Preview
Filed on 08/29/2014 at 08:33 AM in Wayne County, Ohio
IN THE COURT OF COMMON PLEAS
WAYNE COUNTY, OHIO
THE CITY OF WOOSTER, OHIO, CASE NO. 13-CV-0657
EX REL. RICHARD R. BENSON, JR.,
LAW DIRECTOR, JUDGE SPITLER
Plaintiff, PLAINTIFF’S BRIEF IN OPPOSITION
v.
JAMES N. POOLER,
Defendant.
TO DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT
L INTRODUCTION AND SUMMARY OF ARGUMENT
Defendant James N. Pooler’s (“Defendant”) Motion for Summary Judgment makes clear
that his purported taxpayer action amounts to nothing more than a thinly-veiled challenge to how
Plaintiff, The City of Wooster (“Wooster”), interprets Wooster Codified Ordinance (“W.C.O.”)
§ 1173.09 (“Ordinance”). His manufactured syntactical dispute is intended solely to promote his
Copies of each of the Wooster Codified Ordinances referenced herein were
properly authenticated by the Affidavit of Law Director Richard R. Benson, Jr., which was
attached to Plaintiff's Motion for Summary Judgment as Attachment 1. The Ordinances were
appended as Attachment 2 to Plaintiff's Motion for Summary Judgment.
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own personal interests, not those of the public. Defendant fails to allege a public right that he is
seeking to enforce. Therefore, he lacks taxpayer standing.
Further, Defendant has submitted nothing that would create a fair debate on the meaning
of the Ordinance, let alone show “beyond fair debate” that Wooster’s interpretation is invalid.
“Beyond fair debate” is the applicable standard under Ohio law that Defendant must meet before
a court may disturb Wooster’s interpretation. He has utterly failed to meet this burden.
In point of fact, Defendant has disproved his own case. In his Answer, Defendant argued
that as used in the Ordinance, the term “currently” could mean only one, unchanging date — the
date the Ordinance was enacted. Now, contrary to the single theory he originally pled, he
contends that a different date is controlling: the date the Ordinance became effective (thirty days
following adoption thereof). Therefore, the validity of Defendant’s self-serving interpretation of
the Ordinance is belied by his own shifting position. He has disproved the purported absolute and
rigid meaning of the term “currently.” His absurd and self-contradictory arguments must be
rejected outright. Defendant’s Motion for Summary Judgment should be denied.
Instead, the Court should grant summary judgment in favor of Wooster on its previously-
filed Motion for Summary Judgment and declare that the Ordinance exempts the Burbank Road
property (“Property”) owned by Wooster from the regulations set forth in W.C.O. Chapter 1173,
thus allowing construction of a telecommunications tower thereon to proceed.
Il. FACTUAL BACKGROUND
Defendant incorrectly asserts that “[nJeither party disputes ... that the phrase ‘currently
used for public services’ is undefined in the Codified Ordinances of the City of Wooster.” (Mem.
Supp. Def.’s Mot. Summ. J. at 2). Although the terms “currently,” “used,” and “public service”
are not defined in W.C.O. § 1173.09, the term “used” is defined in Wooster’s Zoning Code.
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Specifically, W.C.O. § 1103.01, “Interpretation,” at subsection (d), provides that “[flor the
purpose of this Zoning Code, terms and words used herein shall be interpreted according to this
Section. ... [t]he words ‘used’ and ‘occupied’ include the words ‘arranged, designed,
constructed, altered, or intended to be used.’”” W.C.O. § 1103.01(d) (emphasis added); see also
W.C.O. § 1103.02, Definitions, at subsection (b)(241) (defining “use” to include “the purpose for
which land ... is ... intended”) (emphasis added). Therefore, pursuant to the City Council’s
express definitions in W.C.O. §§ 1103.01 and 1103.02, when the term “used” appears in the
Zoning Code, such as in W.C.O. § 1173.09, it “shall be interpreted” to include “intended” use.
il. LAW AND ARGUMENT
A. Defendant Lacks Taxpayer Standing Because He Fails To Allege That He Is
Enforcing A Public Right.
Defendant lacks taxpayer standing, as required by Ohio Revised Code (“R.C.”) § 733.59,
because he does not seek to enforce a public right. Rather, he is merely seeking to benefit
himself by opposing the construction of a telecommunications tower in the vicinity of his
personal residence. It is, in essence, the classic “Not In My Backyard” complaint that seeks to
promote his own parochial concerns.
No part of Defendant’s Motion for Summary Judgment (or his Counterclaim, for that
matter) addresses any public right that he purports to be enforcing. The law is clear, however,
that “[t]o have standing to pursue a taxpayer claim under R.C. 733.59, a party must not only
satisfy the statutory requirements prior to initiating his action ... but he must also demonstrate
that he is enforcing ‘a right of action on behalf of and for the benefit of the public.’” State ex rel.
Phillips Supply Co. v. Cincinnati, 1st Dist. No. C-120168, 2012-Ohio-6096, 985 N.E.2d 257,
4117 (emphasis added), citing Cincinnati ex rel. Zimmer v. Cincinnati, 1st Dist. No. C-070709,
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176 Ohio App.3d 588, 2008-Ohio-3156, 892 N.E.2d 987, 911, citing State ex rel. Nimon v.
Village of Springdale, 6 Ohio St.2d 1, 215 N.E.2d 592, paragraph two of syllabus (1966).
“{W]hen the taxpayer’s aim is merely for his own benefit, no public right exists, and a
taxpayer action pursuant to R.C. 733.59 cannot be maintained.” City of Cleveland ex rel.
