Preview
eFiled in Wayne County Ohio on: 07/29/2014
Exhibit A
Affidavit of Dr. Alicia Brazeau
State of Ohio )
) ss:
County of Wayne )
Dr. Alicia Brazeau, known to me to be of lawful age, personally appeared before me this day and being duly
sworn, according to law, upon oath, deposes and says:
1.
2.
10.
11.
12.
|, Dr. Alicia Brazeau, am Director of the Writing Center at the College of Wooster.
[hold a Master of Arts in English Studies and a Doctorate of Philosophy in Rhetoric and
Composition, both from the University of Louisville.
have reviewed, at the request of Defendant's Counsel in Wayne County Court of Common Pleas
case number 13-CV-0657, §1173.09 of the Codified Ordinances of the City of Wooster (hereinafter
the “Code section’). | have also reviewed a definition of the noun “use” found in the Plaintiff's
Complaint in that case and which | take to also be a part of the Codified Ordinances of the City of
Wooster.
It was requested that | render an opinion as to the meaning of certain words and phrases in the
Code section based upon my expertise and within the context of the language of that Code Section.
The first word that | reviewed was the word “certain” in the title of the Code Section, “Exemption for
certain City property."
In my opinion the word “certain” modifies the following phrase “City property” and operates to limit
the application of the “exemption” to some subset of City property and not all City property.
I next reviewed the word “used” in the body of the Code section itself, along with a proposed
definition of that word contained in the Plaintiff's Complaint.
The word “used” in the Code section is a verb in the passive participle form that is part of an
adjective phrase modifying “property owned or controlled by the City.”
The proposed definition in the Plaintiff's Complaint, however, is defining the word “use” in the noun
form.
The proposed definition of the noun “use” in the Plaintiff's Complaint cannot be used to properly
define the verb “used” as contained within the adjectival phrase in the Code section as they are
separate parts of speech and, thus, are defined and operate differently.
To use the proposed definition of the noun “use” in the Plaintiff's Complaint to define the verb “used”
in the Code section would render the Code section grammatically incorrect and nonsensical.
Finally, | was asked to review the word “currently” present in the Code section immediately before
the word “used.”
Pooler - 000056,13. The word “currently” means “at the present time” and places a condition on the phrased “used for
public services.”
14, The word “currently” is not a word with other tenses as it is a statement of a specific moment in
time, the present time of the writing or speaking of the word,
15. My opinion is that the only grammatically proper reading of the word "currently" as contained within
the Code section is to mean at the time the Code section was written or came into effect.
16. | have come to the above opinions based upon my own expertise and have relied upon a
timestamped copy of the Plaintiff's Complaint in Wayne County Court of Common Pleas case
number 13-CV-0657, along with the copy of the Code section attached thereto, and online
resources at the website of the Oxford English Dictionary.
A\fiant Dr. Alicia Brazeau
Before me, a Notary Public in and for said County and State, personally appeared Dr. Alicia Brazeau,
who subscribed and swore to the above statement.
IN TESTIMONY WHEREOF, | have hereunto set my hand and official seal, this 18"" day of June,
2014.
Jason M. Storck, Notary Public
Commission does not expire per O.R.C. §147.03
Pooler - 000057,IN THE COURT OF COMMON PLEAS
WAYNE COUNTY, OHIO
THE CITY OF WOOSTER, OHIO,
EX REL. RICHARD R. BENSON, JR., : CASENO. i5-CV: OS)
LAW DIRECTOR 3
538 North Market Street : JUDG R
Wooster, Ohio 44691 : JUDGE E SPITLE
Plaintiff, : COMPLAINT FOR DECLARATORY
: JUDGMENT AND/OR INJUNCTIVE
vy. : RELIEF
JAMES N. POOLER
1814 Burbank Road
Wooster, Ohio 44691
Defendant.
For its Complaint the Plaintiff states as follows:
THE PARTIES ts
un oO tet
1. The City of Wooster, Ohio (“Wooster”), is an Ohio municipal corporation, duly
organized and existing under the laws of the State of Ohio. Pursuant to Article XVIII, Section 7
of the Ohio Constitution, Wooster has enacted a Charter. Richard R. Benson, Jr. is the duly
appointed, qualified and acting Law Director of Wooster and brings the claim for injunctive
relief (Count ID) pursuant to the authority of Section 733.56 of the Ohio Revised Code, upon the
demand of a taxpayer of Wooster, which has been made pursuant to Section 733.59 of the Ohio
Revised Code as further discussed below.
2. Defendant James N. Pooler (“Defendant Pooler”) has been alleged to be a
taxpayer of Wooster, and is named as a party defendant pursuant to Section 733.581 of the Ohio
Revised Code.
{01506468 - 1} Pooler - 000058JURISDICTION/VENUE
3. This action is brought pursuant to the authority of Section 2721.01, et seq., and
Section 733.56 of the Ohio Revised Code. Pursuant to Article IV, Section 4(B) of the Ohio
Constitution, the Ohio Courts of Common Pleas have original jurisdiction over all justiciable
matters.
4, Venue is appropriate in Wayne County because Plaintiff City of Wooster and the
property at issue and described herein are located in Wayne County and Defendant Pooler
tesides in Wayne County.
FACTUAL ALLEGATIONS
5. Pursuant to Ordinance No. 2013-15 passed April 1, 2013, a copy of which is
attached hereto and incorporated by reference as Exhibit A, Wooster acquired an approximately
4.7 acre parcel of land from the Wooster City School District (the “Property”).
