Preview
Filed on 02/05/2014 at 01:26 PM 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,
ANSWER AND COUNTERCLAIM
vs. 8 .e2
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Q
JAMES N. POOLER in om Zz
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Defendant. S = nos 2
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NOW COMES the Defendant, James N. Pooler, by and through counsel, and for hie2 ° 3
Answer and Counterclaim, states as follows:
ANSWER
1. To Paragraph 1 of the Complaint, Defendant Pooler admits that the City of Wooster
is an Ohio Municipal Corporation duly organized and existing under the laws of the
State of Ohio, that it has enacted a Charter, that Richard R. Benson ur. is the duly
appointed, qualified and acting Law Director of the City of Wooster and that he has
brought the claim for injunctive relief pursuant to to the authority of O.R.C §733.56
upon demand of a taxpayer of the City of Wooster made pursuant to O.R.C.
§733.59.
Page 1 of 12
gaildFiled on 02/05/2014 at 01:26 PM in Wayne County, Ohio
2. To Paragraph 2 of the Complaint, Defendant Pooler admits that he is a taxpayer of
the City of Wooster and properly named as a party to this action under O.R.C.
§733.581.
3. To Paragraphs 3 and 4 of the Complaint, Defendant Pooler admits the allegations
contained therein.
4. To Paragraphs 5 and 6 of the Complaint, Defendant Pooler admits that a copy of
Ordinance No. 2013-5 is attached to the Complaint as Exhibit A and that the
Ordinance itself is the best evidence of its content.
5. To Paragraph 7 of the Complaint, Defendant Pooler denies that the City of Wooster
has a need in the near future to construct a new water tower in the intermediate
pressure zone. Defendant Pooler bases this denial on a clear statement to this
effect by Director of Administration Joel Montgomery in emails dated October 11*,
2012. Director Montgomery indicates, after correction for a typo, that the existing
water tower servicing this zone does “not need” to be replaced and that he was
“not aware of any City employee or representative ever communicating otherwise.”
See Emails of Joel Montgomery of October 11*, 2013, attached hereto as Exhibit
1. Defendant Pooler denies for want of knowledge whether the property which is
the subject of the Ordinance made Exhibit A of the Plaintiff's Complaint (hereinafter
the “Property”) contains site conditions appropriate for a new water storage tank.
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6. To Paragraph 8 of the Complaint, Defendant Pooler denies that the City of Wooster
has indicated “since the time of purchase” its desire to use the Property for the
construction and maintenance of a wireless telecommunications tower, denies that
the principal purpose of said tower is as set forth in that paragraph, and admits to
the occurrence of the public informational meeting at the Property.
7. To Paragraph 9 of the Complaint, Defendant Pooler admits that two public
meetings have been held at the Property and denies the remainder of the
paragraph for want of knowledge.
8. To Paragraph 10 of the Complaint, Defendant Pooler admits that a copy of
Ordinance No. 2013-36 is attached to the Complaint as Exhibit B and that the
Ordinance itself is the best evidence of its content.
9. To Paragraph 11 of the Complaint, Defendant Pooler admits to the allegations
contained therein.
10.To Paragraph 12 of the Complaint, Defendant Pooler admits that this may, indeed,
be the City of Wooster’s interpretation of §1173.09 of the Codified Ordinances of
the City of Wooster and that the phrase “currently used for public services” is not
defined therein. Defendant Pooler denies that the Plaintiff's interpretation is legally
or grammatically correct, reasonable, or supported by the language of §1173.09.
The City of Wooster’s interpretation fails to apply standard rules of statutory
construction, ignores misdefines or renders words redundant, fails to properly apply
Page 3 of 12Filed on 02/05/2014 at 01:26 PM in Wayne County, Ohio
1
the classifications of the basic parts of speech to the word “use”, and would lead to
illogical and unworkable outcomes. Defendant Pooler admits that the City of
Wooster may intend to use the Property in the manner alleged, but denies that this
is relevant for the reasons set forth above and those set forth in the Counterclaim.
