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BOARD OF TRUSTEES OF VERMILLION TOWNSHIP Plaintiff-Appellee -vsCHRISTIAN BROADCASTING MINISTRIES, ET AL. Defendants-Appellants
Case No. 03COA058
COURT OF APPEALS OF OHIO, FIFTH APPELLATE DISTRICT, ASHLAND
COUNTY
2004-Ohio-3744; 2004 Ohio App. LEXIS 3375
of the
to the
further
court's
LexisNexis(R) Headnotes
Page 2
2004-Ohio-3744, *; 2004 Ohio App. LEXIS 3375, **1
Real Property Law > Zoning & Land Use > State &
Regional Planning
[HN1] A public utility is exempt from township zoning
regulations pursuant to Ohio Rev. Code Ann.
519.211(A). However, 519.211(B)-(E) grants limited
authority to a board of township trustees or a board of
zoning appeals over telecommunication towers owned by
public utilities.
Energy & Utilities Law > Utility Companies > General
Overview
Real Property Law > Zoning & Land Use > General
Overview
[HN2] See Ohio Rev. Code Ann. 519.211(B).
Governments > State & Territorial Governments >
Legislatures
[HN3] It is the job of the legislature to determine issues
of public policy.
COUNSEL: For Plaintiff-Appellee: PAUL O'REILLY,
Ashland County Prosecutor, Millersburg, Ohio.
For Defendant-Appellants: MARK W. BASERMAN,
SR., Ashland, Ohio.
JUDGES: Hon. W. Scott Gwin, P.J., Hon. William B.
Hoffman, J., Hon. Sheila G. Farmer, J. By: Hoffman, J.,
Gwin, P.J., and Farmer, J., concur.
OPINION BY: William B. Hoffman
OPINION
Hoffman, J.
[*P1] Defendants-appellants Christian Broadcasting
Ministries, et al. ("CBM") appeals the March 26, 2003
Judgment Entry entered by the Ashland County Court of
Common Pleas, which overruled CBM's motion for
summary judgment. CBM also appeals the October 2,
2003 Judgment Entry, which granted summary judgment
in favor of plaintiff-appellee Board of Trustees of
Vermillion Township ("the Board").
[*P2] STATEMENT OF THE FACTS AND CASE
[*P3] On September 13, 2001, CBM received a
warranty deed for property located at 2159 St. Rt. 511,
Page 3
2004-Ohio-3744, *P6; 2004 Ohio App. LEXIS 3375, **3
Page 4
2004-Ohio-3744, *P24; 2004 Ohio App. LEXIS 3375, **6
Page 5
2004-Ohio-3744, *P39; 2004 Ohio App. LEXIS 3375, **10
CBM counters such failure does not make the tower per
se unsafe. We find a genuine issue of material fact exists
as to whether the tower is or is not safe. If the tower is
not safe, the Board could potentially have a nuisance
claim. However, such determination of this issue is
premature at the summary judgment stage of the
proceedings. [**11] Accordingly, we reverse the trial
court's finding the tower was a nuisance and remand the
matter to the trial court.
[*P40] The judgment of the Ashland County Court
of Common Pleas is reversed and the matter remanded
for further proceedings in accordance with the law and
this opinion.
By: Hoffman, J.
Gwin, P.J. and
Farmer, J. concur
JUDGMENT ENTRY
For the reasons stated in our accompanying
Memorandum-Opinion, the judgment of the Ashland
County Court of Common Pleas is reversed and the
matter remanded for further proceedings in accordance
with the law and this opinion. Costs assessed to appellee.