O'Malley v. White, 148 Ohio App.3d 564, 2002-Ohio-3633, 774 N.E.2d 337, 46 (8th Dist.),
citing State ex rel. Caspar v. Dayton, 53 Ohio St.3d 16, 20, 558 N.E.2d 49 (1990). Clearly,
Defendant does not have taxpayer standing because his sole aim is to benefit himself by
opposing construction of a telecommunications tower near his home, despite the fact that —
undisputed by Defendant — the tower will provide essential services (i.¢., police, fire, utilities,
and cellular services) for the benefit of the public at large. (See Mem. Supp. P1.’s Mot. Summ. J.
at 4).
In this regard, the Ohio Supreme Court has made clear that “when a remedy being
pursued is one that is merely for the individual taxpayer’s benefit, the taxpayer cannot claim that
he is vindicating a public right, and he will not have standing to pursue a taxpayer action.” State
ex rel. Teamsters Local Union No. 436 v. Cuyahoga County Bd. of Commrs., 132 Ohio St.3d 47,
2012-Ohio-1861, 969 N.E.2d 224, § 12. Here, Defendant’s opposition to construction of a
telecommunications tower on the Property does not benefit the public at large and, therefore, is
insufficient to establish taxpayer standing. Accordingly, the Court should deny Defendant’s
Motion for Summary Judgment, and dismiss his Counterclaim against Wooster.
B. Defendant’s Motion For Summary Judgment Fails As A Matter Of Law
Because He Cannot Prove Beyond Fair Debate That Wooster’s
Interpretation Of The Ordinance Is Invalid.
Defendant’s Motion for Summary Judgment must be denied because his illogical and
contrived arguments fail to satisfy his burden to show “beyond fair debate” that Wooster’s
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interpretation of the Ordinance is clearly invalid. Defendant fails to recognize that “[i]f the
validity of the legislative zoning classification is fairly debatable, a court will not substitute its
judgment for the legislative judgment.” City of Mayfield Heights v. Cardarelli, 63 Ohio App.3d
812, 815, 580 N.E.2d 457 (8th Dist. 1989), citing Village of Euclid v. Ambler Realty Co., 272
U.S. 365, 388 (1926). Under this “beyond fair debate” standard, it is not enough to present an
alternative interpretation because “judicial judgment is not to be substituted for the legislative
judgment in any case in which the issue is fairly debatable[.]” Phillips Supply, 2012-Ohio-6096,
{ 28 (citation omitted). Instead, to invalidate the City Council’s interpretation, Defendant must
show “the invalidity [to} be plain, apparent and beyond fair debate[.|” Central Motors Corp. v.
Pepper Pike, 63 Ohio App.2d 34, 51, 409 N.E.2d 258 (8th Dist. 1979) (emphasis added).
Defendant’s Motion for Summary Judgment fails to recognize the applicable legal
standards or otherwise muster any arguments sufficient to satisfy those standards. As a result of
his simplistic view of the case, nothing Defendant has alleged comes even close to meeting the
significant burden imposed upon him. Defendant believes this case involves only “an issue of
pure statutory interpretation” and that “this Court should be guided by the standard rules of
statutory construction.” (Mem. Supp. Def.’s Mot. Summ. J. at 3). His Motion for Summary
Judgment proffers dictionary meanings of words, coupled with impermissible and irrelevant
comparisons of the Ordinance to the ordinances of other municipalities.” Neither of these carries
any weight with respect to the proper judicial analysis of this matter. Defendant has failed to
meet his high burden of showing that Wooster’s interpretation of the Ordinance is wrong
“beyond fair debate.”
2 Because Defendant failed to satisfy the requirements Civ. R. 56(C) in connection
with proffering these ordinances, Wooster is contemporaneously filing a Motion to Strike.
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As discussed below, Defendant has not even presented an interpretation that raises a fair
debate between his and Wooster’s interpretation of the Ordinance because his own interpretation
is internally inconsistent and devoid of any logic or reason. In the face of such deficient proof,
this Court’s “judicial judgment is not be substituted” for that of the City Council, Phillips
Supply, 2012 Ohio 6096, 428, and “the legislative judgment must be allowed to control.”
Central Motors, 63 Ohio App. 2d at 50 (emphasis added). Defendant’s arguments all fall short of
showing “beyond fair debate” that Wooster’s interpretation of the Ordinance is invalid.
Therefore, the Court should deny Defendant’s Motion for Summary Judgment.
Cc. Defendant’s Motion For Summary Judgment Fails Because His
Interpretation Of Select Terms In The Ordinance, Without Consideration Of
The Entirety Of The Ordinance, Chapter 1173, Or The Zoning Code
Renders The Ordinance Unworkable, Absurd, and Unreasonable.
Defendant’s goal in this litigation is to limit the Ordinance so that a telecommunications
tower cannot be built on the Property, which is located in proximity to his home. To achieve this
goal, Defendant interprets the Ordinance so as to limit the exemption it otherwise provides for
City property to only that property owned by the City when the Ordinance was originally enacted
in 2007. In his Motion for Summary Judgment, Defendant contradicts his own interpretation of
the Ordinance by claiming the Ordinance only applies to property owned on the effective date.
His interpretations are self-contradictory, have no textual support in the language of the
Ordinance, nor in Chapter 1173, nor in the Zoning Code as a whole, and make absolutely no
sense when viewed in the context of zoning or city planning. They merely serve his purely
private interest in this case because it just so happens that Wooster did not own the Property
when the Ordinance was enacted seven years ago, nor when it became effective thirty days
thereafter. This argument is a red herring because past ownership does not matter, nor should it if
the Ordinance is to be a living and breathing legislative enactment.