.To Paragraph 13 of the Complaint, Defendant Pooler admits to making the demand
to institute an action under O.R.C §733.56 in the manner set forth in the Complaint.
Defendant Pooler contends that the §1173.09 “Exemption of Certain City
Property” (emphasis added) does not apply the exemption to all property owned or
controlled by the City of Wooster as “Certain” modifies “Property” to constrain that
word to mean less than its totality. Applying the exemption to all City property
would also render the phrase “currently used for public services” meaningless,
contrary to the standard rules of statutory construction. Defendant Pooler’s
contention, as set forth more fully, below, is that the Property is neither “currently
used for public services” or, more importantly, that the Property was not “currently
used for public services” at the time of the enactment of the §1173.09 of the
Codified Ordinances. Defendant Pooler disagrees with the Plaintiffs opinion of the
merit of the legal assertions contained in the letter attached to Plaintiff's Complaint
as Exhibit E.
12.As to Paragraph 14 of the Complaint, Defendant Pooler assumes this assertion by
the Plaintiff is so.
Page 4 of 12Filed on 02/05/2014 at 01:26 PM in Wayne County, Ohio
13.As to Paragraph 15 of the Complaint, Defendant Pooler incorporates all the above
as if fully herein rewritten.
14.As to Paragraph 16 of the Complaint, Defendant Pooler agrees with the assertion
that there is a real and justiciable controversy between he and the City of Wooster
regarding the matters set forth in that paragraph.
15.As to Paragraph 17 of the Complaint, Defendant Pooler admits that the Plaintiff is
seeking a declaration as therein described and denies that the Plaintiff is entitled to
it.
16.As to Paragraph 18 of the Complaint, Defendant Pooler admits that the Plaintiff is
seeking a declaration as therein described and denies that the Plaintiff is entitled to
it.
17.As to Paragraph 19 of the Complaint, Defendant Pooler admits that the Plaintiff is
seeking a declaration as therein described and denies that the Plaintiff is entitled to
it.
18.As to Paragraph 20 of the Complaint, Defendant Pooler incorporates all the above
as if fully herein rewritten.
19.As to Paragraph 21 of the Complaint, Defendant Pooler is confident the Court will
find that there is a lack of legal authority to install a wireless communications tower
and related facilities on the Property as an exempt property under §1173.09 of the
Page 5 of 12Filed on 02/05/2014 at 01:26 PM in Wayne County, Ohio
Codified Ordinances of the City of Wooster and admits that the remedies sought by
the Plaintiff in response to such a finding are appropriate.
20.As to the Relief Request of the Plaintiff, Defendant Pooler denies that the Plaintiff is
entitled to the relief set forth in Paragraph “a” and strongly believes that the relief set
forth in Paragraph “b” should be awarded.
COUNTERCLAIM
Parties
21.The City of Wooster is an Ohio Municipal Corporation duly organized and existing
under the laws of the State of Ohio, it has enacted a Charter and that Richard R.
Benson ur. is the duly appointed, qualified and acting Law Director of the City of
Wooster.
22. James Pooler is a taxpayer and resident of the City of Wooster and has been made
a party defendant in this case pursuant to O.R.C. §733.581.
Jurisdiction and Venue
23. This Counterclaim is brought pursuant to O.R.C §2721.01, et seq., and O.R.C
§2727.01, et seq., which, along with the Constitution of the State of Ohio, vest
jurisdiction properly in this Court over the matters herein alleged.
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24, Venue is proper in this Court under Rule 3 of the Ohio Rules of Civil Procedure as
the activity which gave rise to the claim for relief occurred in Wayne County and the
property which is the subject of this action is located in Wayne County.
Factual Allegations
25.The City Council of the City of Wooster passed “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
wireless telecommunications facility and related facilities on City-owned property;
and declaring an emergency” on November 18", 2013. See Exhibit B of the
Plaintiff's Complaint.
26. As indicated in Paragraph 8 of the Plaintiffs Complaint, the City of Wooster intends,
under the authority of that Ordinance, to construct a wireless telecommunications
facility on the former Layton School property, located at 1859 Burbank Rd.,
Wooster, Ohio (hereinafter the “Property”).
