Sparks v. BowlingSparks v. Bowling
Jay C. Bennett, Oxford Professional Building, 5995 Fairfield Road, Suite 5, Oxford, Ohio 45056, for defendant-appellee, Emma Bowling
John B. Kopf, Jerry Vande Werken, Scott A. Campbell, 41 South High Street, 17th Floor, Columbus, Ohio 43215, for defendants-appellees, T-Mobile Central, LLC and Matt Meyers d.b.a. PBM Wireless
Robert J. Surdyk, One Prestige Place, Suite 700, Miamisburg, Ohio 45342, for defendant-appellee, Robert McIntyre, Zoning Inspector
Jack F. Grove, 1251 Nilles Road, Suite 10, Fairfield, Ohio 45014-2911, for defendant-appellee, Robert McIntyre, Zoning Inspector
OPINION
HENDRICKSON, J.
{¶1} Plaintiffs-appellants, Pamela Sparks, Steve Sparks, Ronnie M. Brown,
{¶2} Appellants and Bowling are all property owners in Long Meadow Estates, Brooke Meadows subdivision, in Fairfield Township. In the fall of 2007, T-Mobile‘s agent, PBM, approached Bowling and other subdivision property owners about constructing a cell tower on one of their respective properties. Bowling agreed, and entered into a contract with T-Mobile to build the cell tower on her property.
{¶3} In April 2008, upon their own investigation, appellants discovered that the subdivision was zoned agricultural, or A-1, rather than residential. Appellants filed a request with the Fairfield Township Zoning Commission to have their properties rezoned from agricultural to residential, because their properties were exclusively used for residential purposes and were taxed as residential property. Meanwhile, in May of 2008, McIntyre issued a letter (exemption letter) to T-Mobile informing the company that the cell tower, as a public utility, was exempt from township zoning. On July 10, 2008, appellants successfully had their respective properties rezoned as residential. Bowling‘s property, however, remained zoned agricultural. On July 22, 2008, appellants requested that McIntyre rescind the zoning exemption letter. McIntyre declined this request.
{¶4} Two days later, appellants filed a complaint against Bowling, PBM, T-Mobile and McIntyre seeking a declaratory judgment finding the site of the cell tower‘s construction was in a residential zone. Appellants contended if the site were in an area zoned residential, they would be entitled to notice pursuant to
{¶5} Bowling, PBM, T-Mobile and McIntyre all filed motions to dismiss. Appellants, in turn, filed a motion for summary judgment. The trial court granted the motions to dismiss, denied the writ of mandamus, and denied appellants’ summary judgment motion. In granting the motions to dismiss, the trial court found that the tower was slated for construction on Bowling‘s agriculturally zoned property and not in an area zoned for residential use. Appellants filed a timely appeal raising two assignments of error.1 Appellant‘s second assignment of error is as follows:
{¶6} “THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO CONCLUDE THAT THE PROPERTY IN QUESTION IS IN AN AREA ZONED FOR RESIDENTIAL USE UNDER
{¶7} Appellants argue that the trial court erred in finding Bowling‘s property was not in an area zoned for residential use. We do not agree.
{¶8} “A motion to dismiss for failure to state a claim upon which relief can be granted * * * tests the sufficiency of the complaint.” State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548, 1992-Ohio-73. “A [successful]
{¶9} “In order for a complaint to be dismissed under
{¶10} “An order granting a
{¶11} “The zoning authority possessed by townships in the state of Ohio is limited to those powers specifically conferred by the General Assembly.” Symmes Twp. Bd. Of Trustees v. Smyth, 87 Ohio St.3d 549, 552, 2000-Ohio-470, citing Yorkavitz v. Columbia Twp. Bd. of Trustees (1957), 166 Ohio St. 349. “As a general rule, Ohio law provides that townships have no power under the zoning laws to regulate the location, erection, or construction of any buildings or structures of any public utility.”2 Symmes at 551, citing
{¶12} “There is a limited exception to this rule that applies to certain telecommunications towers that are to be located ‘in an area zoned for residential use.‘”3 Symmes at 551-52, citing
{¶13} Both sides cite Symmes in support of their respective positions. In Symmes, AT&T built a cell tower on property belonging to an auto service shop, which was zoned as an “E Retail Business District,” after receiving a “public utility exemption letter” from the county zoning commission. Id. at 550. After the tower was completed, Symmes Township moved for a restraining order against AT&T, the property owner and lessee arguing that because the zoning classification permitted residential use, the tower was subject to Symmes’ regulation. Id. Both the trial court and the appellate court found that the property – although it permitted residential use – was not zoned residential and thus not subject to Symmes’ regulation. Id. 550-51. The Supreme Court accepted certiorari after certifying a conflict with another case over the meaning of the phrase, “in an area zoned for residential use.” Id. at 551. Finding the phrase
{¶14} Appellants’ position is that although Symmes clarified what “zoned for residential use” meant; the decision failed to explain what is meant by “an area.” Appellants urge this court to find that “an area” includes not only the property on which the tower is to be located, but also the character, or more correctly zoning, of the surrounding/contiguous properties. They support this argument by pointing out that the Symmes decision twice made reference to the auto service shop‘s surrounding properties and their zoning classifications.4 Appellants contend that if the phrase “an area” is found to mean only the site on which the tower is to be located, it would frustrate the purpose of zoning regulations, and undermine the legislative intention to balance the rights of property owners and telecommunications companies. Appellants also assert that the notice provisions within
{¶15} PBM and T-Mobile argue that the Symmes decision requires courts to read the phrase narrowly, as it is a limited exception to the rule that townships have no zoning authority over public utilities. In addition, PBM and T-Mobile contend that allowing appellants to rezone their property in order to “trigger” the township‘s zoning power would in effect create a de facto residential classification over Bowling‘s property.
{¶16} PBM, T-Mobile, McIntyre and Bowling all assert that the proper inquiry in this case is how Bowling‘s property is zoned, and not how other properties, near, beside, or even around her property are zoned. PBM and T-Mobile maintain that to expand the meaning of area beyond Bowling‘s property would lead to further problems in determining how many other properties to include in the inquiry. In addition, McIntyre and Bowling insist that the Symmes decision only concerned itself with the property on which the tower was being placed, and not on other properties in the area. Finally, PBM, T-Mobile, McIntyre and Bowling all argue that the notice provision in
{¶17} When McIntyre issued the exemption letter to T-Mobile in May of 2008, all of the properties in the area, including Bowling‘s, were zoned agricultural.6 Thus, even if we were to apply a broad reading of “area,” to include surrounding properties, none of the properties were zoned for residential use at the time the exemption letter was
{¶18} Finally, the legislature‘s purpose in enacting
{¶19} In conclusion, even if we presume that all factual allegations of the complaint are true and make all reasonable inferences in favor of the nonmoving party, we find that appellants can prove no set of facts entitling them to relief. Therefore, appellants’ assignment of error is overruled.
{¶20} Judgment affirmed.
BRESSLER, P.J., and POWELL, J., concur.