining a departure from the doctrine simply because the rules might on their face allow such avoidance.


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