6. Ordinance No. 2013-15 expressly states that the Property was purchased “in order
to locate and construct an elevated water storage tank necessary to provide pressure and capacity
for the intermediate zone of the city.”
7. ‘Wooster has a need in the near future to construct a new water storage tank in the
intermediate pressure zone, Wooster’s largest zone of demand for water, and the Property
contains site conditions appropriate for such new water storage tank.
8. Since the time of the purchase, Wooster has indicated a desire to use the Property
for the construction and maintenance of a wireless telecommunications tower, the principal
purpose of which is to support City police, fire, emergency medical services and utilities needs.
Toward that end, Wooster City Council held a public informational meeting at the Property on
{01506468 - 1} 2 Pooler - 000059Tuesday, October 1, 2013 to discuss the City’s plans for the utilization of the Property, including
the proposed wireless telecommunications tower.
9. The Property is currently being used by Wooster for public services, including,
but not limited to, public meetings, general storage, special events such as overflow parking for a
ceremony conducted by a resident of the neighborhood, and a training facility for a 7" and gt
grade girls’ lacrosse club.
10. | On November 18, 2013 Wooster City Council adopted Ordinance No. 2013-36, a
copy of which is attached hereto and incorporated herein by reference-as Exhibit B, which
authorized the Director of Administration to enter into a contract for the construction and
maintenance of a wireless telecommunications tower and related facilities to be owned by the
City on the Property.
11. Chapter 1173 of the Codified Ordinances of the City of Wooster sets forth
regulations applicable to wireless telecommunication towers and related facilities located in
Wooster. Section 1173.09, a copy of which is attached hereto and incorporated herein by
reference as Exhibit C, reads as follows:
Regardless of the provisions of this Chapter, a Wireless
Telecommunication Facility may be permitted on any property owned or
controlled by the City and currently used for public services, and such
Facility shall be constructed, erected, maintained, extended and removed
under such conditions, standards and regulations as may be required by the
City Council.
12. Wooster interprets Section 1173.09 to mean that its installation of a wireless
telecommunications tower and related facilities at the Property is exempt from the requirements
of Chapter 1173 because: (a) it is being used for public services, and (b) it is Wooster’s intent to
use the Property, in part, for a wireless telecommunications tower and related facilities, the
principal purpose of which is to support City police, fire, emergency medical services and
{01506468 - 1} 3 Pooler - 000060‘utilities needs. While the phrase “currently used for public services” is not defined in the
Codified Ordinances, Section 1103.02(b)(221), a copy of which is attached hereto and
incorporated herein by reference as Exhibit D, the term “use” is defined by the Codified
Ordinances of the City of Wooster to include “The purpose for which land, a building or
structure is arranged, designed, intended, maintained or occupied...” (emphasis added). The
proposed wireless telecommunications tower and related facilities is an intended use of the
Property.
13. On or about November 18, 2013, Law Director Benson received a demand letter
from alleged taxpayer James Pooler, through his lawyer Jason M. Storck, to institute an
injunction action pursuant to R.C. 733.56 to enjoin the City of Wooster from taking action under
Ordinance No. 2013-36 as to the Layton School property. A copy of the letter is attached hereto
and incorporated herein by reference as Exhibit E. Defendant Pooler contends that the
exemption contained in Section 1173.09 does not apply to all City owned or controlled property,
but only property “currently used for public services.” Defendant Pooler asserts that the
Property is not “currently used for public services” and, therefore, the exemption in Section
1173.09 does not apply. The legal assertions contained in the demand letter are not correct
statements of law and are without merit.
14. Wooster filed the present declaratory judgment and injunction action in response
to Defendant Pooler’s demand letter.
COUNT I
DECLARATORY JUDGMENT
15. Plaintiff incorporates paragraphs 1-14 as if more fully re-written here.
{01506468 - 1} 4 Pooler - 00006116. A real and justiciable controversy exists between Plaintiff and Defendant with
respect to whether the Property is exempt from the provisions of Chapter 1173 of the Codified
Ordinances in regard to Wooster’s installation of a wireless telecommunications tower and
related facilities at the Property.
17. Pursuant to Ohio Revised Code 2721.01 et seq., Plaintiff seeks a declaration that
the language of Section 1173.09 of the Codified Ordinances exempts the Property from the
requirements of Chapter 1173 with respect to Wooster’s installation of a wireless
telecommunications tower and related facilities at the Property.
18. Pursuant to Ohio Revised Code 2721.01 et seq., Plaintiffs seek a declaration that
Wooster’s intended use of the Property for a wireless telecommunications tower and related
facilities at the Property constitutes a current use for public services for purposes of Section
1173.09 of the Codified Ordinances.
19. Pursuant to Ohio Revised Code 2721.01 et seq., Wooster seeks a declaration that
it is authorized and permitted to install and maintain a wireless telecommunications tower and
related facilities at the Property as an exempt property under Section 1173.09 of the Codified
Ordinances.