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Defendant says in his statement of facts that “(a]lso undisputed is that the City did not
own the Property on the effective date of § 1173.09.” (Mem. Supp. Def.’s Mot. Summ. J. at 2).
This is where Defendant’s argument begins to fail. Section 1173.09 does not require that a
property be owned in the past. In fact, as Defendant admits, § 1173.09 requires that a property
be owned now (when a project is assessed). (Mem. Supp. Def.’s Mot. Summ. J. at 5) (as to the
“two phrases in § 1173.09 ... [t]he first, ‘property owned or controlled by the City’ does not
really figure into the dispute between the parties ... the parties do not dispute that the Property,
now owned by the City, qualifies under this phrase.”). If one requirement of the Ordinance is that
a property be owned now, then the Ordinance cannot logically be interpreted to require
ownership in the past. Therefore, by the explicit language of the Ordinance and Defendant’s own
admission, the fact that Wooster did not own the Property in the past does not and cannot be
interpreted as relevant to this case. It is not what the Ordinance requires, and it directly
contradicts the Ordinance. This begs the question as to how Defendant concluded, using his
theory of “currently” to mean 2007 or 2008, that the Property was not “used” by Wooster at that
time. The only factual allegation he made was lack of ownership in the past — a fact which,
again, by the express language of the Ordinance and Defendant’s own admission, cannot be a
factor. Defendant’s argument is self-defeating and a non-starter. The Court should reject it
outright.
The validity of Defendant’s narrow interpretation of the Ordinance is also belied by his
own shifting logic. Defendant’s entire argument in his Answer and Counterclaim was that the
term “currently” meant only one, unchanging date — the date the Ordinance was enacted.
(Answer & Counterclaim (“Answer”) ff] 30, 32). Defendant stated that he “interprets the term
‘currently used for public services’ to mean those properties used for public services at the time
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of enactment of § 1173.09, as to read otherwise would either read the word ‘currently’ out of the
ordinance entirely ... or would read it to mean something other than ‘at the present time.”
(Answer § 32). He insisted that the time to which “currently” referred could not — as Wooster
interpreted it — change.
Now, this unchanging date has somehow changed. It is no longer the date of enactment,
but a future date — the date when the Ordinance became effective. (Mem. Supp. Def.’s Mot.
Summ. J. at 6). Defendant has, by his own Motion for Summary Judgment, disproved the
purported absolute and rigid meaning of the term “currently.” (Compare Mem. Supp. Def.’s Mot.
Summ. J. at 6 (“the only plausible effect of the word ‘currently’ is to mean at the time of the
effective date of the Ordinance”) and Answer 932 (“Defendant Pooler interprets the term
‘currently used for public services’ to mean ... at the time of enactment”)) (emphasis added).
Clearly, Defendant has contradicted his own theory in this case. Contrary to Defendant’s blanket
assertion that “Defendant’s interpretation ... is the only one that a reasonable mind could come
to,” his interpretation is in fact unreasonable. (Mem. Supp. Def.’s Mot. Summ. J. at 4).
Defendant’s self-contradictory interpretation should be rejected outright.
Defendant’s narrow interpretation should also be rejected because it focuses on a few
generic rules of statutory interpretation that ignore both the intent of the City Council and the
absurd results that would flow therefrom. When applied correctly, however, such rules actually
favor Wooster’s position. For example, Defendant argues that as to the term “currently” in the
Ordinance, “‘the rules of grammar and common usage’ indicate that, rather than a general
statement in the present tense, the phrase ‘currently used for public services’ is a statement of a
specific moment in time.” (Mem. Supp. Def.’s Mot. Summ. J. at 5). Not only has Defendant
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himself disproved this theory, as discussed above, but this interpretation is nothing more than
one interpretation based upon only one rule, among many, of statutory interpretation.
Contrary to Defendant’s flawed explanation of the rules of statutory interpretation, the
Ohio Supreme Court has held that “[t]he paramount goal of statutory construction is to ascertain
and give effect to the legislature’s intent in enacting the statute.” Brooks Capital Servs., LLC v.
5151 Trabue Ltd., 10th Dist. No. 12AP-30, 2012-Ohio-4539, 2012 WL 6520232, ¥ 16, citing
Yonkings v. Wilkinson, 86 Ohio St.3d 225, 227, 714 N.E.2d 394 (1999) (emphasis added). See
also Slater v. Cave, 3 Ohio St. 80, 82 (1853) (“The great object of the rules and maxims of
interpretation has been to discover the true intention of the law.”). Therefore, more important
than the dictionary meaning of a term or the grammar in a sentence is giving effect to the
legislature’s intent. Defendant focuses only on the literal meaning of one or two isolated
words in the Ordinance, even though his interpretation of those terms is inconsistent and leads to
absurd results. If Defendant’s interpretation were adopted, then telecommunications towers
would be limited to property used by Wooster in 2007 or 2008, and Wooster would otherwise be
frozen in time and prohibited from future development planning. Defendant's interpretation is
also absurd because there is no reason to put in place a grandfathering provision on property used
for public services in 2007 or 2008 to protect a speculative use of that property in the future
which might never come to be. Equally absurd is interpreting the Ordinance to require Wooster
to reach back to 2007 or 2008 in order to figure out whether it used a property at that time?
Defendant’s interpretation is also contrary to the established rule of statutory construction
that ordinances should be interpreted to avoid absurd results. See Crowl v. DeLuca, 29 Ohio
St.2d 53, 58, 278 N.E.2d 352 (1972), citing State ex rel. Haines, v. Rhodes, 168 Ohio St. 165,
3 The foregoing arguments by Wooster are more fully discussed in Wooster’s
Motion for Summary Judgment. (See Mem. Supp. P1.’s Mot. Summ. J. at 17-22).
