Subject:  Cincinnati Tower Ruling.....
Date:     Sun, 28 Jun 1998 131106 -0500 (CDT)
From:     "Roy L. Beavers" <rbeavers@llion.org>
To:       emfguru <rbeavers@llion.org>
--------------------------------------------------

........Dr. Bob Weiner sent the following new item found in the
Cincinnati Enquirer.....guru.....
   
   A Franklin County Common Pleas Judge has ruled that two
   telecommunications companies may construct towers in Anderson Township
   on state-owned land along a freeway that is zoned residential.
   
   But the township has obtained a stay to block the work, pending an
   appeal of the decision, issued last week by Judge Patrick M. McGrath.
   "I was disappointed, but not surprised," said Russ Jackson, president
   of the Anderson Township Board of Trustees. "This ruling says it was
   the intent of the General Assembly to allow the state to circumvent
   local zoning procedures."
   
   Judge McGrath ruled that the cell phone companies are classified as
   public utilities in the court action since they entered into an
   agreement with the Ohio Department of Transportation to construct
   towers on state property.
   
   During a hearing, township lawyers cited state case law in 1996 that
   states that a private corporation cannot "boot strap" its way into a
   zoning exemption by entering into a lease contract with a public
   entity.
   
   But Judge McGrath said by constructing the communication towers they
   were fulfilling an "essential highway purpose" and did not have to
   submit to the township zoning procedure.
   
   The judge said complying with Anderson Township zoning procedure would
   hinder that essential highway purpose.
   
   AirTouch and GTE Wireless entered the agreement with ODOT to build
   towers at the Five Mile Road and U.S. 52 exits on Interstate 275 in
   Anderson Township.
   
   Judge McGrath said the towers would benefit local property owners by
   reducing the number of towers needed to serve local customers. He said
   other tower companies as well as other communication systems could
   co-locate on the towers because they would be a part of the state's
   multiagency radio communication system and ODOT's communication
   system.
   
   The federal Telecommunication Act of 1996 requires that the companies
   provide service to the public. The law stipulates that municipalities
   may not enact laws to prevent the companies from providing the
   services.
   
   The court also denied the township's request for a change of venue
   because Jerry Wray, director of ODOT, was named in the lawsuit and he
   lives in Franklin County.
   
   Mr. Jackson said Anderson was not opposed to building towers in the
   township, but that the companies should be required to go through a
   zoning hearing as required by a township ordinance and show that they
   cannot find another location, or that they cannot co-locate with
   another tower company.
   
   Officials at GTE Wireless and AirTouch would not comment on the
   ruling.
   
   Since Judge McGrath's ruling, work had begun at the Five Mile Road
   site to construct the tower. Henry Dolive, township administrator,
   placed a copy of the stay of execution at the site Wednesday to stop
   the construction.
   
   Mr. Jackson said Anderson has received $15,510 from six townships to
   help pay legal bills: Boardman in Mahoning County, $2,500; Deerfield
   in Warren County, $1,400; Jackson in Franklin County, $500; Union in
   Clermont County, $5,000; Washington in Franklin County, $5,000; and
   Washington in Montgomery County, $1,110.





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Reprinted with permission of Roy Beavers, http://www.feb.se/EMF-L/EMF-L.html