COUNT It
DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF
20. Plaintiff incorporates paragraphs 1-19 as if more fully re-written here.
21. In the event that there is a lack of legal authority to install a wireless
telecommunications tower and related facilities on the Property as an exempt property under
Section 1173.09 of the Codified Ordinances, Wooster requests an order from the Court pursuant
to Ohio Revised Code 2721.01 et seq., declaring that the Property is not exempt from the
{01506468 - 1} 5 Pooler - 000062requirements of Chapter 1173 of the Codified Ordinances and, pursuant to Section 733.56 of the
Ohio Revised Code, enjoining Wooster from installing a wireless telecommunications tower and
telated facilities on the Property pursuant to Section 1173.09 of the Codified Ordinances as an
exempt property.
RELIEF REQUESTED
WHEREFORE, Plaintiff prays for judgment as follows:
a. A Declaratory Judgment in favor of the Plaintiff as detailed in Paragraphs 16-20
of Count I; or
b. In the event that Declaratory Judgment pursuant to Count I is not granted in favor
of the Plaintiff, a declaration that the Property is not exempt from the requirements of Chapter
1173 of the Codified Ordinances and enjoining Plaintiff from installing and maintaining a
wireless telecommunications tower and related facilities at the Property as an exempt property
under Section 1173.09 of the Codified Ordinances.
C Any other relief this Court deems appropriate.
{01506468 - 1} 6 Pooler - 000063Respectfully 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
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: alane@walterhav.com
Facsimile: 216-575-0911
Attorneys for Plaintiff City of Wooster, Ohio
{01506468 - 1} 7 Pooler - 000064INSTRUCTIONS FOR SERVICE
To The Clerk:
~ Please serve a copy of the foregoing Complaint for Declaratory Judgment_and/or
Injunctive Relief by certified mail, return receipt requested, upon James N. Pooler, 1814
Burbank Road, Wooster, Ohio 44691, and make return thereof, as provided by law.
Richard R. Benson, Jr.,
Attorney for Plaintiff City of Wooster
Pooler - 000065EXHIBIT A
Pooler - 000066ORDINANCE NO. 2013-15
AN ORDINANCE AUTHORIZING THE PURCHASE OF REAL
ESTATE, AND DECLARING AN EMERGENCY
WHEREAS, this City Council, acting upon the recommendation of the City Engineer, has
determined that it is in the best interests of the municipal government to purchase real estate located
on Burbank Road, in between Kurtz and Elm Drives, in order to locate and construct an elevated
water storage tank necessary to provide pressure and capacity for the intermediate zone of the city;
and
WHEREAS, prompt action is necessary in order to respond to a purchase proposal.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF
WOOSTER, OHIO:
SECTION 1. That the Mayor is hereby authorized to purchase, in the name of the City of
Wooster, the following parcels of real estate, ‘and that he is authorized to execute any necessary
documents in connection therewith:
Four parcels comprising approximately 4.7 acres located on Burbank
Road, in between Kurtz and Elm Drives; owned by the Wooster City
Schools ($75,000.00);
SECTION 2. The amount of such purchase will not exceed $75,000.00, plus costs related or
incidental to closing; and such amount is hereby appropriated from the Water Fund.
SECTION 3. This Council finds and declares that all formal actions concerning and relating
to the adoption of this Ordinance occurred in an open meeting of this Council or its committees, in
compliance with law.
SECTION 4, This Ordinance is hereby declared to be an emergency measure necessary to
the immediate preservation of the public health, peace, safety and welfare of the City; or providing
for the usual daily operation of a municipal department or division and for the further reason that
prompt action is necessary to authorize the purchase in order to provide a future site for an elevated
water storage tank serving the intermediate zone of the city; wherefore, this Ordinance shall be in full
force and effect from and immediately after its passage and approval by the Mayor, provided it
receives the affirmative vote of at least three-fourths of the members of the Council; otherwise it
shall take effect and be in force from and after the earliest period allowed by law.
Istreading “I~|-13 2nd reading 3rd reading “(I-13
Passed: w 2013 Vote: gO
Opt 1.
Attest: ™ 1A. dura tbeen : HeabulGe beta
Clerk of Council . President of Council
Approved: _ A eit Au. , 2013 R Se Mic bccb tel Rts
Mayor
Introduced by: Craig Sanders
Pooler - 000067EXHIBIT BAmended at third reading on November 18, 2013
AMENDED
ORDINANCE NO, 2013-36
AN ORDINANCE AUTHORIZING THE DIRECTOR OF
ADMINISTRATION TO ENTER INTO A TECHNICAL
SERVICES CONTRACT WITH A QUALIFIED VENDOR FOR
THE CONSTRUCTION AND MAINTENANCE OF A
COMMUNICATIONS - TOWER AND RELATED
COMMUNICATIONS FACILITIES ON CITY-OWNED
PROPERTY; AND DECLARING AN EMERGENCY ~
WHEREAS, it is necessary for the safe and efficient operation of safety and other related
city services to provide a means of radio and/or cellular communications; and
WHEREAS, with the planned demolition of the Winter Street water storage tank, on
which the city has previously located antennas for such communications, it is necessary to
identify another site that is in close proximity thereto in order to maintain such radio and/or
cellular communications capabilities; and
WHEREAS, the former Layton School property possesses the attributes (clevation;
proximity to the existing Winter Street tower) necessary to support such necessary city services;
and
WHEREAS, based upon preliminary discussions with representatives of vendors
currently providing such services within the city, the director of administration believes that it
may be possible to negotiate an agreement with a tower contractor or cellular provider for the:
construction and maintenance of such communications facilities, thereby resulting in a
substantial savings to the city.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF
WOOSTER, OHIO:
SECTION 1. That the Director of Administration is hereby authorized to enter into a!
technical services contract with a qualified vendor for the construction and maintenance of a)
communications tower and related communications facilities on city-owned property, the
primary purpose of which will be to facilitate radio and/or cellular communications for the|
police, fire, maintenance and utilities divisions of the municipal government; provided that the
vendor may, in addition thereto, provide for facilities that will also serve cellular providers
within the city of Wooster.
