Symmes Twp. Bd. of Trustees v. Smyth

• Decision Date: 19 January 2000
• Docket Number: No. 98-2479.,98-2479.
• Citation: 721 NE 2d 1057,87 Ohio St.3d 549
• Parties: SYMMES TOWNSHIP BOARD OF TRUSTEES, APPELLANT, v. SMYTH; AT&T WIRELESS PCS, INC. ET AL., APPELLEES.
• Court: Ohio Supreme Court

87 Ohio St.3d 549

721 NE 2d 1057

SYMMES TOWNSHIP BOARD OF TRUSTEES, APPELLANT, v. SMYTH; AT&T WIRELESS PCS, INC. ET AL., APPELLEES.

No. 98-2479.

Supreme Court of Ohio.

Submitted October 20, 1999.

Decided January 19, 2000.

Robert P. Malloy, Symmes Township Law Director; Wood & Lamping, L.L.P., and W. Kelly Lundrigan, for appellant.

Keating, Muething & Klekamp, P.L.L., Douglas L. Hensley and Dwight A. Packard II, for appellee Henry W. Schneider.

Barrett & Weber, C. Francis Barrett and M. Michele Fleming, for appellees AT&T Wireless PCS, Inc., and SBA, Inc.

Jones, Day, Reavis & Pogue and Randall A. Cole, urging affirmance for amicus curiae, Nextel Communications, Inc.

COOK, J.

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. R.C. 519.211(A). 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." R.C. 519.211(B)(1)(c). Symmes Township, the appellant here, invites us to interpret this exception expansively in order to permit township regulation of telecommunications towers that are proposed for any zoning district where any residential uses are permitted. Because we believe that the township's interpretation is contrary to the language, structure, and purpose of Ohio's zoning laws, we affirm the judgment of the court of appeals.

The zoning authority possessed by townships in the state of Ohio is limited to those powers specifically conferred by the General Assembly. Yorkavitz v. Columbia Twp. Bd. of Trustees (1957), 166 Ohio St. 349, 2 O.O.2d 255, 142 N.E.2d 655. Though R.C. Chapter 519 confers some zoning powers on township trustees, the General Assembly also expressly limits the power of townships to regulate the construction of telecommunications towers by public utilities. R.C. 519.211(A). This general rule exempting public utilities from the zoning power when erecting such towers reads: "Except as otherwise provided in division (B) or (C) of this section, sections 519.02 to 519.25 of the Revised Code confer no power on any board of township trustees or board of zoning appeals in respect to the location, erection, construction, reconstruction, change, alteration, maintenance, removal, use, or enlargement of any buildings or structures of any public utility * * * for the operation of its business." (Emphasis added.) R.C. 519.211(A).

This court has held that wireless telephone, radio, and paging providers are exempt public utilities for purposes of the exemption from township zoning power. See Campanelli v. AT&T Wireless Services, Inc. (1999), 85 Ohio St.3d 103, 107, 706 N.E.2d 1267, 1270; see, also, Marano v. Gibbs (1989), 45 Ohio St.3d 310, 544 N.E.2d 635. Though R.C. 519.211 has been amended by the General Assembly three times since AT&T decided to build the tower that concerns us here, all versions have preserved the general rule exempting public utilities from township zoning regulation.¹

The limited exception to the general rule exempting public utilities from township zoning regulation, found in R.C. 519.211(B), contains the precise language at issue in this case. R.C. 519.211(B) does permit townships to regulate certain telecommunications structures, but only if, among other things, "[t]he free-standing or attached structure is proposed to be located in an unincorporated area of a township, in an area zoned for residential use." (Emphasis added.) R.C. 519.211(B)(1)(c).

Symmes Township wants this court to apply the R.C. 519.211(B) exception in this case and hold that a district zoned "E Retail Business" constitutes "an area zoned for residential use" because some residential uses are permitted in the business district. Though we find that the statutory phrase "an area zoned for residential use" is ambiguous, we agree with the majority of courts that have determined that the language, structure, and purpose of the zoning laws require an interpretation limiting township regulation of telecommunications towers to those towers proposed to be located in primarily residential districts with a "residential" zoning classification.

The Ambiguity of R.C. 519.211(B)(1)(c)

When the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no need for this court to apply the rules of statutory interpretation. Meeks v. Papadopulos (1980), 62 Ohio St.2d 187, 190, 16 O.O.3d 212, 213, 404 N.E.2d 159, 161, citing Sears v. Weimer (1944), 143 Ohio St. 312, 28 O.O. 270, 55 N.E.2d 413, paragraph five of the syllabus. "Where a statute is found to be subject to various interpretations, however, a court called upon to interpret its provisions may invoke rules of statutory construction in order to arrive at the legislative intent." Meeks, supra, 62 Ohio St.2d at 190, 16 O.O.3d at 214, 404 N.E.2d at 162.

