Preview
eFiled in Wayne County Ohio on: 08/11/2014
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, : MEMORANDUM IN SUPPORT OF
: DEFENDANT'S MOTION TO
: STAY CASE PENDING
vs. : MOOTNESS
JAMES N. POOLER
Defendant.
Defendant Pooler, has moved this Court to stay the proceedings in this case and to
suspend the current case management order. The reason for this Motion is the recent
recommendation of the Planning Commission of the City of Wooster to the City Counsel
thereof to make certain amendments to the zoning code of the City. These proposed
amendments, if adopted, would eliminate, entirely, the language at issue in this case, thus
depriving this Court of an actual case or controversy upon which to adjudicate.
As the Court is no doubt aware, this case is concerned with the proper application
of the “Exemption for Certain City Property” contained within the Codified Ordinances of
the City of Wooster at §1173.09. The City, however, has recently proposed, and the
Planning Commission recommended to City Counsel to approve, an amendment to that
section. This proposed amendment, attached to this Memorandum, would eliminate the
language in the exemption that the Defendant believes limits its application to “certain”property owned and controlled by the City and, instead, would apply the exemption to all
property owned and controlled by the City, including the property at issue in this case.
City Counsel could act on the proposed zoning amendments as early as their next
meeting on August 18", 2014, and should they adopt the proposed changes to §1173.09
the new language would go into effect thirty days later. As the new language would render
this case, and any decision rendered by this Court prior to the effective date of the
amendment, moot, it is in the interests of judicial economy that this Court stay this case
and suspend the current case management order pending action by the City Counsel of
Wooster on the proposed amendment. There is little point in the parties briefing this Court
on their differing interpretations of language that may remain in effect for less than six
weeks.
Therefore, Defendant Pooler requests that this Court stay this case and suspend
the case management order pending action by the City Counsel of the City of Wooster on
the proposed amendment to Codified Ordinance §1173.09.
Respectfully Submitted,
/s/Jason M. Storck
Jason M. Storck (0077071)
Storck Law Office Ltd.
P.O. Box 1023
Wooster, OH 44691
(330) 263-0006 - Phone
(330) 263-0009 - Fax
jasonstorck@storcklawoffice.com
Attorney for DefendantCertificate of Servi
| hereby certify that a true and accurate copy of the above, along with all exhibits or
attachments thereto, was served upon the following this 11" day of August, 2014 by
electronic mail, as per Rule 5(B)2(f) of the Ohio Rules of Civil Procedure:
Richard R. Benson Jr.
Director of Law
City of Wooster
538 North Market St.
Wooster, Ohio 44691
Stephen L. Byron,
Darrell A. Clay,
Aimee W. Lane, and
Bozana L. Lundgerg
Walter & Haverfield LLP
The Tower at Erieview
1301 East Ninth Street, Suite 3500
Cleveland, Ohio 44114
/s/Jason M, Storck
Jason M. Storck (0077071)NOTES
13
telecommunications towers and facilities. Such wireless telecommunications
tower or facility shall also receive Certificate of Appropriateness approval from
the Design and Review Board per Section 155.06.
1173.09 EXEMPTION OF CERFAIN CITY PROPERTY.
R A} £th £thic Chant. Wireless Tel jeation Facilit
SF P pterS
bi itted + d trolHed-by-the-City-and +} df bhi
YY property y P
services-and On any property owned or controlled by the City, wireless telecommunications
towers or facilities shall be permitted and shall be exempt from the regulations set forth in this
Chapter and any other provisions of this Planning and Zoning Code provided that City
Council has first held a public hearing and approved the location of such tower or facility by a
majority vote. sSuch tower or Efacility shall be constructed, erected, maintained, extended and
removed under such conditions, standards and regulations as may be required by the City
Council.
(a) Notice of the public hearing regarding a wireless telecommunication tower or
facility on a City owned or controlled property shall be given by Council according
to the following:
qd) Notice of the hearing shall be published at least fourteen (14) calendar
days prior to the date of the required public hearing, in one (1) or more
newspapers of general circulation in the City.
(2) Written notice of the required hearing shall be mailed by the Clerk of
Council by first class mail at least fourteen (14) calendar days prior to
the date of the required public hearing to all owners of property within
two hundred (200) feet from the subject property to the address of such
owners appearing on the County Auditor's current tax list or the County
Treasurer's mailing list. The failure to deliver the notification as
provided in this section shall not invalidate any decision made by
Council regarding the location of a wireless telecommunications tower
or facility.
(3) Notices shall include the time and place of the public hearing, a
summary of the proposed placement of the tower or facility and a
statement that the opportunity to be heard will be afforded to any person
interested.
(b) Council may recess such hearings from time to time, and, if the time and place
of the continued hearing is publicly announced at the time of the adjournment,
no further notice shall be required.
