Leppla v. SPRINTCOM, INC

• Decision Date: 19 March 2004
• Docket Number: No. 19969.,19969.
• Parties: LEPPLA, Appellant, v. SPRINTCOM, INC. et al., Appellees.
• Court: Ohio Court of Appeals

156 Ohio App.3d 498

2004-Ohio-1309

806 NE 2d 1019

2004-Ohio-1309

LEPPLA, Appellant, v. SPRINTCOM, INC. et al., Appellees.

No. 19969.

Court of Appeals of Ohio, Second District, Montgomery County.

Decided March 19, 2004.

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Gary J. Leppla, pro se.

Benjamin J. Ockner, for appellee.

BROGAN, Judge.

{¶ 1} Gary J. Leppla appeals from the trial court's entry of summary judgment against him on his complaint alleging that a cellular telephone tower built near his residence is a common-law nuisance.

{¶ 2} Leppla advances two assignments of error on appeal. First, he contends that the trial court erred in entering summary judgment against him on his nuisance claim. Second, he claims that the trial court erred in refusing to consider the constitutionality of R.C. 519.211, which provides that a township lacks regulatory authority over cell towers located in certain areas. Upon review, we conclude that the trial court did err in entering summary judgment against Leppla on his nuisance claim. We find no merit, however, in Leppla's argument regarding the trial court's failure to consider the constitutionality of R.C. 519.211. Accordingly, the trial court's judgment will be affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

I

{¶ 3} The record reflects that in July 1999, the German Township Board of Zoning Appeals ("BZA") approved a variance request and granted a permit allowing appellee Sprintcom, Inc. to construct a cell-phone tower on property owned by appellees Charles and Bobby Stiver, more than a quarter mile from residential property owned by Leppla.

{¶ 4} Sprintcom constructed the tower in January 2000, directly across a field from Leppla's property. Leppla first noticed the tower toward the end of that month when it lit the night sky. In the weeks that followed, the tower's lighting operated erratically. During daylight hours, it frequently emitted an inappropriate strobe light, and it sometimes lacked any lighting at night. Although Sprintcom admits that the lighting temporarily malfunctioned, it provided the trial court with an affidavit from German Township zoning administrator DiAnna Fite, who averred that the problem has been corrected. In response, Leppla filed an affidavit in which he averred that the problem had not been corrected. In fact, he averred that the tower has had no lighting, day or night, since August 25, 2001. (Leppla affidavit, attached to Doc. # 29 at 4-5.) The lack of lighting on the tower has caused Leppla to fear for his safety due to the presence of low-flying aircraft in the area.

{¶ 5} Based on his concern over the operation of the cell-phone tower, Leppla originally filed suit against Sprintcom, the Stivers, and the German Township Board of Trustees in the United States District Court for the Southern District of Ohio. Leppla claimed that the facility was a nuisance and sought various forms of relief under state and federal law. On March 18, 2002, the district court entered judgment against Leppla on all of his federal claims. It then dismissed his pendent state-law claims without prejudice to refiling in state court. Leppla did not appeal from the district court's decision.

{¶ 6} On April 24, 2002, he filed the present action alleging, among other things, that the cell tower is a nuisance under Ohio law. The appellees later moved for summary judgment. On May 20, 2003, the trial court sustained the appellees' motion. With regard to the nuisance claim, the trial court identified the alleged nuisance as "prior occurrences of malfunctioning lights." The trial court then identified the alleged injury suffered by Leppla as a decrease in his property value. It rejected the nuisance claim, however, finding no evidence that the prior malfunctioning had caused a decrease in the value of Leppla's property. The trial court also refused to consider Leppla's argument that R.C. 519.211, which limits the ability of townships to regulate cell-phone towers, is unconstitutional. The trial court held that this issue had been resolved in the federal court action and, in any event, that Leppla lacked standing to make such a challenge. This timely appeal followed.

II

{¶ 7} In his first assignment of error, Leppla contends that the trial court erred in entering summary judgment against him on his nuisance claim. In support, he advances two arguments. First, he claims that the trial court did not credit his affidavit testimony that low-flying aircraft in the vicinity of the unlit tower caused an unreasonable risk of harm. Leppla insists that this risk itself makes the cell tower a "qualified nuisance." Second, he claims that the trial court erred in finding no evidence that the unlit tower had caused a decrease in his property value. According to Leppla, his own affidavit constituted sufficient evidence to avoid summary judgment.