27.As indicated in Paragraph 11 of the Plaintiff's Complaint, construction of wireless
telecommunications facilities within the City of Wooster is regulated under Chapter
1173 of the Codified Ordinances of the City of Wooster.
28. The final section of Chapter 1173 of the Codified Ordinances of the City of Wooster
dealing with wireless telecommunications facilities, §1173.09 and attached to
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Plaintiff's Complaint as Exhibit C, does, in fact, exempt “Certain City Property” from
the application of the sections preceding it.
29. Though set forth in Paragraph 11 of the Plaintiff's Complaint, is it worth restating
the language of §1173.09, which states,
“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.”
30. The Property does not meet the requirements for exemption as it was not “currently
used for public services,” nor even owned or controlled by the City of Wooster, at
the time of the enactment of §1173.09 on May 215, 2007.
31.While the Plaintiff is right, as noted in Paragraph 11 of the Complaint, that the
phrase “currently used for public services” is not defined therein, and leaving aside
the Plaintiff's assertions regarding the word “used”, the word “currently” is an
equally, if not more, important word in interpreting §1173.09. It is undefined in
§1103.2 of the the Codified Ordinances, and has the ordinary meaning of “at the
present time.” See http:/Awww.merriam-webster.com/thesaurus/currently.
32.Defendant Pooler interprets the term “currently used for public services” to mean
those properties used for public services at the time of the enactment of §1173.09,
as to read it otherwise would either read the word “currently” out of the ordinance
Page 8 of 12Filed on 02/05/2014 at 01:26 PM in Wayne County, Ohio
entirely, contrary to the standard rule of statutory construction requiring that
every single word be given meaning and effect, or would read it to mean
something other than “at the present time.”
33. Plaintiff's asserted definition of the word “use” supports Defendant Pooler’s
interpretation of §1173.09, as it is the only reading of §1173.09, given the breadth
of the Plaintiff's assertion, which would serve to actually limit the exemption to
“Certain”, as opposed to all, property owned and controlled by the City of Wooster.
As noted above, the title, language and structure of §1173.09 all evidence that it
intends some limitation on what property owned and controlled by the City of
Wooster is available for the exemption contained therein.
34. Defendant Pooler counterclaims for the public benefit of the enforcement of
Chapter 1173, the public nature and value of which the City of Wooster itself set
forth in Chapter 1173.01.1
Declar: n
35. The Defendant incorporates all the above as if fully herein rewritten.
1 “Specifically, these regulations are intended to achieve the following purposes: a) To protect property values; b) To
regulate a commercial use so as to provide for orderly and safe development within the city; c) To provide for and protect
the health, safety and general welfare of the residents of the city; d) To minimize any adverse effects on residential
properties, parks, open spaces, and in the non-intensive commercial zoning districts; e) To promote collocation of
wireless communications facilities in order to decrease the number of towers in the City; f) To maintain the aesthetic
appearance of the City; and, g) To maintain, where possible, the integrity of the Zoning Code.” Chapter 1173.01,
Codified Ordinances of the City of Wooster.
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36.As the Plaintiff states in Paragraph 16 of the Complaint, a real and justiciable
controversy exists between the parties regarding whether the Property meets the
requirements of §1173.09 of the Codified Ordinances of the City of Wooster for
exemption from the requirements of the other portions of Chapter 1173.
37.The Defendant seeks an Order of this Court, pursuant to O.R.C §2721.01, et seq.,
declaring that the Property does not meet the requirements for exemption set forth
in §1173.09 of the Codified Ordinances of the City of Wooster for the reasons set
forth above.
38.As part of the above Order, the Defendant seeks this Court, pursuant to O.R.C
§2727.01, et seq., to issue an injunction enjoining the City of Wooster from
constructing a wireless telecommunications tower and related facilities on the
Property under the exemption of §1173.09 of the Codified Ordinances of the City of
Wooster.
