United States District Court, S.D. Ohio, Eastern Division
Jolson, Magistrate Judge.
OPINION AND ORDER
C. SMITH, JUDGE UNITED STATES DISTRICT COURT.
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.
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).
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
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).
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).
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.
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.).
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.).
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).
STANDARD OF REVIEW
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.
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”).
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.
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).
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 ...