{¶ 8} In response to Leppla's arguments, the appellees first contend that his nuisance claim is preempted by the Federal Aviation Act and administrative regulations promulgated thereunder. They next assert that no private right of action exists for a violation of federal cell-tower lighting regulations. Finally, the appellees argue that Leppla's nuisance claim fails on the merits. Although the appellees discuss various types of nuisances, Leppla's appellate brief makes clear that he alleges the existence of a qualified nuisance. (See Appellant's brief at 5-7.) With regard to this type of nuisance, the appellees note that negligence must be proven. They contend that Leppla failed to present evidence establishing that the "temporary" malfunctioning of the tower lights was caused by "negligence on the part of anyone." Finally, the appellees argue that while Leppla was competent to testify as to the value of his property, he was not competent to testify "as to the cause of any change in value or the lawfulness of any such cause."

{¶ 9} Upon review, we easily may dispose of the appellees' argument that no private right of action exists under the Federal Aviation Act or regulations promulgated by the Federal Aviation Administration concerning cell-tower lighting requirements. Leppla appears to concede that neither the Act nor its accompanying regulations authorize an express or implied private right of action. We note, however, that he has disavowed any intent to pursue such a claim, advancing instead only a common-law nuisance claim. Thus, the absence of a private right of action under the federal statute and regulations is immaterial. See Ishikawa v. Delta Airlines, Inc. (C.A.9, 2003), 343 F.3d 1129, 1132 ("The argument that the federal scheme does not create a private right of action is a red herring. Ishikawa did not pursue some supposed private right of action under the federal scheme.").

{¶ 10} We turn next to the appellees' argument that Leppla's common-law nuisance claim is preempted by federal law. The trial court rejected this argument, and we agree that Leppla's common-law nuisance action is not preempted, at least insofar as he alleges that Sprintcom's cell tower is a nuisance when it is unlit in violation of federal lighting standards.¹

{¶ 11} It is well settled that the Supremacy Clause of the federal Constitution grants Congress the power to preempt state law. Minton v. Honda of Am. Mfg., Inc. (1997), 80 Ohio St.3d 62, 68, 684 N.E.2d 648, abrogated on other grounds by Geier v. Am. Honda Motor Co., Inc. (2000), 529 U.S. 861, 120 S.Ct. 1913, 146 L.Ed.2d 914. In addition, "`a federal agency acting within the scope of its congressionally delegated authority may pre-empt state regulation.'" In re Miamisburg Train Derailment Litigation (1994), 68 Ohio St.3d 255, 260, 626 N.E.2d 85, quoting Louisiana Pub. Serv. Comm. v. Fed. Communications Comm. (1986), 476 U.S. 355, 369, 106 S.Ct. 1890, 90 L.Ed.2d 369.

{¶ 12} In Minton, supra, the Ohio Supreme Court recognized three ways state law can be preempted by the Supremacy Clause: (1) where federal law expressly preempts state law (express preemption); (2) where federal law has occupied the entire field (field preemption); or (3) where there is a conflict between federal law and state law (conflict preemption). Minton, supra, 80 Ohio St.3d at 69, 684 N.E.2d 648. In the case of express preemption, Congress explicitly defines the extent to which its enactments preempt state law. English v. Gen. Elec. Co. (1990), 496 U.S. 72, 78, 110 S.Ct. 2270, 110 L.Ed.2d 65. In the case of field preemption, "state law is pre-empted where it regulates conduct in a field that Congress intended the Federal Government to occupy exclusively. Such an intent may be inferred from a `scheme of federal regulation * * * so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it,' or where an Act of Congress `touches a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.'" Id., 496 U.S. at 79, 110 S.Ct. 2270, 110 L.Ed.2d 65, quoting Rice v. Santa Fe Elevator Corp. (1947), 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447. In the case of conflict preemption, state law is preempted "where it is impossible for a private party to comply with both state and federal requirements," or "where state law `stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'" Id., quoting Hines v. Davidowitz (1941), 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581. Field preemption and conflict preemption are both forms of implied preemption. Gade v. Natl. Solid Wastes Mgt. Assn. (1992), 505 U.S. 88, 98, 112 S.Ct. 2374, 120 L.Ed.2d 73.

{¶ 13} In the present case, the appellees do not argue that the Federal Aviation Act and the Federal Aviation Administration's lighting regulations expressly preempt Leppla's common-law nuisance claim. Nor do the appellees...