WHEREFORE the Defendant, on his Counterclaim, prays for relief as follows:
A. That this Court issue an Order declaring that the Property does not meet the
requirements for exemption set forth in §1173.09 of the Codified Ordinances of
the City of Wooster and enjoining the City of Wooster from constructing a
wireless telecommunications tower and related facilities on the Property under
Page 10 of 12Filed on 02/05/2014 at 01:26 PM in Wayne County, Ohio
the exemption of §1173.09 of the Codified Ordinances of the City of Wooster.
B. That this Court award the Defendant his costs in this action.
C. And that this Court take any other such action as it deems equitable and just.
Respectfully Submitted,
Jason M. Storck (0077071)
Storck Law Office Ltd.
PO. Box 1023
Wooster, OH 44691
(830) 263-0006 - Phone
(830) 263-0009 - Fax
jasonstorck@storcklawoffice.com
Attorney for Defendant
rtificate of i
| hereby certify that a true and accurate copy of the above, along with all exhibits or
attachments thereto, was served upon the following this 5!" day of February, by regular
U.S. Mail, at the below noted addresses:
Richard R. Benson Jr. Stephen L. Byron
Director of Law Walter & Haverfield, LLP
City of Wooster 1301 East 9" St., Suite 3500
538 North Market St. Cleveland, Ohio 44144
Wooster, Ohio 44691
Jason Mt. Storck (0077071)
1
Page 11 of 12Filed on 02/05/2014 at 01:26 PM in Wayne County, Ohio
ity of Wooster Mail - Hospital Memo https://mail.google.com/mail/u/0/?ui=2& ik=a389685 130&view=pt&sc...
Bob Breneman
Hospital Memo
2 messages
Joel Montgomery Fri, Oct 11, 2013 at 4:59 PM
To: Dick Benson , Bob Breneman
Dick and Bob,
After reading the memo from Bill Sheron to the Hospital Board members, | would like to clarify a couple of
statements.
There is a statement in the second bullet point indicating that the Hospital “only offered money for the land after
we were told by the City that they wanted/needed to move this tower." A similiar stement is made in the last
paragraph. The portions of those statements indicating that the City wanted/needed to move the tower is not
correct. The tower itself is old, but it is still functioning and serving its purpose. It will require between
$375,000 and $380,000 in repair and painting work in the near future if not replaced, but it does need to be
3
replaced,
wer
| am not aware of any City employee or representative ever communicating otherwise.
Joel Montgomery, PE
Director of Administration
City of Wooster
330-263-5244
Joel Montgomery Fri, Oct 11, 2013 at 5:09 PM
To: Dick Benson , Bob Breneman
| meant to say does not need to be replaced.
Joel
[Quoted text hidden]
Defendant’s Exhibit 1
Page 12 of 12
Preview
Filed on 02/05/2014 at 01:26 PM 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, ANSWER AND COUNTERCLAIM vs. 8 .e2 ° = =e Q JAMES N. POOLER in om Zz aa me 3 QO Defendant. S = nos 2 m = St 3 35 20 BAT ce m4 m fa an on =e NOW COMES the Defendant, James N. Pooler, by and through counsel, and for hie2 ° 3 Answer and Counterclaim, states as follows: ANSWER 1. To Paragraph 1 of the Complaint, Defendant Pooler admits that the City of Wooster is an Ohio Municipal Corporation duly organized and existing under the laws of the State of Ohio, that it has enacted a Charter, that Richard R. Benson ur. is the duly appointed, qualified and acting Law Director of the City of Wooster and that he has brought the claim for injunctive relief pursuant to to the authority of O.R.C §733.56 upon demand of a taxpayer of the City of Wooster made pursuant to O.R.C. §733.59. Page 1 of 12 gaildFiled on 02/05/2014 at 01:26 PM in Wayne County, Ohio 2. To Paragraph 2 of the Complaint, Defendant Pooler admits that he is a taxpayer of the City of Wooster and properly named as a party to this action under O.R.C. §733.581. 3. To Paragraphs 3 and 4 of the Complaint, Defendant Pooler admits the allegations contained therein. 4. To Paragraphs 5 and 6 of the Complaint, Defendant Pooler admits that a copy of Ordinance No. 2013-5 is attached to the Complaint as Exhibit A and that the Ordinance itself is the best evidence of its content. 