On December 03, 2013 a
Motion,Ex Parte
was filed
involving a dispute between
The City Of Wooster, Ohio,
and
Pooler, James N,
for OTHER CIVIL
in the District Court of Wayne County.
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Filed on 08/14/2014 at 03:12 PM in Wayne County, Ohio
IN THE COURT OF COMMON PLEAS
WAYNE COUNTY, OHIO
THE CITY OF WOOSTER, OHIO,
EX REL. RICHARD R. BENSON, JR.,
LAW DIRECTOR,
Plaintiff,
Vv.
JAMES N. POOLER,
Defendant.
CASE NO. 13-CV-0657
JUDGE SPITLER
PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT
Pursuant to Rule 56 of the Ohio Rules of Civil Procedure, and with leave as granted by
this Court’s order of July 1, 2014, Plaintiff The City of Wooster, Ohio (“Wooster”), by and
through its undersigned counsel, hereby moves the Court to grant summary judgment in favor of
Wooster and against Defendant James N. Pooler (“Defendant”), finding as follows:
() Defendant lacks taxpayer standing because he is not enforcing a public
Tight;
(2) Wooster Codified Ordinance § 1173.09 (“Ordinance”) exempts the
property at issue and allows Wooster to construct a telecommunications
tower on it; and
(3) The phrase “used for public services” in the Ordinance applies to use or
proposed use at the time a telecommunications tower is proposed, and not
the use that existed solely at the time of the enactment of the Ordinance.
{01615988 -3}Filed on 08/14/2014 at 03:12 PM in Wayne County, Ohio
As grounds therefore, Wooster incorporates by reference the Memorandum in Support,
the Affidavit of Law Director Richard R. Benson, Jr., and the accompanying exhibits
contemporaneously filed herewith.
WHEREFORE, for good cause shown and in the interests of justice, Wooster respectfully
requests that this Court grant summary judgment in favor of Wooster as to its claims against
Defendant, and that it overrule Defendant’s counterclaims against Wooster.
{01615988 -3)
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, OhioFiled on 08/14/2014 at 03:12 PM in Wayne County, Ohio
CERTIFICATE OF SERVICE
Pursuant to Civil Rule 5(B)(2)(c), I hereby certify that on this 14th day of August, 2014,
a true and correct copy of the foregoing Plaintiff’s Motion for 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
One of the Attorneys for Plaintiff
{01615988 -3) 3
Document Filed Date
August 14, 2014
Case Filing Date
December 03, 2013
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Filed on 08/14/2014 at 03:12 PM in Wayne County, Ohio IN THE COURT OF COMMON PLEAS WAYNE COUNTY, OHIO THE CITY OF WOOSTER, OHIO, EX REL. RICHARD R. BENSON, JR., LAW DIRECTOR, Plaintiff, Vv. JAMES N. POOLER, Defendant. CASE NO. 13-CV-0657 JUDGE SPITLER PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Pursuant to Rule 56 of the Ohio Rules of Civil Procedure, and with leave as granted by this Court’s order of July 1, 2014, Plaintiff The City of Wooster, Ohio (“Wooster”), by and through its undersigned counsel, hereby moves the Court to grant summary judgment in favor of Wooster and against Defendant James N. Pooler (“Defendant”), finding as follows: () Defendant lacks taxpayer standing because he is not enforcing a public Tight; (2) Wooster Codified Ordinance § 1173.09 (“Ordinance”) exempts the property at issue and allows Wooster to construct a telecommunications tower on it; and (3) The phrase “used for public services” in the Ordinance applies to use or proposed use at the time a telecommunications tower is proposed, and not the use that existed solely at the time of the enactment of the Ordinance. {01615988 -3}Filed on 08/14/2014 at 03:12 PM in Wayne County, Ohio As grounds therefore, Wooster incorporates by reference the Memorandum in Support, the Affidavit of Law Director Richard R. Benson, Jr., and the accompanying exhibits contemporaneously filed herewith. WHEREFORE, for good cause shown and in the interests of justice, Wooster respectfully requests that this Court grant summary judgment in favor of Wooster as to its claims against Defendant, and that it overrule Defendant’s counterclaims against Wooster. {01615988 -3) 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, OhioFiled on 08/14/2014 at 03:12 PM in Wayne County, Ohio CERTIFICATE OF SERVICE Pursuant to Civil Rule 5(B)(2)(c), I hereby certify that on this 14th day of August, 2014, a true and correct copy of the foregoing Plaintiff’s Motion for 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 One of the Attorneys for Plaintiff {01615988 -3) 3