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151 N.E.2d 716, second paragraph of syllabus (1958) (“The General Assembly is presumed not
to intend any ridiculous or absurd results from the operation of a statute which it enacts, and, if
reasonably possible to do so, statutes must be construed so as to prevent such results.”)
(emphasis added); State v. Beck, No. L-00-1061, 2000 WL 1595725, at *2 (6th Dist. Oct. 27,
2000), citing Slater, 3 Ohio St. at 83 (1853) (“where the literal construction of a statute would
lead to gross absurdity ... the obvious intention of the law must prevail over a literal
interpretation, and it is even said, that provisions leading to collateral consequences of great
absurdity or injustice, may be rejected as absolutely void.”) (emphasis added). Defendant’s
inconsistent and absurd interpretation must be rejected.
Defendant also argues that the use of the term “certain” in the title of the Ordinance
supports his restrictive view of the Ordinance. (Mem. Supp. Def.’s Mot. Summ. J. at 4). First, the
term “certain” is not in conflict, but is consistent with, Wooster’s interpretation of the Ordinance.
The term “certain” refers to property meeting two requirements: the property is to be owned and
controlled by Wooster and the property is to be currently used for public services. Clearly, the
term “certain” is neutral and does not weigh in favor of Defendant. To the contrary, what weighs
against Defendant’s interpretation are the terms “exemption” and “regardless” that are found in
the title and the text of the Ordinance. These terms indicate that the City Council’s intent was to
promote placement of telecommunications towers on City property. If the City Council had
intended to restrict telecommunications towers, as Defendant argues, it would not have used the
term “exemption,” and it would not have said “regardless” of the restrictions immediately
preceding W.C.O. § 1173.09 which were imposed on non-City owned or controlled property. To
accept Defendant’s interpretation would be to ignore the intent of the City Council, contrary to
well-established Ohio Supreme Court precedent.
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There are many other reasons for rejecting Defendant’s interpretation. Defendant never
offers any reason why a zoning exemption should be interpreted to actually restrict construction
of telecommunications towers. He never explains why a zoning ordinance applicable to future
telecommunications towers should be interpreted to limit such future unknown use to only
property used in the past. He never explains how a past use for public services in 2007 or 2008
makes a telecommunications tower exempt in 2014 if the property at issue should no longer be
used for public services in 2014. The absurd implications of Defendant’s interpretation are
endless. As set forth in Plaintiff's Motion for Summary Judgment, these flaws in Defendant’s
argument make clear that his self-serving interpretation of the Ordinance must be rejected.
The Court should deny Defendant’s Motion for Summary Judgment. Further, the Court
should rule in favor of Wooster and grant Wooster’s Motion for Summary Judgment.
IV. CONCLUSION
For the foregoing reasons, as well as the reasons set forth in Wooster’s own previously-
filed Motion for Summary Judgment, the Court should deny Defendant’s Motion for Summary
Judgment. Wooster further respectfully requests that the Court grant summary judgment in favor
of Wooster as a matter of law, finding as follows:
qd) Defendant lacks taxpayer standing because he is not enforcing a public right;
(2) W.C.O. § 1173.09 exempts the Property and allows Wooster to construct a
telecommunications tower on it; and
(3) The phrase “currently used for public services” in W.C.O. § 1173.09 applies to
use or proposed use at the time a telecommunications tower is proposed, and not use which
existed solely at the time of the enactment or the effective date of the Ordinance.
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Accordingly, Wooster is entitled to judgment as a matter of law in its favor on all counts
of the Complaint, as well as on all counts of Defendant’s counterclaim.
Respectfully submitted,
:
RICHARD R. BENSON, JR. (Reg. No. 0021968)
Director of Law
City of Wooster
538 North Market Street
Wooster, OH 44691
Phone: 330-263-5248
Facsimile: 330-263-5247
E-mail: dbenson@woosteroh.com
STEPHEN L. BYRON (Reg. No. 0055657)
Direct Dial: 216-928-2892
DARRELL A. CLAY (Reg. No. 0067598)
Direct Dial: 216-928-2896
AIMEE W. LANE (Reg. No. 0071392)
Direct Dial: 216-928-2985
WALTER & HAVERFIELD LLP
The Tower at Erieview
1301 East Ninth Street, Suite 3500
Cleveland, OH 44114-1821
E-mail:sbyron@walterhav.com
E-mail:dclay@walterhav.com
E-mail: alane@walterhav.com
Facsimile: 216-575-0911
Attorneys for Plaintiff City of Wooster, Ohio
{01658030 -4} 12Filed on 08/29/2014 at 08:33 AM in Wayne County, Ohio
CERTIFICATE OF SERVICE
Pursuant to Civil Rule 5(B)(2)(c), I hereby certify that on this 28th day of August, 2014,
a true and correct copy of the foregoing Plaintiff's Brief in Opposition to Defendant’s Motion
Sor Summary Judgment was served by ordinary U.S. Mail, first-class postage prepaid, properly
addressed, on the following:
Jason M. Storck, Esq.
Storck Law Office, Ltd.
