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Capital Telecom Holdings II LLC v. Grove City

United States District Court, S.D. Ohio, Eastern Division

August 21, 2019

GROVE CITY, OHIO, Defendant.

          Jolson, Magistrate Judge.



         This matter is before the Court upon Plaintiffs' Motion for Summary Judgment on Counts I and II (“Plaintiffs' Motion”) (Doc. 13) and Defendant's Motion for Summary Judgment on Counts I, II, and IV (“Defendant's Motion” (Doc. 14) and together with the Plaintiffs' Motion, the “Motions”). The Motions are fully briefed and ripe for disposition. Following the submission of Defendant's Motion, the parties stipulated to the dismissal of Count IV. (Doc. 15, Stip. Dismissal). Pursuant to the Stipulation, Count IV is hereby DISMISSED. For the following reasons, Plaintiffs' Motion is DENIED and Defendant's Motion is GRANTED.

         I. BACKGROUND

         Plaintiffs desire to construct a telecommunications tower and related facility to improve and overcome a significant gap in wireless telecommunications service by Verizon, a national wireless telecommunications carrier. (Doc. 1, Compl. ¶ 8). Plaintiffs identified a site at 3363 McDowell Road, Grove City, Ohio 43123 (the “Site”) that would address that need for improved wireless telecommunications service and close an identifiable and significant service gap. (Doc. 14-1, Joint Exhibit A (Method of Rezoning Application) PAGEID #402). The Site is zoned C-2 Retail Commercial. (Id.). In January 2018, Plaintiffs submitted a zoning application (the “Application”) to Grove City seeking use approval for its proposed telecommunications tower and facility to be built at the Site. (Id. at PAGEID #403). The Application included site plans and construction drawings for a telecommunications tower and related facility. (Id. at PAGEID #421-26). The Application was a request “to place, construct, or modify personal wireless service facilities” as contemplated by the Telecommunications Act of 1996 (the “TCA”). (Doc. 14-1, Joint Exhibit A (Method of Rezoning Application); Doc. 1, Compl. at ¶ 14).

         A zoning application goes through several steps before the Grove City Council (the “City Council”) casts its final vote on the application. Pursuant to Section 1135.09 of the Grove City Codified Ordinances, first, the Grove City Planning Commission (the “Planning Commission”) considers the application. (Doc. 1, Compl. at ¶ 16). The Planning Commission then recommends either approval or disapproval of the zoning application to the City Council. (Id.). After receiving the Planning Commission's recommendation, the City Council then has a first reading of the application. Next, the City Council holds a second reading of the application and holds a hearing on the application. Finally, the City Council votes on the zoning application. (Id.).

         In the case at hand, prior to the Planning Commission holding its hearing on the Application, the Grove City Developmental Department provided a Planning Commission Staff Report to the Planning Commission. (Doc. 14-1, Joint Exhibit J (03062018 PC Staff Report)). The Planning Commission Staff Report recommended that the Planning Commission recommend approval of the Plaintiffs' Application to the City Council so long as eight stipulations were met. (Doc. 14-1, Joint Exhibit G (03062018 PC Minutes) PAGEID #467). The Planning Commission held its hearing on Plaintiffs' Application on March 6, 2018, and voted not to recommend approval of the Application to the City Council by a vote of 2-2. (Id. at PAGEID #465-69; Doc. 14-1, Joint Exhibit G (03062018 PC Minutes) at PAGEID #474).

         The Planning Commission's 2-2 vote regarding the Application was forwarded to the City Council to consider the Application. The City Council considered the Application, titled Ordinance C-20-18, which, if passed, would “Approve the Use for a Telecommunications Tower for Verizon Wireless located at 3363 McDowell Road.” (Doc. 14-2, Joint Exhibit L (03192018 Legislative Agenda) at PAGEID #476). The City Council held its first reading of Ordinance C-20-18 at its meeting on March 19, 2018. (Id. at PAGEID #475). The City Council held its second reading, and public hearing, regarding Ordinance C-20-18, on April 16, 2018 (the “Hearing.”). (Doc. 14-2, Joint Exhibit S (04162018 Legislative Agenda) at PAGEID #496).

         At the Hearing, the City Council discussed a range of issues regarding the application. The City Council, reading from the Planning Commission Staff Report, identified several ways the proposed cell tower did not comply with requirements of the Grove City Zoning Code. Councilman Schottke, reading from the Planning Commission Report, stated that the land where the proposed tower would be built was not appropriately zoned. (Doc. 14, Joint Exhibit U (04162018 Minutes) at PAGEID #500). The Grove City Zoning Code requires that telecommunications towers be built in one of four zoned areas: IND-1, IND-2, CF, or SD-4. (Id.). Because Plaintiffs proposed that the tower be built in an area zoned C-2, the proposed tower would not be located in an appropriately zoned area. Further, Councilman Schottke, reading from the Planning Commission Report, stated that the Grove City Zoning Code requires that “the base of the antenna be setback from all abutting property no less than 100% of its height” and that the proposed cell tower would not meet such requirement. (Id.). The councilmembers discussed several other concerns with the tower including: the encroachment of the proposed tower on the FEMA Steam Corridor Protection Zone and the sanitary sewer area and easement, the appearance of the tower and its affect on commercial site lines, what would happen should the tower not be built, whether Plaintiffs gave local residents notice of the tower, whether the tower could be moved to an appropriately zoned area, and how long the proposed tower would solve the coverage problems. (Id.).

