Trustees of Washington Township v. Davis

95 Ohio St. 3d 274
CourtOhio Supreme Court
DecidedMay 15, 2002
DocketNos. 2001-0847 and 2001-0981
StatusPublished
Cited by4 cases

This text of 95 Ohio St. 3d 274 (Trustees of Washington Township v. Davis) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Trustees of Washington Township v. Davis, 95 Ohio St. 3d 274 (Ohio 2002).

Opinion

Cook, J.

{¶ 1} R.C. 519.211(A) provides public utilities with a general exemption from township zoning regulations. In an effort to attain that exemption, appellants urge this court to categorize broadcast radio stations as public utilities. Based upon our review of R.C. 519.211 and our prior decisions, we consider such a classification to be unwarranted in this circumstance and therefore affirm the appellate court’s judgment.

{¶ 2} Appellant Citicasters Company (“Citicasters”) operates an AM radio station in Columbus, Ohio, sending its signal from Columbus by microwave to its transmission tower in Obetz. Its broadcast is accessible to all listeners in the coverage area.

{¶ 3} Citicasters holds a Federal Communications Commission (“FCC”) license to operate its broadcast station that is statutorily conditioned upon Citicasters’ compliance with certain technical requirements and adherence to certain programming regulations. Section 312(a)(4), Title 47, U.S.Code; see, generally, Section 310 et seq., Title 47, U.S.Code. Citicasters alone determines the content of its broadcast subject to these statutes and associated regulations.

{¶ 4} In an effort to increase its coverage area, Citicasters leased property in Washington Township from appellant, Kenneth Davis, with the intention of building eight new transmission towers. After construction began, appellees, the Washington Township Trustees (the “township”), petitioned the Pickaway County Court of Common Pleas to issue a permanent injunction to prevent any further construction on the towers and to require Citicasters to remove all existing structures. Citicasters’ construction of these towers, the township contended, violated local zoning regulations. Appellants (Citicasters, Kenneth Davis, and Clear Channel Communications, Inc., hereinafter collectively, “Citicasters”) responded that Citicasters is exempt from compliance with zoning ordinances as a public utility.

{¶ 5} The cause proceeded to trial to determine whether Citicasters was indeed a public utility and therefore exempt from the township’s zoning requirements. The trial court ruled that the radio station was not a public utility and that in any event, even if it were, R.C. 519.211(B)(4)(a) provided the township with the authority to prohibit construction of the towers. On that basis, the court permanently enjoined Citicasters from further construction and required the removal of all existing structures that violate the Washington Township Zoning Resolution.

{¶ 6} Citicasters appealed the trial court’s decision to the Fourth District Court of Appeals, which affirmed the trial court on the basis that Citicasters was not a public utility. In so doing, the court recognized its disagreement with the [276]*276Tenth District Court of Appeals’ decision in Collins v. Swackhamer (1991), 75 Ohio App.3d 831, 600 N.E.2d 1079, which held that an entity seeking to build an FM radio tower met the definition of a public utility. The appellate court declined to address the issue of whether Washington Township was authorized to restrictively zone the tower under R.C. 519.211(B), as it considered that issue moot based upon its holding that Citicasters was not a public utility.

{¶ 7} Citicasters moved to certify a conflict between the Tenth and Fourth Districts on the issue of whether a radio station is a public utility for purposes of R.C. 519.211(A). The Fourth District certified the conflict, and the cause is now before this court upon our determination that a conflict exists (case No. 01-981) and the allowance of a discretionary appeal (case No. 01-847).

{¶ 8} Resolution of this controversy rests upon the meaning of the term “public utility” for purposes of the zoning exemption contained in R.C. 519.211(A). Because the General Assembly chose not to define that term with respect to R.C. 519.211, this court has routinely employed a multifactored test to determine whether an entity qualifies as a public utility. See, generally, A & B Refuse Disposers, Inc. v. Ravenna Twp. Bd. of Trustees (1992), 64 Ohio St.3d 385, 596 N.E.2d 423. Citicasters contends that in addition to the multifactored test, the language of R.C. 519.211(A) and (B) mandates public utility status for broadcast radio stations.

{¶ 9} R.C. 519.211(A) sets forth the zoning exemption for public utilities, stating: “Except as otherwise provided in division (B) or (C) of this section, sections 519.02 to 519.25 of the Revised Code confer no power on any board of township trustees or board of zoning appeals in respect to the location, erection, construction, reconstruction, change, alteration, maintenance, removal, use, or enlargement of any buildings or structures of any public utility or railroad, whether publicly or privately owned, or the use of land by any public utility or railroad, for the operation of its business.”

{¶ 10} R.C. 519.211(B)(2) contains the following limitation on the exemption, allowing township zoning of certain telecommunications towers owned or used by public utilities: “Sections 519.02 to 519.25 of the Revised Code confer power on a board of township trustees or board of zoning appeals with respect to the location, erection, construction, reconstruction, change, alteration, removal, or enlargement of a telecommunications tower * * “Telecommunications tower” is defined in part as the “free-standing or attached structure * * * proposed to be owned or principally used by a public utility engaged in the provision of telecommunications services.” R.C. 519.211(B)(1)(b).

{¶ 11} Presenting a rather circular argument, it is Citicasters’ position that the language of R.C. 519.211(A), when read in conjunction with R.C. 519.211(B), requires its categorization as a public utility. Specifically, Citicasters insists that [277]*277because the General Assembly carved out telecommunications towers from the public utility zoning exemption, all users of telecommunications towers must be public utilities. Treating the terms “telecommunications provider” and “users of telecommunications towers” interchangeably, Citicasters claims, “[Tjelecommunications providers (those that employ ‘telecommunications towers’) are otherwise regarded as public utilities (otherwise the exemption in R.C. § 519.211(B) would be meaningless).” Citicasters then describes itself as a user of telecommunications towers and argues that it must be considered a public utility.

{¶ 12} We reject this proposition, however, as not only circular, but contrary to the language of the statute. Clearly, the “telecommunications towers” exception in R.C. 519.211(B) recognizes that some public utilities will use telecommunication towers to provide service. But we find no basis in that language to say that all users of such towers are ipso facto public utilities. Furthermore, in defining “telecommunications towers,” R.C. 519.211(B)(1)(b) specifically limits those towers that fall within its scope to those that are “owned or principally used by a public utility.” This provision contradicts Citicasters’ argument, as the General Assembly would not have provided this limitation had it believed that all users of such towers were necessarily public utilities.

{¶ 13} We also reject Citicasters’ contention that Campanelli v. AT & T Wireless Serv., Inc. (1999), 85 Ohio St.3d 103, 706 N.E.2d 1267, offers support for its reading of R.C. 519.211. In Campanelli,

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Related

Washington Twp. Trustees v. Davis
2002 Ohio 2123 (Ohio Supreme Court, 2002)

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Bluebook (online)
95 Ohio St. 3d 274, Counsel Stack Legal Research, https://law.counselstack.com/opinion/trustees-of-washington-township-v-davis-ohio-2002.