Post Office Box 1023
Wooster, Ohio 44691
¢ of the Attorneys for Plaintiff
{01658030 -4} 13
Preview
Filed on 08/29/2014 at 08:33 AM in Wayne County, Ohio IN THE COURT OF COMMON PLEAS WAYNE COUNTY, OHIO THE CITY OF WOOSTER, OHIO, CASE NO. 13-CV-0657 EX REL. RICHARD R. BENSON, JR., LAW DIRECTOR, JUDGE SPITLER Plaintiff, PLAINTIFF’S BRIEF IN OPPOSITION v. JAMES N. POOLER, Defendant. TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT L INTRODUCTION AND SUMMARY OF ARGUMENT Defendant James N. Pooler’s (“Defendant”) Motion for Summary Judgment makes clear that his purported taxpayer action amounts to nothing more than a thinly-veiled challenge to how Plaintiff, The City of Wooster (“Wooster”), interprets Wooster Codified Ordinance (“W.C.O.”) § 1173.09 (“Ordinance”). His manufactured syntactical dispute is intended solely to promote his Copies of each of the Wooster Codified Ordinances referenced herein were properly authenticated by the Affidavit of Law Director Richard R. Benson, Jr., which was attached to Plaintiff's Motion for Summary Judgment as Attachment 1. The Ordinances were appended as Attachment 2 to Plaintiff's Motion for Summary Judgment. {01658030 -4)Filed on 08/29/2014 at 08:33 AM in Wayne County, Ohio own personal interests, not those of the public. Defendant fails to allege a public right that he is seeking to enforce. Therefore, he lacks taxpayer standing. Further, Defendant has submitted nothing that would create a fair debate on the meaning of the Ordinance, let alone show “beyond fair debate” that Wooster’s interpretation is invalid. “Beyond fair debate” is the applicable standard under Ohio law that Defendant must meet before a court may disturb Wooster’s interpretation. He has utterly failed to meet this burden. In point of fact, Defendant has disproved his own case. In his Answer, Defendant argued that as used in the Ordinance, the term “currently” could mean only one, unchanging date — the date the Ordinance was enacted. Now, contrary to the single theory he originally pled, he contends that a different date is controlling: the date the Ordinance became effective (thirty days following adoption thereof). Therefore, the validity of Defendant’s self-serving interpretation of the Ordinance is belied by his own shifting position. He has disproved the purported absolute and rigid meaning of the term “currently.” His absurd and self-contradictory arguments must be rejected outright. Defendant’s Motion for Summary Judgment should be denied. Instead, the Court should grant summary judgment in favor of Wooster on its previously- filed Motion for Summary Judgment and declare that the Ordinance exempts the Burbank Road property (“Property”) owned by Wooster from the regulations set forth in W.C.O. Chapter 1173, thus allowing construction of a telecommunications tower thereon to proceed. Il. FACTUAL BACKGROUND Defendant incorrectly asserts that “[nJeither party disputes ... that the phrase ‘currently used for public services’ is undefined in the Codified Ordinances of the City of Wooster.” (Mem. Supp. Def.’s Mot. Summ. J. at 2). Although the terms “currently,” “used,” and “public service” are not defined in W.C.O. § 1173.09, the term “used” is defined in Wooster’s Zoning Code. {01658030 4} 2Filed on 08/29/2014 at 08:33 AM in Wayne County, Ohio Specifically, W.C.O. § 1103.01, “Interpretation,” at subsection (d), provides that “[flor the purpose of this Zoning Code, terms and words used herein shall be interpreted according to this Section. ... [t]he words ‘used’ and ‘occupied’ include the words ‘arranged, designed, constructed, altered, or intended to be used.’”” W.C.O. § 1103.01(d) (emphasis added); see also W.C.O. § 1103.02, Definitions, at subsection (b)(241) (defining “use” to include “the purpose for which land ... is ... intended”) (emphasis added). Therefore, pursuant to the City Council’s express definitions in W.C.O. §§ 1103.01 and 1103.02, when the term “used” appears in the Zoning Code, such as in W.C.O. § 1173.09, it “shall be interpreted” to include “intended” use. il. LAW AND ARGUMENT A. Defendant Lacks Taxpayer Standing Because He Fails To Allege That He Is Enforcing A Public Right. Defendant lacks taxpayer standing, as required by Ohio Revised Code (“R.C.”) § 733.59, because he does not seek to enforce a public right. Rather, he is merely seeking to benefit himself by opposing the construction of a telecommunications tower in the vicinity of his personal residence. It is, in essence, the classic “Not In My Backyard” complaint that seeks to promote his own parochial concerns. No part of Defendant’s Motion for Summary Judgment (or his Counterclaim, for that matter) addresses any public right that he purports to be enforcing. The law is clear, however, that “[t]o have standing to pursue a taxpayer claim under R.C. 733.59, a party must not only satisfy the statutory requirements prior to initiating his action ... but he must also demonstrate that he is enforcing ‘a right of action on behalf of and for the benefit of the public.’” State ex rel. Phillips Supply Co. v. Cincinnati, 1st Dist. No. C-120168, 2012-Ohio-6096, 985 N.E.2d 257, 4117 (emphasis added), citing Cincinnati ex rel. Zimmer v. Cincinnati, 1st Dist. No. C-070709, {01658030 -4} 3Filed on 08/29/2014 at 08:33 AM in Wayne County, Ohio 176 Ohio App.3d 588, 2008-Ohio-3156, 892 N.E.2d 987, 911, citing State ex rel. Nimon v. Village of Springdale, 6 Ohio St.2d 1, 215 N.E.2d 592, paragraph two of syllabus (1966). “{W]hen the taxpayer’s aim is merely for his own benefit, no public right exists, and a taxpayer action pursuant to R.C. 733.59 cannot be maintained.” City of Cleveland ex rel. O'Malley v. White, 148 Ohio App.3d 564, 2002-Ohio-3633, 774 N.E.2d 337, 46 (8th Dist.), citing State ex rel. Caspar v. Dayton, 53 Ohio St.3d 16, 20, 558 N.E.2d 49 (1990). Clearly, Defendant does not have taxpayer standing because his sole aim is to benefit himself by opposing construction of a telecommunications tower near his home, despite the fact that — undisputed by Defendant — the tower will provide essential services (i.