92 N.E.3d 397 (Ohio Comm. 2017), 17CV-2672, City of Bexley v. State

Docket Nº:17CV-2672
Citation:92 N.E.3d 397
Opinion Judge:Richard A. Frye, Judge.
Party Name:CITY OF BEXLEY, Ohio, et al., Plaintiffs, v. The STATE of Ohio, et al., Defendants.
Attorney:John P. Gilligan, Esq., Daniel M. Anderson, Esq., Ice Miller, L.L.P, Columbus, for plaintiffs. Mike DeWine, Attorney General, Bridget C. Coontz, Assistant Attorney General, for defendant State of Ohio. Douglas R. Cole, Esq., Bexley, David J. Twombly, Esq., Organ Cole L.L.P., for intervening defen...
Case Date:June 02, 2017
Court:Court of Common Pleas of Ohio

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92 N.E.3d 397 (Ohio Comm. 2017)

CITY OF BEXLEY, Ohio, et al., Plaintiffs,


The STATE of Ohio, et al., Defendants.

No. 17CV-2672

Court of Common Pleas of Ohio, Franklin, Civil Division

June 2, 2017

Page 398

[Copyrighted Material Omitted]

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John P. Gilligan, Esq., Daniel M. Anderson, Esq., Ice Miller, L.L.P, Columbus, for plaintiffs.

Mike DeWine, Attorney General, Bridget C. Coontz, Assistant Attorney General, for defendant State of Ohio.

Douglas R. Cole, Esq., Bexley, David J. Twombly, Esq., Organ Cole L.L.P., for intervening defendant CTIA— The Wireless Association.

John A. Bell, Esq., Bexley, for the Humane Society of the United States, Amicus.


Richard A. Frye, Judge.

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I. Introduction.

Fifty municipalities from across Ohio brought this suit challenging the constitutionality of portions of Sub. S. B. 331 enacted last December.

All parties agree that the first issue to be considered (among many challenges) is whether the single-subject (or one-subject) rule in Article II, Section 15(D) of the Ohio Constitution was violated by this enactment. The Act passed shortly before last Christmas during the so-called " lame duck" session of the 131st General Assembly. It includes many topics that plaintiffs argue are not a single " subject." The parties provided the court with a stipulation of facts tracking the Act through the legislative process, together with all versions of S.B. 331 as it metastasized. All parties agree that no genuine dispute of material fact exists, and that the question presented is purely one of Ohio constitutional law.

II. The Evolution of S.B. 331.

Initially, S.B. 331 focused only R.C. Ch. 956, and was only intended " to regulate the sale of dogs from pet stores and dog retailers" and to require the Ohio Department of Agriculture " to license pet stores." (Title as introduced in the Senate, May 17, 2016.) Senate passage occurred May 25, and the Bill went to the Ohio House. It languished there until after the 2016 general election. During the so-called " lame duck" session the House Finance Committee added diverse new provisions. Some fixed a statewide minimum wage, and preempted local municipal minimum wage ordinances; others created new statewide rules guaranteeing that the relationship between employees and employers would be solely a matter of private contract or collective bargaining and not subject to local regulation; made cockfighting, bearbaiting, or pitting an animal against another illegal; made sexual conduct between a person and an animal (bestiality) illegal; changed the residency requirement for county humane society agents; made an appropriation for the Agriculture Department and related entities; and substantially rewrote statewide rules for micro-wireless 5G telecommunications equipment. The last subject— regulation of new generation micro-wireless systems— is the focus of concern raised by the fifty plaintiff municipalities in this case.

On December 7, 2016 the Bill passed out of the House Finance Committee. The same day it passed the full House, and the Ohio Senate concurred in the House amendments. In due course it was signed by Governor Kasich.1 As enacted it was 28

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pages in length, without signature pages. The effective date was March 21, 2017.

The portions of S.B. 331 addressed by plaintiffs amended existing statutes in R.C. Chapter 4939, and put in place new provisions addressing how municipalities may interface with new " micro wireless facilities." Such facilities are defined to include " both a distributed antenna system and a small cell facility, and the related wireless facilities." R.C. 4939.01(F). R.C. 4939.02(A)(8) was added to set forth a new finding by the General Assembly that " [i]t is the public policy of this state to *** [e]xpedite the installation and operation of micro, and smaller, wireless facilities in order to facilitate the deployment of advanced wireless service throughout the state."

Among many substantive revisions to this area of Ohio law is R.C. 4939.031(A). It now requires municipal action not later than 90 days after the date of a filing for consent to use a public way to attach micro wireless facilities to a support structure. R.C. 4939.031(B) now provides that a municipality " shall not require any zoning or other approval, consent, permit, certificate, or condition for the construction, replacement, location, attachment, or operation of a micro wireless facility, or otherwise prohibit or restrain the activities as described in this section." Beyond that, R.C. 4939.032 states that " [a] micro wireless facility operator may construct and operate the facility in a public way, subject to this chapter" while the next following section (4939.033) provides that " [a] request for consent under section 4939.031 of the Revised Code shall be deemed a permitted use and shall be exempt from local zoning review." Other new provisions preclude a municipality from requiring a telecommunications provider " justify the need for the new micro wireless facility," or " [e]valuate the request based on the availability of other potential locations for the placement of the micro wireless facility or associated wireless support structure; " or condition consent on " purchase, lease, or use of facilities, networks, or services owned or operated by the municipal corporation." R. C. 4939.0315 (C), (D) and (J).

Under S.B. 331, Ohio municipalities are precluded from imposing " separation requirements that require any space to be maintained between wireless facilities or wireless support structures" and stopped from preventing installation of such facilities and structures " in a residential area or within a specific distance from a residence or other structure." Id. at (P) and (Q). Further restrictions on municipal authority include R.C. 4939.0325(A), which eliminates the right of a municipal corporation to block " an attachment by a micro wireless facility operator to a wireless support structure owned or operated by the municipal corporation and located in the public way."

It is undisputed that S.B. 331 addresses a wide variety of topics. However, as discussed below, a law must be upheld under the one-subject rule so long as, despite a diversity in topics, one common, unifying subject or purpose ties all the topics together. Here, both the State and intervening defendant CTIA— The Wireless Association argue that the common thread or purpose behind S.B. 331 was elimination of a " patchwork quilt of differing municipal regulations scattered across the state," to thereby " ensuring uniform statewide regulation of certain business activities that would otherwise be harmed by fragmented and burdensome municipal regulation." Conversely, both the Humane Society of the United States as amicus and the plaintiff municipalities contend that the primary

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purpose of this Act can only be seen as the protection of animals through regulation of dog sales, licensing of pet stores, and ancillary provisions criminalizing bestiality, authorizing impoundment of an animal believed to be the subject of such an offense, and blocking bearbaiting and animal fighting. To that might be added the appropriation of approximately $75 million for programs involving animal health and food safety through the Agriculture Department, county Agricultural Societies, and Soil and Water...

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