BY ALLEN HOWARD
The Cincinnati Enquirer
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.