SECTION 2. This Council finds and declares that all formal actions concerning and
relating to the adoption of this ordinance occurred in an open mecting of this Council. or its}
committees, in compliance with law.
SECTION 3. This Ordinance is hereby declared to be an emergency measure necessary
to the immediate preservation of the public health, peace, safety and welfare of the City, or
providing for the usual daily operation of a municipal department or division, and for the further|
Pooler - 000069reason that pronipt action is necessary to facilitate such agreements for the benefit of local
cellular services; wherefore, this Ordinance shall be in full force and effect from and
immediately after its passage and approval by the Mayor; provided it receives the affirmative
vote of at least three-fourths of the members of the Council; otherwise it shall take effect and be
in force from and after the earliest period allowed by law. .
Ist reading3~}%-|3 and reading 4~-1'3 3rd reading FH 13,
Passed: [Lender |e 2013 Vote: 1-9
.
\ .
Attest; does th A Ord bon .
lerk of Council President of Council .
Approved: Novernbaer 79,2013 Roe fbictteascalpan
Mayor
Introduced by: Mark Cavin
Pooler - 000070EXHIBIT C
Pooler - 000071Planning and Zoning Code
CHAPTER 1173
Regulations for Wireless Telecommunication Facilities
Section 1173.09 Exemption of Certain City Property
Regardless of the provisions of this Chapter, a Wireless Telecommunication Facility may be permitted
on any property owned or controlled by the City and currently used for public services, and such Facility
shall be constructed, erected, maintained, extended and removed under such conditions, standards and
regulations as may be required by the City Council.
Pooler - 000072EXHIBIT D
Pooler - 000073Planning and Zoning Code
Section 1103.02 Definitions
(221) Use. The purpose for which land, a building or structure is arranged, designed, intended,
maintained or occupied; or any occupation, activity or operation carried on in a building or structure or
on land,
A. Use, accessory. A use located on the same lot with the principal use of building or land, but
incidental and subordinate to and constructed subsequent to the principal use of the building or land.
B. Use, conditional. A use permitted in a district, other than a principal use permitted by right,
which is allowed only under certain conditions as set forth in Chapter 1147, Conditional Use Regulations,
and which requires conditional use approval by the Planning Commission, in accordance with the
standards and procedures set forth in Chapter 1107, Procedures for Zoning Certificates, Development
Review, and Conditional Use Approval.
C. Use, permitted. A use that is authorized by this Planning and Zoning Code as either a use
permitted by right, a conditional use or an accessory use.
D. Use permitted by right. A permitted use that is approved administratively when it complies
with the standards and requirements set forth in the Planning and Zoning Code, the approval of which
does not require a public hearing.
E. Use, principal. The primary or main use or activity of a building or lot.
F. Use, temporary. A use that is established for a fixed period of time with the intent to
discontinue such use upon the expiration of such time and does not involve the construction or
alteration of any permanent structure. (emphasis added)
Pooler - 000074EXHIBIT E
Pooler - 000075,STORCK LAW OFFICE LTD.
Attorney Richard R. Benson, Jr.
Director of Law :
City of Wooster
538 North Market St.
Wooster, Ohlo 44691
* 11/18/2013
Dear Director of Law Benson Jr.,
lam writing you this ‘etter on Lehaif of rny chest, James Pooler, a resident and tax payer in
the City of Wooster. It appears that the City Council of the City of Wooster intends to vote
this evening on Ordinance No. 2013-36.
To the point, the property where the proposed communications tower and related facilities
are to be located per the Ordinance (the “Layton School property") does not properly fall
within the exemption of "Certain City Property” from the requirements regarding these
facilities set forth in Chapter 1173 of the Codified Ordinances of the City of Wooster. The
exemption, contained in Chapter 1173.09, does not apply to all’ City owned or controlled
property, but only to property “currently used for public services.” As the Layton Schoo!
property is not currently used for public services the exemption does not apply to it and the
City of Wooster must, as it relates to that specific property, fully comply with the remainder of
Chapter 1173. The actions authorized by the Ordinance would clearly not comply.
Therefore, should the City Council pass the above Ordinance, and should the Mayor approve
it, my client requests that you, in your capacity as the Director of Law for the City of Wooster,
apply to a court of competent jurisdiction for an injunction to restrain the City of Wooster
from taking action under the above Ordinance as to the Layton School property, as any such
action would constitute an abuse of the corporate powers of the City of Wooster. My client
would also request that an injunction be sought to restrain the execution or performance of
any contract entered into under the above Ordinance as to the Layton School property, as
such contract would be in Contravention of the laws or ordinances governing the City of
Wooster.
You, as you sre doubtless.aware, are.directed.to. take such.actions by Ohio-Revised Code
§733.56. As | am sure you are also aware, should you fail to take action under that Section
once a written request has been made to you, a tax payer has the right, under Ohio Revised
Code §733.59, to institute a suit in his own name on behalf of the City of Wooster.
