Subject: (Newtons) Ohio tower litigation / court decisions (fwd)
Date: Fri, 4 Dec 1998 205954 -0600 (CST)
From: "Roy L. Beavers" <rbeavers@llion.org>
To: emfguru <rbeavers@llion.org>
--------------------------------------------------
---------- Forwarded message ----------
Date: Fri, 04 Dec 1998 19:29:03 -0500
From: Newtons at Fruitlands
To: rbeavers@llion.org
Subject: Ohio tower litigation / court decisions
> I thought that this story should go out so that everyone would have
easy access to it. It provides a clear picture of the disdain that these
companies have for the citizens and local governments across the nation. If
they really view themselves as "public utilities", why do they seek to
diminish the quality of life of the very public that they pretend to serve?
Power and money.
> If you would like to read what the real dangers are in declaring
wireless providers to be "public utilities", read Dean Starkman's piece in
the 12/2/98 Wall Street Journal entitled "Take and Give - Condemnation Is
Used to Hand One Business Property of Another." I consider this trend to be
one of the most frightening indicators that mega businesses and mega mergers
are out poaching constitutional safeguards in the name of profit and
competition.
>
> Dale Newton
>
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[Image] Court's call could clarify cellular towers' standing
Bath structure coming down, but justices weigh future of
others in Ohio
BY KATIE BYARD
[Books online!] Beacon Journal staff writer
As any homeowner upset over a cellular telephone tower
nearby will tell you: Once towers go up they stay up.
[Image]
However, a tower in Bath Township is an exception.
---------- Yesterday, workers began removing a 225-foot tower that
Published neighbors consider to be an eyesore after a court ruled
Wednesday, it violates the township's zoning code.
December 2, 1998,
in the Akron Also yesterday, the Ohio Supreme Court heard arguments on
Beacon Journal. a case involving a tower that was to be built in Stark
---------- County's Plain Township. The outcome of that case could
resolve conflicting lower court decisions over whether
the towers are exempt from zoning codes.
``Our case today could have bearing on towers throughout
the state,'' said Nick Campanelli, Plain Township zoning
inspector.
So far, there has been a confusing legal fight over the
towers, which have been cropping up all over the state.
The tower in Bath is being removed from a spot near
Interstate 77 and Ghent Road because the 9th District
Court of Appeals has ruled that the company that erected
the tower, Nextel Communications, failed to prove that it
qualifies as a public utility.
Ohio law exempts public utilities from local zoning
regulations.
However, in the Stark County case, the 5th District Court
of Appeals ruled last year that AT&T Wireless, which
sought to erect a tower in Plain Township, does qualify
as a public utility. Plain Township officials appealed
the 5th District Court ruling to the Ohio Supreme Court.
That appeal was heard yesterday, but a decision is not
expected until early next year.
Township officials and attorneys who represent townships
statewide are watching the Plain Township case, said
Charlie Hill, an attorney who represents a number of
townships in Stark County and has long argued that the
cellular telephone companies are not public utilities.
After homeowners in Plain Township objected, AT&T decided
to build the tower along Interstate 77 in Canton.
``I think everyone expects and hopes that the Supreme
Court will rule with a degree of finality on the issue
and the issue is: Are cellular telephone providers public
utilities and exempt from zoning or are they other than
public utilities and subject to zoning?''
Hill said the growing number of cellular telephone towers
has caused headaches for township officials statewide.
``Any township that has zoning has struggled with this
issue,'' he said.
Hill said that if the Supreme Court rules cellular
telephone companies are not public utilities, townships
could use the ruling to try to force companies to remove
towers. However, companies would no doubt fight efforts
to have towers removed with a new round of litigation,
Hill said.
AT&T officials could not be reached for comment.
Bath Township resident June Black is glad the court
battle over the Nextel tower is apparently over. The
tower, built on private property at 623 N.
Cleveland-Massillon Road, is 15 feet from Black's
property line and 75 feet from the kitchen in her Ghent
Road home near Interstate 77.
The Nextel tower shot up in late 1996. ``It should have
never been built next to anyone's residence,'' said
Black, who called the tower ugly. ``I sure will be glad
to see that thing out of here. Just sitting in my back
yard and looking at that thing was not a very desirable
situation.''
She said that other nearby homeowners have complained
about the tall, metal tower.
``It just looks like it was coming out of my chimney,''
she said.
Black, a retired tire model sculptor, lives in a township
area zoned for limited business uses. Wireless providers
argue that because they are public utilities, they have
free rein in such areas.
Nextel spokesman Dick Tosland, who works in the company's
office in Solon, declined to comment on the removal of
the Nextel tower in Bath.
The tower went up even though the Bath Township Board of
Zoning Appeals said Nextel is not a public utility when
it comes to township zoning rules. The board rejected the
tower because it is nearly seven times the maximum
allowable height of 35 feet.
Summit County Common Pleas Judge Jane Bond approved the
tower, while not specifically addressing the issue of
whether Nextel is a public utility. The township appealed
Bond's decision to the 9th District Court of Appeals.
In its July 1997 ruling, written by Judge John W. Reece,
the appeals court said, ``Nextel did not present
sufficient evidence indicating it qualifies as a public
utility.''
The tower in Bath is one of at least two dozen erected
over the last two years in the Akron-Canton area to allow
cellular phones to respond to pages and to receive and
transmit digital data to computer networks.
Months ago, Nextel appealed the 9th District Court
decision to the Ohio Supreme Court. However, the Supreme
Court declined to hear the case and the company was
forced to abide by the 9th District Court ruling and
remove the tower. The Supreme Court, meanwhile, opted to
hear the Plain Township case.
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Reprinted with permission of Roy Beavers, http://www.feb.se/EMF-L/EMF-L.html