Ohio Supreme Court Rules On Towers

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"State's high court says townships can't regulate cell-phone structures

Published Friday, March 26, 1999

BY GEORGE DAVIS AND KYMBERLI HAGELBERG

Akron Beacon Journal staff writers

The Ohio Supreme Court has ruled that a wireless communications company is a public utility, and therefore is not subject to the zoning regulations many townships have been using to dictate the placement of cellular towers. The ruling, based on a Plain Township case, is expected to have a major impact on conflicting lower court decisions across the state.

The cell towers still will not be permitted in residential areas, according to Jay Wuebbold, public information officer for Ohio's top court.

Fights over cell towers have escalated in the last couple of years as officials and residents in several townships statewide took their objections to court. They were opposed to the large structures that allow cell phones to respond to pages and to receive and transmit digital data to computer networks. Opponents of the towers have said they devalue property, are eyesores and are possibly dangerous.

The high court ruling on Wednesday upheld a 5th District Court of Appeals decision in favor of AT&T Wireless Inc., saying it is a public utility.

Ohio law exempts public utilities from township zoning regulations in most cases.

Towers and antennas currently are located in Ohio Department of Transportation right of ways and on top of commercial buildings and schools.

If a wireless company has a case pending in a lower court or is considering appeal of a ruling, attorneys should file a motion of supplemental information citing the Plain Township ruling as precedent, Wuebbold said.

The decision pleased a Medina County farmer while at the same time displeasing his neighbors.

``I'm glad it has gone through the system,'' said James Berry. The Sharon Township farmer was sued by neighbors Janet and Roger Gray because he allowed a 250-foot cellular phone tower and a 100-foot communications tower to be placed on his property, within 850 feet of the Grays' home.

``There hasn't been one (other) complaint about the tower,'' Berry said yesterday. ``Public reaction has been very favorable.''

The Grays said they bought their Ridge Road home in Wadsworth Township specifically because they liked the view of unspoiled farmland.

``We still feel very strongly that our rights were violated,'' Janet Gray said. ``We are very disappointed in the ruling, although it does give us and other private citizens clear guidelines as to which state statutes pertain to tower placement and a framework for recourse when these laws are violated.''

In February 1997, Plain Township Zoning Director Nicholas R. Campanelli obtained an injunction to keep AT&T Wireless from building a 165-foot communications tower on township land along Fulton Drive Northwest zoned for general business.

A Stark County Common Pleas Court judge ruled that AT&T was subject to township zoning laws. That ruling was overturned in December 1998 by the court of appeals.

Before the lower court's ruling was overturned, AT&T Wireless moved the tower several hundred feet east onto a Ohio Department of Transportation right-of-way between the Fulton Drive off-ramp and Interstate 77.

``We will have to talk with our client (Plain Township), but we wouldn't be recommending that they appeal this decision,'' said Paul Mastriacovo, chief counsel for Stark Prosecutor Robert D. Horowitz.

``I don't think there are any issues that would be reviewable by the U.S. Supreme Court.''

Richard Kuhn, the Grays' attorney in the Berry case, said there are still valid issues to be argued.

``The way the statute reads is that a public hearing must be held if a tower is proposed in a residential area,'' Kuhn explained. ``If there's an objection at the hearing, the township must rule. With the Grays, none of those things took place.''

Northeast Ohio anti-tower activist Ann Shirreffs -- who opposes cell towers for health reasons -- also was unhappy with the ruling. ``I think big business has jammed this one down our throats,'' she said.

``All I can say is that I don't think any human being is knowledgeable enough to make a decision where the effect could be unknown for the rest of our lives, and our children's lives. I wouldn't want to go out on a limb like that for future generations.''

Chris Dunn, Chicago-based regional director of external affairs for AT&T Wireless, said the decision means his corporation will be able to ``continue to find the least obtrusive, best possible sites for our antennas. This allows us to streamline the process of getting building permits.'' ..."

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