Please consider this fetter to be a written request from James Pooler for you to take the
above described actions. Please also indicate, at your earliest convenience, whether or not
you intend to take the above described actions. Should | or my client not hear from you, in
the affirmative, that you intend to take the above described actions by November 25", 2013,
we shall assume that you do not intend to take action on this request and shall proceed
accordingly.
Jason M. Storck
Pooler - 000076
Preview
eFiled in Wayne County Ohio on: 07/29/2014 Exhibit A Affidavit of Dr. Alicia Brazeau State of Ohio ) ) ss: County of Wayne ) Dr. Alicia Brazeau, known to me to be of lawful age, personally appeared before me this day and being duly sworn, according to law, upon oath, deposes and says: 1. 2. 10. 11. 12. |, Dr. Alicia Brazeau, am Director of the Writing Center at the College of Wooster. [hold a Master of Arts in English Studies and a Doctorate of Philosophy in Rhetoric and Composition, both from the University of Louisville. have reviewed, at the request of Defendant's Counsel in Wayne County Court of Common Pleas case number 13-CV-0657, §1173.09 of the Codified Ordinances of the City of Wooster (hereinafter the “Code section’). | have also reviewed a definition of the noun “use” found in the Plaintiff's Complaint in that case and which | take to also be a part of the Codified Ordinances of the City of Wooster. It was requested that | render an opinion as to the meaning of certain words and phrases in the Code section based upon my expertise and within the context of the language of that Code Section. The first word that | reviewed was the word “certain” in the title of the Code Section, “Exemption for certain City property." In my opinion the word “certain” modifies the following phrase “City property” and operates to limit the application of the “exemption” to some subset of City property and not all City property. I next reviewed the word “used” in the body of the Code section itself, along with a proposed definition of that word contained in the Plaintiff's Complaint. The word “used” in the Code section is a verb in the passive participle form that is part of an adjective phrase modifying “property owned or controlled by the City.” The proposed definition in the Plaintiff's Complaint, however, is defining the word “use” in the noun form. The proposed definition of the noun “use” in the Plaintiff's Complaint cannot be used to properly define the verb “used” as contained within the adjectival phrase in the Code section as they are separate parts of speech and, thus, are defined and operate differently. To use the proposed definition of the noun “use” in the Plaintiff's Complaint to define the verb “used” in the Code section would render the Code section grammatically incorrect and nonsensical. Finally, | was asked to review the word “currently” present in the Code section immediately before the word “used.” Pooler - 000056,13. The word “currently” means “at the present time” and places a condition on the phrased “used for public services.” 14, The word “currently” is not a word with other tenses as it is a statement of a specific moment in time, the present time of the writing or speaking of the word, 15. My opinion is that the only grammatically proper reading of the word "currently" as contained within the Code section is to mean at the time the Code section was written or came into effect. 16. | have come to the above opinions based upon my own expertise and have relied upon a timestamped copy of the Plaintiff's Complaint in Wayne County Court of Common Pleas case number 13-CV-0657, along with the copy of the Code section attached thereto, and online resources at the website of the Oxford English Dictionary. A\fiant Dr. Alicia Brazeau Before me, a Notary Public in and for said County and State, personally appeared Dr. Alicia Brazeau, who subscribed and swore to the above statement. IN TESTIMONY WHEREOF, | have hereunto set my hand and official seal, this 18"" day of June, 2014. Jason M. Storck, Notary Public Commission does not expire per O.R.C. §147.03 Pooler - 000057,IN THE COURT OF COMMON PLEAS WAYNE COUNTY, OHIO THE CITY OF WOOSTER, OHIO, EX REL. RICHARD R. BENSON, JR., : CASENO. i5-CV: OS) LAW DIRECTOR 3 538 North Market Street : JUDG R Wooster, Ohio 44691 : JUDGE E SPITLE Plaintiff, : COMPLAINT FOR DECLARATORY : JUDGMENT AND/OR INJUNCTIVE vy. : RELIEF JAMES N. POOLER 1814 Burbank Road Wooster, Ohio 44691 Defendant. For its Complaint the Plaintiff states as follows: THE PARTIES ts un oO tet 1. The City of Wooster, Ohio (“Wooster”), is an Ohio municipal corporation, duly organized and existing under the laws of the State of Ohio. Pursuant to Article XVIII, Section 7 of the Ohio Constitution, Wooster has enacted a Charter. Richard R. Benson, Jr. is the duly appointed, qualified and acting Law Director of Wooster and brings the claim for injunctive relief (Count ID) pursuant to the authority of Section 733.56 of the Ohio Revised Code, upon the demand of a taxpayer of Wooster, which has been made pursuant to Section 733.59 of the Ohio Revised Code as further discussed below. 2. Defendant James N. Pooler (“Defendant Pooler”) has been alleged to be a taxpayer of Wooster, and is named as a party defendant pursuant to Section 733.581 of the Ohio Revised Code. {01506468 - 1} Pooler - 000058JURISDICTION/VENUE 3. This action is brought pursuant to the authority of Section 2721.01, et seq., and Section 733.56 of the Ohio Revised Code. Pursuant to Article IV, Section 4(B) of the Ohio Constitution, the Ohio Courts of Common Pleas have original jurisdiction over all justiciable matters. 4, Venue is appropriate in Wayne County because Plaintiff City of Wooster and the property at issue and described herein are located in Wayne County and Defendant Pooler tesides in Wayne County. FACTUAL ALLEGATIONS 5. Pursuant to Ordinance No. 2013-15 passed April 1, 2013, a copy of which is attached hereto and incorporated by reference as Exhibit A, Wooster acquired an approximately 4.7 acre parcel of land from the Wooster City School District (the “Property”). 