(©) During the fourteen (14) days prior to the public hearing, all materials relevant
to the proposed tower or facility placement shall be on file for public
examination in the office of the Clerk of Council or in such other office as is
designated by Council.
32
Preview
eFiled in Wayne County Ohio on: 08/11/2014 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, : MEMORANDUM IN SUPPORT OF : DEFENDANT'S MOTION TO : STAY CASE PENDING vs. : MOOTNESS JAMES N. POOLER Defendant. Defendant Pooler, has moved this Court to stay the proceedings in this case and to suspend the current case management order. The reason for this Motion is the recent recommendation of the Planning Commission of the City of Wooster to the City Counsel thereof to make certain amendments to the zoning code of the City. These proposed amendments, if adopted, would eliminate, entirely, the language at issue in this case, thus depriving this Court of an actual case or controversy upon which to adjudicate. As the Court is no doubt aware, this case is concerned with the proper application of the “Exemption for Certain City Property” contained within the Codified Ordinances of the City of Wooster at §1173.09. The City, however, has recently proposed, and the Planning Commission recommended to City Counsel to approve, an amendment to that section. This proposed amendment, attached to this Memorandum, would eliminate the language in the exemption that the Defendant believes limits its application to “certain”property owned and controlled by the City and, instead, would apply the exemption to all property owned and controlled by the City, including the property at issue in this case. City Counsel could act on the proposed zoning amendments as early as their next meeting on August 18", 2014, and should they adopt the proposed changes to §1173.09 the new language would go into effect thirty days later. As the new language would render this case, and any decision rendered by this Court prior to the effective date of the amendment, moot, it is in the interests of judicial economy that this Court stay this case and suspend the current case management order pending action by the City Counsel of Wooster on the proposed amendment. There is little point in the parties briefing this Court on their differing interpretations of language that may remain in effect for less than six weeks. Therefore, Defendant Pooler requests that this Court stay this case and suspend the case management order pending action by the City Counsel of the City of Wooster on the proposed amendment to Codified Ordinance §1173.09. Respectfully Submitted, /s/Jason M. Storck Jason M. Storck (0077071) Storck Law Office Ltd. P.O. Box 1023 Wooster, OH 44691 (330) 263-0006 - Phone (330) 263-0009 - Fax jasonstorck@storcklawoffice.com Attorney for DefendantCertificate of Servi | hereby certify that a true and accurate copy of the above, along with all exhibits or attachments thereto, was served upon the following this 11" day of August, 2014 by electronic mail, as per Rule 5(B)2(f) of the Ohio Rules of Civil Procedure: Richard R. Benson Jr. Director of Law City of Wooster 538 North Market St. Wooster, Ohio 44691 Stephen L. Byron, Darrell A. Clay, Aimee W. Lane, and Bozana L. Lundgerg Walter & Haverfield LLP The Tower at Erieview 1301 East Ninth Street, Suite 3500 Cleveland, Ohio 44114 /s/Jason M, Storck Jason M. Storck (0077071)NOTES 13 telecommunications towers and facilities. Such wireless telecommunications tower or facility shall also receive Certificate of Appropriateness approval from the Design and Review Board per Section 155.06. 1173.09 EXEMPTION OF CERFAIN CITY PROPERTY. R A} £th £thic Chant. Wireless Tel jeation Facilit SF P pterS bi itted + d trolHed-by-the-City-and +} df bhi YY property y P services-and On any property owned or controlled by the City, wireless telecommunications towers or facilities shall be permitted and shall be exempt from the regulations set forth in this Chapter and any other provisions of this Planning and Zoning Code provided that City Council has first held a public hearing and approved the location of such tower or facility by a majority vote. sSuch tower or Efacility shall be constructed, erected, maintained, extended and removed under such conditions, standards and regulations as may be required by the City Council. (a) Notice of the public hearing regarding a wireless telecommunication tower or facility on a City owned or controlled property shall be given by Council according to the following: qd) Notice of the hearing shall be published at least fourteen (14) calendar days prior to the date of the required public hearing, in one (1) or more newspapers of general circulation in the City. (2) Written notice of the required hearing shall be mailed by the Clerk of Council by first class mail at least fourteen (14) calendar days prior to the date of the required public hearing to all owners of property within two hundred (200) feet from the subject property to the address of such owners appearing on the County Auditor's current tax list or the County Treasurer's mailing list. The failure to deliver the notification as provided in this section shall not invalidate any decision made by Council regarding the location of a wireless telecommunications tower or facility. (3) Notices shall include the time and place of the public hearing, a summary of the proposed placement of the tower or facility and a statement that the opportunity to be heard will be afforded to any person interested. (b) Council may recess such hearings from time to time, and, if the time and place of the continued hearing is publicly announced at the time of the adjournment, no further notice shall be required. (©) During the fourteen (14) days prior to the public hearing, all materials relevant to the proposed tower or facility placement shall be on file for public examination in the office of the Clerk of Council or in such other office as is designated by Council. 32