BY ALLEN HOWARD
The Cincinnati Enquirer
ANDERSON TOWNSHIP -- Lawyers for the township are asking an appellate court in Columbus to stop construction of a cellular phone tower at the Five Mile Road exit on Interstate 275, pending an appeal of a lower court decision. Robert Molloy, lawyer for the township, said officials are seeking the injunction because GTE Wireless has continued to build the cell tower after a stay was issued a week ago.
The company said the stay did not apply because it did not say construction should stop.
Mr. Molloy filed for an injunction and an appeal in the 10th District Court of Appeals on Thursday, seeking to overturn a ruling by Franklin County Common Pleas Judge Patrick McGrath.
"We are hoping the court will rule on the injunction within the next few days," Mr. Molloy said. "The stay issued in the common pleas court did not specifically say the work should stop."
Judge McGrath ruled that because GTE Wireless and AirTouch entered an agreement with the Ohio Department of Transportation (ODOT) to build towers at the Five Mile and U.S. 52 exits in Anderson Township, they were considered public utilities and did not have to conform to township zoning codes.
Mr. Molloy sees it differently.
"It is obvious the towers would not be built there if they didn't make money for a private company. The towers will be used for the benefit of private businesses. How does that make them a public utility?" Mr. Molloy said.
As the issue is hashed out in court, workers are busy at the southwest corner of the Five Mile interchange, building a 180-foot monopole for a cell tower on land owned by the state, but zoned residential by the township.
"We know under the 1996 Federal Telecommunication Act, (neither) municipalities nor townships can prevent cell towers from being built," Mr. Molloy said. "But the law does give them the right to regulate where they can be built by requiring the companies to go through an administrative hearing."
GTE Wireless officials said that they have never received orders from the court to stop work. "We will abide by whatever the appeals court tells us to do," said Becky Cox, director of marketing and communication for GTE Wireless.
Mr. Molloy said it was necessary that the common pleas court ruling be challenged by a higher court because of the impact the ruling would have throughout Ohio on state-owned land.
"What this says is that any piece of property owned by ODOT can be used for whatever it wants without a hearing or anything. A tower could be built on the property without any challenge even if it is only 1 inch from a residence," Mr. Molloy said.
He disagreed with Judge McGrath's ruling that the cell companies were exempt from the zoning laws because they entered an agreement with ODOT.