¢., police, fire, utilities, and cellular services) for the benefit of the public at large. (See Mem. Supp. P1.’s Mot. Summ. J. at 4). In this regard, the Ohio Supreme Court has made clear that “when a remedy being pursued is one that is merely for the individual taxpayer’s benefit, the taxpayer cannot claim that he is vindicating a public right, and he will not have standing to pursue a taxpayer action.” State ex rel. Teamsters Local Union No. 436 v. Cuyahoga County Bd. of Commrs., 132 Ohio St.3d 47, 2012-Ohio-1861, 969 N.E.2d 224, § 12. Here, Defendant’s opposition to construction of a telecommunications tower on the Property does not benefit the public at large and, therefore, is insufficient to establish taxpayer standing. Accordingly, the Court should deny Defendant’s Motion for Summary Judgment, and dismiss his Counterclaim against Wooster. B. Defendant’s Motion For Summary Judgment Fails As A Matter Of Law Because He Cannot Prove Beyond Fair Debate That Wooster’s Interpretation Of The Ordinance Is Invalid. Defendant’s Motion for Summary Judgment must be denied because his illogical and contrived arguments fail to satisfy his burden to show “beyond fair debate” that Wooster’s {01658030 -4} 4Filed on 08/29/2014 at 08:33 AM in Wayne County, Ohio interpretation of the Ordinance is clearly invalid. Defendant fails to recognize that “[i]f the validity of the legislative zoning classification is fairly debatable, a court will not substitute its judgment for the legislative judgment.” City of Mayfield Heights v. Cardarelli, 63 Ohio App.3d 812, 815, 580 N.E.2d 457 (8th Dist. 1989), citing Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 388 (1926). Under this “beyond fair debate” standard, it is not enough to present an alternative interpretation because “judicial judgment is not to be substituted for the legislative judgment in any case in which the issue is fairly debatable[.]” Phillips Supply, 2012-Ohio-6096, { 28 (citation omitted). Instead, to invalidate the City Council’s interpretation, Defendant must show “the invalidity [to} be plain, apparent and beyond fair debate[.|” Central Motors Corp. v. Pepper Pike, 63 Ohio App.2d 34, 51, 409 N.E.2d 258 (8th Dist. 1979) (emphasis added). Defendant’s Motion for Summary Judgment fails to recognize the applicable legal standards or otherwise muster any arguments sufficient to satisfy those standards. As a result of his simplistic view of the case, nothing Defendant has alleged comes even close to meeting the significant burden imposed upon him. Defendant believes this case involves only “an issue of pure statutory interpretation” and that “this Court should be guided by the standard rules of statutory construction.” (Mem. Supp. Def.’s Mot. Summ. J. at 3). His Motion for Summary Judgment proffers dictionary meanings of words, coupled with impermissible and irrelevant comparisons of the Ordinance to the ordinances of other municipalities.” Neither of these carries any weight with respect to the proper judicial analysis of this matter. Defendant has failed to meet his high burden of showing that Wooster’s interpretation of the Ordinance is wrong “beyond fair debate.” 2 Because Defendant failed to satisfy the requirements Civ. R. 56(C) in connection with proffering these ordinances, Wooster is contemporaneously filing a Motion to Strike. {01658030 -4} 5Filed on 08/29/2014 at 08:33 AM in Wayne County, Ohio As discussed below, Defendant has not even presented an interpretation that raises a fair debate between his and Wooster’s interpretation of the Ordinance because his own interpretation is internally inconsistent and devoid of any logic or reason. In the face of such deficient proof, this Court’s “judicial judgment is not be substituted” for that of the City Council, Phillips Supply, 2012 Ohio 6096, 428, and “the legislative judgment must be allowed to control.” Central Motors, 63 Ohio App. 2d at 50 (emphasis added). Defendant’s arguments all fall short of showing “beyond fair debate” that Wooster’s interpretation of the Ordinance is invalid. Therefore, the Court should deny Defendant’s Motion for Summary Judgment. Cc. Defendant’s Motion For Summary Judgment Fails Because His Interpretation Of Select Terms In The Ordinance, Without Consideration Of The Entirety Of The Ordinance, Chapter 1173, Or The Zoning Code Renders The Ordinance Unworkable, Absurd, and Unreasonable. Defendant’s goal in this litigation is to limit the Ordinance so that a telecommunications tower cannot be built on the Property, which is located in proximity to his home. To achieve this goal, Defendant interprets the Ordinance so as to limit the exemption it otherwise provides for City property to only that property owned by the City when the Ordinance was originally enacted in 2007. In his Motion for Summary Judgment, Defendant contradicts his own interpretation of the Ordinance by claiming the Ordinance only applies to property owned on the effective date. His interpretations are self-contradictory, have no textual support in the language of the Ordinance, nor in Chapter 1173, nor in the Zoning Code as a whole, and make absolutely no sense when viewed in the context of zoning or city planning. They merely serve his purely private interest in this case because it just so happens that Wooster did not own the Property when the Ordinance was enacted seven years ago, nor when it became effective thirty days thereafter. This argument is a red herring because past ownership does not matter, nor should it if the Ordinance is to be a living and breathing legislative enactment. {01658030 -4} 6Filed on 08/29/2014 at 08:33 AM in Wayne County, Ohio Defendant says in his