         Plaintiffs responded to the concerns of the councilmembers at the meeting. They admitted that the proposed tower was not in an appropriately zoned area. (Id. at PAGEID #501). However, Plaintiffs contended that they could not find a suitable area to address the significant gap in cell coverage in an appropriately zoned area and that was why they were applying for a zoning variance. (Id.). Maurice Aguiler, a Verizon engineer, speaking on behalf of Plaintiffs, explained that the location was selected because it would split the traffic between three existing towers and thus reduce the capacity of all three towers. (Id. at PAGEID #500). Plaintiffs also discussed the other areas they evaluated for the tower and why those areas were not suitable. (Id.). Plaintiffs explained that the tower did not meet the 100% setback requirement because they were keeping the tower out of the Steam Corridor Protection Zone, and that if they did not have to stay out of that area, then they would meet the 100% setback requirement. (Id. at 501). Further, Plaintiffs explained that they designed the tower to “break like a bendy straw” so that it would avoid falling on area buildings if it ever fell. (Id.). Finally, Plaintiffs explained that the proposed tower would be in a commercial area and not within 300 feet of residential property, and that is why no notice was provided to local residents. (Id.). The Plaintiffs did offer to notify residents of the proposed tower if the City Council so desired. (Id.).

         After the discussion regarding the proposed cell tower concluded, one councilman moved that the Application be approved. (Id.). The motion died for a lack of a second. (Id.). At the end of the Council Meeting, the City Council voted 4-1 to “postpone indefinitely” the Application. (Id. at PAGEID #401). Pursuant to an email from Grove City's Law Director, Stephen Smith, the City Council's action to “postpone indefinitely” constituted a denial of the Application. (Doc 14, Joint Exhibit Y (Correspondence) at PAGEID #532). In this email, Mr. Smith also informed Plaintiffs that a written decision would occur once the City Council approved the minutes from the April 16th Council Hearing. (Id.).

         On May 7, 2018, the City Council approved its written minutes (the “Minutes”) from the Hearing. (Doc. 14-2, Joint Exhibit X (05072018 Minutes) at PAGEID #507). Aside from the Minutes, the City Council issued no other written decision on the Application. (Doc. 1, Compl. at ¶ 31).


         Both Plaintiffs and Grove City move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Berryman v. SuperValu Holdings, Inc., 669 F.3d 714, 716-17 (6th Cir. 2012). The Court's purpose in considering a summary judgment motion is not “to weigh the evidence and determine the truth of the matter” but to “determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A genuine issue for trial exists if the Court finds a jury could return a verdict, based on “sufficient evidence, ” in favor of the nonmoving party; evidence that is “merely colorable” or “not significantly probative, ” however, is not enough to defeat summary judgment. Id. at 249-50.

         The party seeking summary judgment shoulders the initial burden of presenting the Court with law and argument in support of its motion as well as identifying the relevant portions of “‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56). If this initial burden is satisfied, the burden then shifts to the nonmoving party to set forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e); see also Cox v. Kentucky Dep't of Transp., 53 F.3d 146, 150 (6th Cir. 1995) (after burden shifts, nonmovant must “produce evidence that results in a conflict of material fact to be resolved by a jury”).

         In considering the factual allegations and evidence presented in a motion for summary judgment, the Court “views factual evidence in the light most favorable to the non-moving party and draws all reasonable inferences in that party's favor.” Barrett v. Whirlpool Corp., 556 F.3d 502, 511 (6th Cir. 2009). But self-serving affidavits alone are not enough to create an issue of fact sufficient to survive summary judgment. Johnson v. Washington Cty. Career Ctr., 982 F.Supp.2d 779, 788 (S.D. Ohio 2013) (Marbley, J.). “The mere existence of a scintilla of evidence to support [the non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party].” Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir. 1995); see also Anderson, 477 U.S. at 251.

         That the parties have filed cross-motions for summary judgment does not alter the Court's standard of review. See Taft Broad. Co. v. United States, 929 F.2d 240, 248 (6th Cir. 1991) (“[T]he standards upon which the court evaluates the motions for summary judgment do not change simply because the parties present cross-motions.”). Thus, in reviewing cross-motions for summary judgment, the Court must still “evaluate each motion on its own merits and view all facts and inferences in the light most favorable to the non-moving party.” Wiley v. United States, 20 F.3d 222, 224 (6th Cir. 1994).


         This case is one of statutory interpretation. The outcome turns on whether Grove City complied with the TCA's requirements. For that reason, this Court will first overview the text and purpose of the TCA and then ...

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