6. Ordinance No. 2013-15 expressly states that the Property was purchased “in order to locate and construct an elevated water storage tank necessary to provide pressure and capacity for the intermediate zone of the city.” 7. ‘Wooster has a need in the near future to construct a new water storage tank in the intermediate pressure zone, Wooster’s largest zone of demand for water, and the Property contains site conditions appropriate for such new water storage tank. 8. Since the time of the purchase, Wooster has indicated a desire to use the Property for the construction and maintenance of a wireless telecommunications tower, the principal purpose of which is to support City police, fire, emergency medical services and utilities needs. Toward that end, Wooster City Council held a public informational meeting at the Property on {01506468 - 1} 2 Pooler - 000059Tuesday, October 1, 2013 to discuss the City’s plans for the utilization of the Property, including the proposed wireless telecommunications tower. 9. The Property is currently being used by Wooster for public services, including, but not limited to, public meetings, general storage, special events such as overflow parking for a ceremony conducted by a resident of the neighborhood, and a training facility for a 7" and gt grade girls’ lacrosse club. 10. | On November 18, 2013 Wooster City Council adopted Ordinance No. 2013-36, a copy of which is attached hereto and incorporated herein by reference-as Exhibit B, which authorized the Director of Administration to enter into a contract for the construction and maintenance of a wireless telecommunications tower and related facilities to be owned by the City on the Property. 11. Chapter 1173 of the Codified Ordinances of the City of Wooster sets forth regulations applicable to wireless telecommunication towers and related facilities located in Wooster. Section 1173.09, a copy of which is attached hereto and incorporated herein by reference as Exhibit C, reads as follows: Regardless of the provisions of this Chapter, a Wireless Telecommunication Facility may be permitted on any property owned or controlled by the City and currently used for public services, and such Facility shall be constructed, erected, maintained, extended and removed under such conditions, standards and regulations as may be required by the City Council. 12. Wooster interprets Section 1173.09 to mean that its installation of a wireless telecommunications tower and related facilities at the Property is exempt from the requirements of Chapter 1173 because: (a) it is being used for public services, and (b) it is Wooster’s intent to use the Property, in part, for a wireless telecommunications tower and related facilities, the principal purpose of which is to support City police, fire, emergency medical services and {01506468 - 1} 3 Pooler - 000060‘utilities needs. While the phrase “currently used for public services” is not defined in the Codified Ordinances, Section 1103.02(b)(221), a copy of which is attached hereto and incorporated herein by reference as Exhibit D, the term “use” is defined by the Codified Ordinances of the City of Wooster to include “The purpose for which land, a building or structure is arranged, designed, intended, maintained or occupied...” (emphasis added). The proposed wireless telecommunications tower and related facilities is an intended use of the Property. 13. On or about November 18, 2013, Law Director Benson received a demand letter from alleged taxpayer James Pooler, through his lawyer Jason M. Storck, to institute an injunction action pursuant to R.C. 733.56 to enjoin the City of Wooster from taking action under Ordinance No. 2013-36 as to the Layton School property. A copy of the letter is attached hereto and incorporated herein by reference as Exhibit E. Defendant Pooler contends that the exemption contained in Section 1173.09 does not apply to all City owned or controlled property, but only property “currently used for public services.” Defendant Pooler asserts that the Property is not “currently used for public services” and, therefore, the exemption in Section 1173.09 does not apply. The legal assertions contained in the demand letter are not correct statements of law and are without merit. 14. Wooster filed the present declaratory judgment and injunction action in response to Defendant Pooler’s demand letter. COUNT I DECLARATORY JUDGMENT 15. Plaintiff incorporates paragraphs 1-14 as if more fully re-written here. {01506468 - 1} 4 Pooler - 00006116. A real and justiciable controversy exists between Plaintiff and Defendant with respect to whether the Property is exempt from the provisions of Chapter 1173 of the Codified Ordinances in regard to Wooster’s installation of a wireless telecommunications tower and related facilities at the Property. 17. Pursuant to Ohio Revised Code 2721.01 et seq., Plaintiff seeks a declaration that the language of Section 1173.09 of the Codified Ordinances exempts the Property from the requirements of Chapter 1173 with respect to Wooster’s installation of a wireless telecommunications tower and related facilities at the Property. 18. Pursuant to Ohio Revised Code 2721.01 et seq., Plaintiffs seek a declaration that Wooster’s intended use of the Property for a wireless telecommunications tower and related facilities at the Property constitutes a current use for public services for purposes of Section 1173.09 of the Codified Ordinances. 