statement of facts that “(a]lso undisputed is that the City did not own the Property on the effective date of § 1173.09.” (Mem. Supp. Def.’s Mot. Summ. J. at 2). This is where Defendant’s argument begins to fail. Section 1173.09 does not require that a property be owned in the past. In fact, as Defendant admits, § 1173.09 requires that a property be owned now (when a project is assessed). (Mem. Supp. Def.’s Mot. Summ. J. at 5) (as to the “two phrases in § 1173.09 ... [t]he first, ‘property owned or controlled by the City’ does not really figure into the dispute between the parties ... the parties do not dispute that the Property, now owned by the City, qualifies under this phrase.”). If one requirement of the Ordinance is that a property be owned now, then the Ordinance cannot logically be interpreted to require ownership in the past. Therefore, by the explicit language of the Ordinance and Defendant’s own admission, the fact that Wooster did not own the Property in the past does not and cannot be interpreted as relevant to this case. It is not what the Ordinance requires, and it directly contradicts the Ordinance. This begs the question as to how Defendant concluded, using his theory of “currently” to mean 2007 or 2008, that the Property was not “used” by Wooster at that time. The only factual allegation he made was lack of ownership in the past — a fact which, again, by the express language of the Ordinance and Defendant’s own admission, cannot be a factor. Defendant’s argument is self-defeating and a non-starter. The Court should reject it outright. The validity of Defendant’s narrow interpretation of the Ordinance is also belied by his own shifting logic. Defendant’s entire argument in his Answer and Counterclaim was that the term “currently” meant only one, unchanging date — the date the Ordinance was enacted. (Answer & Counterclaim (“Answer”) ff] 30, 32). Defendant stated that he “interprets the term ‘currently used for public services’ to mean those properties used for public services at the time {01658030 -4} 7Filed on 08/29/2014 at 08:33 AM in Wayne County, Ohio of enactment of § 1173.09, as to read otherwise would either read the word ‘currently’ out of the ordinance entirely ... or would read it to mean something other than ‘at the present time.” (Answer § 32). He insisted that the time to which “currently” referred could not — as Wooster interpreted it — change. Now, this unchanging date has somehow changed. It is no longer the date of enactment, but a future date — the date when the Ordinance became effective. (Mem. Supp. Def.’s Mot. Summ. J. at 6). Defendant has, by his own Motion for Summary Judgment, disproved the purported absolute and rigid meaning of the term “currently.” (Compare Mem. Supp. Def.’s Mot. Summ. J. at 6 (“the only plausible effect of the word ‘currently’ is to mean at the time of the effective date of the Ordinance”) and Answer 932 (“Defendant Pooler interprets the term ‘currently used for public services’ to mean ... at the time of enactment”)) (emphasis added). Clearly, Defendant has contradicted his own theory in this case. Contrary to Defendant’s blanket assertion that “Defendant’s interpretation ... is the only one that a reasonable mind could come to,” his interpretation is in fact unreasonable. (Mem. Supp. Def.’s Mot. Summ. J. at 4). Defendant’s self-contradictory interpretation should be rejected outright. Defendant’s narrow interpretation should also be rejected because it focuses on a few generic rules of statutory interpretation that ignore both the intent of the City Council and the absurd results that would flow therefrom. When applied correctly, however, such rules actually favor Wooster’s position. For example, Defendant argues that as to the term “currently” in the Ordinance, “‘the rules of grammar and common usage’ indicate that, rather than a general statement in the present tense, the phrase ‘currently used for public services’ is a statement of a specific moment in time.” (Mem. Supp. Def.’s Mot. Summ. J. at 5). Not only has Defendant {01658030 -4) 8Filed on 08/29/2014 at 08:33 AM in Wayne County, Ohio himself disproved this theory, as discussed above, but this interpretation is nothing more than one interpretation based upon only one rule, among many, of statutory interpretation. Contrary to Defendant’s flawed explanation of the rules of statutory interpretation, the Ohio Supreme Court has held that “[t]he paramount goal of statutory construction is to ascertain and give effect to the legislature’s intent in enacting the statute.” Brooks Capital Servs., LLC v. 5151 Trabue Ltd., 10th Dist. No. 12AP-30, 2012-Ohio-4539, 2012 WL 6520232, ¥ 16, citing Yonkings v. Wilkinson, 86 Ohio St.3d 225, 227, 714 N.E.2d 394 (1999) (emphasis added). See also Slater v. Cave, 3 Ohio St. 80, 82 (1853) (“The great object of the rules and maxims of interpretation has been to discover the true intention of the law.”). Therefore, more important than the dictionary meaning of a term or the grammar in a sentence is giving effect to the legislature’s intent. Defendant focuses only on the literal meaning of one or two isolated words in the Ordinance, even though his interpretation of those terms is inconsistent and leads to absurd results. If Defendant’s interpretation were adopted, then telecommunications towers would be limited to property used by Wooster in 2007 or 2008, and Wooster would otherwise be frozen in time and prohibited from future development planning. Defendant's interpretation is also absurd because there is no reason to put in place a grandfathering provision on property used for public services in 2007 or 2008 to protect a speculative use of that property in the future which might never come to be. Equally absurd is interpreting the Ordinance to require Wooster to reach back to 2007 or 2008 in order to figure out whether it used a