Though the court of appeals held that the questioned phrase was unambiguous, we discern that the phrase from R.C. 519.211(B)(1)(c) can be interpreted in at least two ways. The phrase "an area zoned for residential use" could describe, as most Ohio courts have found, a residential area with a residential zoning classification. See, e.g., Symmes Twp. Bd. of Trustees v. Smyth (Nov. 6, 1998), Hamilton App. No. C-971028, unreported, 1998 WL 769725; Watson v. Centel Cellular (July 2, 1992), Licking C.P. No. 92-CV-00289, unreported; Schroeder v. Rofkar (June 23, 1992), Ottawa C.P. No. 92-CVE-137, unreported. And, since most zoning districts permit various uses regardless of their title, the phrase "an area zoned for residential use" could also be interpreted to include those zoning districts—regardless of title or primary use—where residential uses are permitted, as the Second District Court of Appeals concluded in the conflicting case. AT&T Wireless PCS, Inc. v. Beavercreek Twp. Bd. of Zoning Appeals (Oct. 9, 1998), Greene App. No. 98-CA-18, unreported, 1998 WL 698374. The conflict among the appellate courts regarding the meaning of the phrase strongly suggests that the statutory language is ambiguous. Cline v. Ohio Bur. of Motor Vehicles (1991), 61 Ohio St.3d 93, 96-97, 573 N.E.2d 77, 80. This court, in dicta, has already selected the interpretation of the statute that is favored by the majority of Ohio courts and the appellee here. In Campanelli v. AT&T Wireless, supra, Chief Justice Moyer made the following statement regarding the applicability of R.C. 519.211(B): "[T]he record indicates that the telecommunications tower proposed by AT&T in this case does not meet all the guidelines set forth in division (B). Specifically, the proposed tower is not to be erected in `an area zoned for residential use' as required under division (B)(1)(c). Instead, the tower is to be built in an area zoned B-2 General Business. Therefore, construction of this tower cannot be regulated by the township zoning board pursuant to R.C. 519.211(B)." (Emphasis added.) Id., 85 Ohio St.3d at 105, 706 N.E.2d at 1269. Though the interpretive issue that we face here was not squarely before the court in Campanelli, Chief Justice Moyer determined that an area with a business zoning classification is not what is meant by the phrase "an area zoned for residential use." Id.

To aid us in the interpretation of R.C. 519.211(B)(1)(c), we apply two rules of interpretation provided by the General Assembly. In Part A, below, we interpret the statutory phrase according to the common and technical usage of the words therein. R.C. 1.42. In Part B, below, we determine the intent of the legislature by considering the object sought to be attained, laws upon the same or similar subjects, and the consequences of the interpretations proposed by the parties. R.C. 1.49.

Part A: R.C. 1.42—Context and Common Usage

The General Assembly directs courts to read statutory words and phrases in context and construe them according to the rules of grammar and common usage. R.C. 1.42. We begin, therefore, by examining the context in which R.C. 519.211(B) is found. In the context of the township zoning laws, R.C. 519.211(B) constitutes a carefully delimited exception to the general rule in R.C. 519.211(A) that exempts a public utility from township zoning regulations when it erects, alters, or maintains any structures used in the operation of its business. See GTE Wireless of Midwest, Inc. v. Anderson Twp. (June 17, 1999), Franklin App. Nos. 98AP-855 and 98AP-856, unreported, 1999 WL 394943. Appearing as it does immediately after the broadly worded prohibition of township regulation of public utilities in R.C. 519.211(A), therefore, R.C. 519.211(B)(1)(c) represents an exceptional restraint on the use, management, or alienation of private property and should not be extended to include limitations not clearly described therein. See State ex rel. Moore Oil Co. v. Dauben (1919), 99 Ohio St. 406, 411, 124 N.E. 232, 233. Thus, our interpretation allows township regulation of telecommunications to remain the exception rather than the rule as contemplated by the statutory scheme. We also believe that the phrase "an area zoned for residential use" commonly connotes an area specifically set aside for homes and other residences because common definitions of the verb "to zone" include "to mark off," or "to partition * * * by ordinance into zones or sections reserved for different purposes." Webster's Third New International Dictionary (1986) 2660. Thus the phrase "an area zoned for residential use" would commonly describe an area "marked off" or "set aside" for residential—as opposed to commercial, business, agricultural, or industrial—uses.

Symmes Township would have us equate the phrase "zoned for residential use" with the phrase "in which residential use is permitted." But in common parlance, these are different concepts. There is a substantial difference, after all, between a parking space set aside...