19. Pursuant to Ohio Revised Code 2721.01 et seq., Wooster seeks a declaration that it is authorized and permitted to install and maintain a wireless telecommunications tower and related facilities at the Property as an exempt property under Section 1173.09 of the Codified Ordinances. COUNT It DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF 20. Plaintiff incorporates paragraphs 1-19 as if more fully re-written here. 21. In the event that there is a lack of legal authority to install a wireless telecommunications tower and related facilities on the Property as an exempt property under Section 1173.09 of the Codified Ordinances, Wooster requests an order from the Court pursuant to Ohio Revised Code 2721.01 et seq., declaring that the Property is not exempt from the {01506468 - 1} 5 Pooler - 000062requirements of Chapter 1173 of the Codified Ordinances and, pursuant to Section 733.56 of the Ohio Revised Code, enjoining Wooster from installing a wireless telecommunications tower and telated facilities on the Property pursuant to Section 1173.09 of the Codified Ordinances as an exempt property. RELIEF REQUESTED WHEREFORE, Plaintiff prays for judgment as follows: a. A Declaratory Judgment in favor of the Plaintiff as detailed in Paragraphs 16-20 of Count I; or b. In the event that Declaratory Judgment pursuant to Count I is not granted in favor of the Plaintiff, a declaration that the Property is not exempt from the requirements of Chapter 1173 of the Codified Ordinances and enjoining Plaintiff from installing and maintaining a wireless telecommunications tower and related facilities at the Property as an exempt property under Section 1173.09 of the Codified Ordinances. C Any other relief this Court deems appropriate. {01506468 - 1} 6 Pooler - 000063Respectfully 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 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: alane@walterhav.com Facsimile: 216-575-0911 Attorneys for Plaintiff City of Wooster, Ohio {01506468 - 1} 7 Pooler - 000064INSTRUCTIONS FOR SERVICE To The Clerk: ~ Please serve a copy of the foregoing Complaint for Declaratory Judgment_and/or Injunctive Relief by certified mail, return receipt requested, upon James N. Pooler, 1814 Burbank Road, Wooster, Ohio 44691, and make return thereof, as provided by law. Richard R. Benson, Jr., Attorney for Plaintiff City of Wooster Pooler - 000065EXHIBIT A Pooler - 000066ORDINANCE NO. 2013-15 AN ORDINANCE AUTHORIZING THE PURCHASE OF REAL ESTATE, AND DECLARING AN EMERGENCY WHEREAS, this City Council, acting upon the recommendation of the City Engineer, has determined that it is in the best interests of the municipal government to purchase real estate located on Burbank Road, in between Kurtz and Elm Drives, in order to locate and construct an elevated water storage tank necessary to provide pressure and capacity for the intermediate zone of the city; and WHEREAS, prompt action is necessary in order to respond to a purchase proposal. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF WOOSTER, OHIO: SECTION 1. That the Mayor is hereby authorized to purchase, in the name of the City of Wooster, the following parcels of real estate, ‘and that he is authorized to execute any necessary documents in connection therewith: Four parcels comprising approximately 4.7 acres located on Burbank Road, in between Kurtz and Elm Drives; owned by the Wooster City Schools ($75,000.00); SECTION 2. The amount of such purchase will not exceed $75,000.00, plus costs related or incidental to closing; and such amount is hereby appropriated from the Water Fund. SECTION 3. This Council finds and declares that all formal actions concerning and relating to the adoption of this Ordinance occurred in an open meeting of this Council or its committees, in compliance with law. SECTION 4, This Ordinance is hereby declared to be an emergency measure necessary to the immediate preservation of the public health, peace, safety and welfare of the City; or providing for the usual daily operation of a municipal department or division and for the further reason that prompt action is necessary to authorize the purchase in order to provide a future site for an elevated water storage tank serving the intermediate zone of the city; wherefore, this Ordinance shall be in full force and effect from and immediately after its passage and approval by the Mayor, provided it receives the affirmative vote of at least three-fourths of the members of the Council; otherwise it shall take effect and be in force from and after the earliest period allowed by law. Istreading “I~|-13 2nd reading 3rd reading “(I-13 Passed: w 2013 Vote: gO Opt 1. Attest: ™ 1A. dura tbeen : HeabulGe beta Clerk of Council . President of Council Approved: _ A eit Au. , 2013 R Se Mic bccb tel Rts Mayor Introduced by: Craig Sanders Pooler - 000067EXHIBIT BAmended at third reading on November 18, 2013 AMENDED ORDINANCE NO, 2013-36 AN ORDINANCE AUTHORIZING THE DIRECTOR OF ADMINISTRATION TO ENTER INTO A TECHNICAL SERVICES CONTRACT WITH A QUALIFIED VENDOR FOR THE CONSTRUCTION AND MAINTENANCE OF A COMMUNICATIONS - TOWER AND RELATED COMMUNICATIONS FACILITIES ON CITY-OWNED PROPERTY; AND DECLARING AN EMERGENCY ~ WHEREAS, it is necessary for the safe and efficient operation of safety and other related city services to provide a means of radio and/or cellular communications; and WHEREAS, with the planned demolition of the Winter Street water storage tank, on which the city has previously located antennas for such communications, it is necessary to identify another site that is in close proximity thereto in order to maintain such radio and/or cellular communications capabilities; and WHEREAS, the former Layton School property possesses the attributes (clevation; proximity to the existing Winter Street tower) necessary to support such necessary city services; and WHEREAS, based upon preliminary discussions with representatives of vendors currently providing such services within the city, the director of administration believes that it may be possible to negotiate an agreement with a tower contractor or cellular provider for the: construction and maintenance of such communications facilities, thereby resulting in a substantial savings to the city. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF WOOSTER, OHIO: SECTION 1. That the Director of Administration is hereby authorized to enter into a! technical services contract with a qualified vendor for the construction and maintenance of a) communications tower and related communications facilities on city-owned property, the primary purpose of which will be to facilitate radio and/or cellular communications for the| police, fire, maintenance and utilities divisions of the municipal government; provided that the vendor may, in addition thereto, provide for facilities that will also serve cellular providers within the city of Wooster. SECTION 2. This Council finds and declares that all formal actions concerning and relating to the adoption of this ordinance occurred in an open mecting of this Council. or its} committees, in compliance with law. SECTION 3. This Ordinance is hereby declared to be an emergency measure necessary to the immediate preservation of the public health, peace, safety and welfare of the City, or providing for the usual daily operation of a municipal department or division, and for the further| Pooler - 000069reason that pronipt action is necessary to facilitate such agreements for the benefit of local cellular services; wherefore, this Ordinance shall be in full force and effect from and immediately after its passage and approval by the Mayor; provided it receives the affirmative vote of at least three-fourths of the members of the Council; otherwise it shall take effect and be in force from and after the earliest period allowed by law. . Ist reading3~}%-|3 and reading 4~-1'3 3rd reading FH 13, Passed: [Lender |e 2013 Vote: 1-9 . \ . Attest; does th A Ord bon . lerk of Council President of Council . Approved: Novernbaer 79,2013 Roe fbictteascalpan Mayor Introduced by: Mark Cavin Pooler - 000070EXHIBIT C Pooler - 000071Planning and Zoning Code CHAPTER 1173 Regulations for Wireless Telecommunication Facilities Section 1173.09 Exemption of Certain City Property Regardless of the provisions of this Chapter, a Wireless Telecommunication Facility may be permitted on any property owned or controlled by the City and currently used for public services, and such Facility shall be constructed, erected, maintained, extended and removed under such conditions, standards and regulations as may be required by the City Council. Pooler - 000072EXHIBIT D Pooler - 000073Planning and Zoning Code Section 1103.02 Definitions (221) Use. The purpose for which land, a building or structure is arranged, designed, intended, maintained or occupied; or any occupation, activity or operation carried on in a building or structure or on land, A. Use, accessory. A use located on the same lot with the principal use of building or land, but incidental and subordinate to and constructed subsequent to the principal use of the building or land. B. Use, conditional. A use permitted in a district, other than a principal use permitted by right, which is allowed only under certain conditions as set forth in Chapter 1147, Conditional Use Regulations, and which requires conditional use approval by the Planning Commission, in accordance with the standards and procedures set forth in Chapter 1107, Procedures for Zoning Certificates, Development Review, and Conditional Use Approval. C. Use, permitted. A use that is authorized by this Planning and Zoning Code as either a use permitted by right, a conditional use or an accessory use. D. Use permitted by right. A permitted use that is approved administratively when it complies with the standards and requirements set forth in the Planning and Zoning Code, the approval of which does not require a public hearing. E. Use, principal. The primary or main use or activity of a building or lot. F. Use, temporary. A use that is established for a fixed period of time with the intent to discontinue such use upon the expiration of such time and does not involve the construction or alteration of any permanent structure. (emphasis added) Pooler - 000074EXHIBIT E Pooler - 000075,STORCK LAW OFFICE LTD. Attorney Richard R. Benson, Jr. Director of Law : City of Wooster 538 North Market St. Wooster, Ohlo 44691 * 11/18/2013 Dear Director of Law Benson Jr., lam writing you this ‘etter on Lehaif of rny chest, James Pooler, a resident and tax payer in the City of Wooster. It appears that the City Council of the City of Wooster intends to vote this evening on Ordinance No. 2013-36. To the point, the property where the proposed communications tower and related facilities are to be located per the Ordinance (the “Layton School property") does not properly fall within the exemption of "Certain City Property” from the requirements regarding these facilities set forth in Chapter 1173 of the Codified Ordinances of the City of Wooster. The exemption, contained in Chapter 1173.09, does not apply to all’ City owned or controlled property, but only to property “currently used for public services.” As the Layton Schoo! property is not currently used for public services the exemption does not apply to it and the City of Wooster must, as it relates to that specific property, fully comply with the remainder of Chapter 1173. The actions authorized by the Ordinance would clearly not comply. Therefore, should the City Council pass the above Ordinance, and should the Mayor approve it, my client requests that you, in your capacity as the Director of Law for the City of Wooster, apply to a court of competent jurisdiction for an injunction to restrain the City of Wooster from taking action under the above Ordinance as to the Layton School property, as any such action would constitute an abuse of the corporate powers of the City of Wooster. My client would also request that an injunction be sought to restrain the execution or performance of any contract entered into under the above Ordinance as to the Layton School property, as such contract would be in Contravention of the laws or ordinances governing the City of Wooster. You, as you sre doubtless.aware, are.directed.to. take such.actions by Ohio-Revised Code §733.56. As | am sure you are also aware, should you fail to take action under that Section once a written request has been made to you, a tax payer has the right, under Ohio Revised Code §733.59, to institute a suit in his own name on behalf of the City of Wooster. Please consider this fetter to be a written request from James Pooler for you to take the above described actions. Please also indicate, at your earliest convenience, whether or not you intend to take the above described actions. Should | or my client not hear from you, in the affirmative, that you intend to take the above described actions by November 25", 2013, we shall assume that you do not intend to take action on this request and shall proceed accordingly. Jason M. Storck Pooler - 000076