property at that time? Defendant’s interpretation is also contrary to the established rule of statutory construction that ordinances should be interpreted to avoid absurd results. See Crowl v. DeLuca, 29 Ohio St.2d 53, 58, 278 N.E.2d 352 (1972), citing State ex rel. Haines, v. Rhodes, 168 Ohio St. 165, 3 The foregoing arguments by Wooster are more fully discussed in Wooster’s Motion for Summary Judgment. (See Mem. Supp. P1.’s Mot. Summ. J. at 17-22). {01658030 -4} 9Filed on 08/29/2014 at 08:33 AM in Wayne County, Ohio 151 N.E.2d 716, second paragraph of syllabus (1958) (“The General Assembly is presumed not to intend any ridiculous or absurd results from the operation of a statute which it enacts, and, if reasonably possible to do so, statutes must be construed so as to prevent such results.”) (emphasis added); State v. Beck, No. L-00-1061, 2000 WL 1595725, at *2 (6th Dist. Oct. 27, 2000), citing Slater, 3 Ohio St. at 83 (1853) (“where the literal construction of a statute would lead to gross absurdity ... the obvious intention of the law must prevail over a literal interpretation, and it is even said, that provisions leading to collateral consequences of great absurdity or injustice, may be rejected as absolutely void.”) (emphasis added). Defendant’s inconsistent and absurd interpretation must be rejected. Defendant also argues that the use of the term “certain” in the title of the Ordinance supports his restrictive view of the Ordinance. (Mem. Supp. Def.’s Mot. Summ. J. at 4). First, the term “certain” is not in conflict, but is consistent with, Wooster’s interpretation of the Ordinance. The term “certain” refers to property meeting two requirements: the property is to be owned and controlled by Wooster and the property is to be currently used for public services. Clearly, the term “certain” is neutral and does not weigh in favor of Defendant. To the contrary, what weighs against Defendant’s interpretation are the terms “exemption” and “regardless” that are found in the title and the text of the Ordinance. These terms indicate that the City Council’s intent was to promote placement of telecommunications towers on City property. If the City Council had intended to restrict telecommunications towers, as Defendant argues, it would not have used the term “exemption,” and it would not have said “regardless” of the restrictions immediately preceding W.C.O. § 1173.09 which were imposed on non-City owned or controlled property. To accept Defendant’s interpretation would be to ignore the intent of the City Council, contrary to well-established Ohio Supreme Court precedent. {01658030 -4} 10Filed on 08/29/2014 at 08:33 AM in Wayne County, Ohio There are many other reasons for rejecting Defendant’s interpretation. Defendant never offers any reason why a zoning exemption should be interpreted to actually restrict construction of telecommunications towers. He never explains why a zoning ordinance applicable to future telecommunications towers should be interpreted to limit such future unknown use to only property used in the past. He never explains how a past use for public services in 2007 or 2008 makes a telecommunications tower exempt in 2014 if the property at issue should no longer be used for public services in 2014. The absurd implications of Defendant’s interpretation are endless. As set forth in Plaintiff's Motion for Summary Judgment, these flaws in Defendant’s argument make clear that his self-serving interpretation of the Ordinance must be rejected. The Court should deny Defendant’s Motion for Summary Judgment. Further, the Court should rule in favor of Wooster and grant Wooster’s Motion for Summary Judgment. IV. CONCLUSION For the foregoing reasons, as well as the reasons set forth in Wooster’s own previously- filed Motion for Summary Judgment, the Court should deny Defendant’s Motion for Summary Judgment. Wooster further respectfully requests that the Court grant summary judgment in favor of Wooster as a matter of law, finding as follows: qd) Defendant lacks taxpayer standing because he is not enforcing a public right; (2) W.C.O. § 1173.09 exempts the Property and allows Wooster to construct a telecommunications tower on it; and (3) The phrase “currently used for public services” in W.C.O. § 1173.09 applies to use or proposed use at the time a telecommunications tower is proposed, and not use which existed solely at the time of the enactment or the effective date of the Ordinance. {01658030 -4} 1lFiled on 08/29/2014 at 08:33 AM in Wayne County, Ohio Accordingly, Wooster is entitled to judgment as a matter of law in its favor on all counts of the Complaint, as well as on all counts of Defendant’s counterclaim. Respectfully submitted, : RICHARD R. BENSON, JR. (Reg. No. 0021968) Director of Law City of Wooster 538 North Market Street Wooster, OH 44691 Phone: 330-263-5248 Facsimile: 330-263-5247 E-mail: dbenson@woosteroh.com STEPHEN L. BYRON (Reg. No. 0055657) Direct Dial: 216-928-2892 DARRELL A. CLAY (Reg. No. 0067598) Direct Dial: 216-928-2896 AIMEE W. LANE (Reg. No. 0071392) Direct Dial: 216-928-2985 WALTER & HAVERFIELD LLP The Tower at Erieview 1301 East Ninth Street, Suite 3500 Cleveland, OH 44114-1821 E-mail:sbyron@walterhav.com E-mail:dclay@walterhav.com E-mail: alane@walterhav.com Facsimile: 216-575-0911 Attorneys for Plaintiff City of Wooster, Ohio {01658030 -4} 12Filed on 08/29/2014 at 08:33 AM in Wayne County, Ohio CERTIFICATE OF SERVICE Pursuant to Civil Rule 5(B)(2)(c), I hereby certify that on this 28th day of August, 2014, a true and correct copy of the foregoing Plaintiff's Brief in Opposition to Defendant’s Motion Sor Summary Judgment was served by ordinary U.S. Mail, first-class postage prepaid, properly addressed, on the following: Jason M. Storck, Esq. Storck Law Office, Ltd. Post Office Box 1023 Wooster, Ohio 44691 ¢ of the Attorneys for Plaintiff {01658030 -4} 13