5. To Paragraph 7 of the Complaint, Defendant Pooler denies that the City of Wooster has a need in the near future to construct a new water tower in the intermediate pressure zone. Defendant Pooler bases this denial on a clear statement to this effect by Director of Administration Joel Montgomery in emails dated October 11*, 2012. Director Montgomery indicates, after correction for a typo, that the existing water tower servicing this zone does “not need” to be replaced and that he was “not aware of any City employee or representative ever communicating otherwise.” See Emails of Joel Montgomery of October 11*, 2013, attached hereto as Exhibit 1. Defendant Pooler denies for want of knowledge whether the property which is the subject of the Ordinance made Exhibit A of the Plaintiff's Complaint (hereinafter the “Property”) contains site conditions appropriate for a new water storage tank. Page 2 of 12Filed on 02/05/2014 at 01:26 PM in Wayne County, Ohio 6. To Paragraph 8 of the Complaint, Defendant Pooler denies that the City of Wooster has indicated “since the time of purchase” its desire to use the Property for the construction and maintenance of a wireless telecommunications tower, denies that the principal purpose of said tower is as set forth in that paragraph, and admits to the occurrence of the public informational meeting at the Property. 7. To Paragraph 9 of the Complaint, Defendant Pooler admits that two public meetings have been held at the Property and denies the remainder of the paragraph for want of knowledge. 8. To Paragraph 10 of the Complaint, Defendant Pooler admits that a copy of Ordinance No. 2013-36 is attached to the Complaint as Exhibit B and that the Ordinance itself is the best evidence of its content. 9. To Paragraph 11 of the Complaint, Defendant Pooler admits to the allegations contained therein. 10.To Paragraph 12 of the Complaint, Defendant Pooler admits that this may, indeed, be the City of Wooster’s interpretation of §1173.09 of the Codified Ordinances of the City of Wooster and that the phrase “currently used for public services” is not defined therein. Defendant Pooler denies that the Plaintiff's interpretation is legally or grammatically correct, reasonable, or supported by the language of §1173.09. The City of Wooster’s interpretation fails to apply standard rules of statutory construction, ignores misdefines or renders words redundant, fails to properly apply Page 3 of 12Filed on 02/05/2014 at 01:26 PM in Wayne County, Ohio 1 the classifications of the basic parts of speech to the word “use”, and would lead to illogical and unworkable outcomes. Defendant Pooler admits that the City of Wooster may intend to use the Property in the manner alleged, but denies that this is relevant for the reasons set forth above and those set forth in the Counterclaim. .To Paragraph 13 of the Complaint, Defendant Pooler admits to making the demand to institute an action under O.R.C §733.56 in the manner set forth in the Complaint. Defendant Pooler contends that the §1173.09 “Exemption of Certain City Property” (emphasis added) does not apply the exemption to all property owned or controlled by the City of Wooster as “Certain” modifies “Property” to constrain that word to mean less than its totality. Applying the exemption to all City property would also render the phrase “currently used for public services” meaningless, contrary to the standard rules of statutory construction. Defendant Pooler’s contention, as set forth more fully, below, is that the Property is neither “currently used for public services” or, more importantly, that the Property was not “currently used for public services” at the time of the enactment of the §1173.09 of the Codified Ordinances. Defendant Pooler disagrees with the Plaintiffs opinion of the merit of the legal assertions contained in the letter attached to Plaintiff's Complaint as Exhibit E. 12.As to Paragraph 14 of the Complaint, Defendant Pooler assumes this assertion by the Plaintiff is so. Page 4 of 12Filed on 02/05/2014 at 01:26 PM in Wayne County, Ohio 13.As to Paragraph 15 of the Complaint, Defendant Pooler incorporates all the above as if fully herein rewritten. 14.As to Paragraph 16 of the Complaint, Defendant Pooler agrees with the assertion that there is a real and justiciable controversy between he and the City of Wooster regarding the matters set forth in that paragraph. 15.As to Paragraph 17 of the Complaint, Defendant Pooler admits that the Plaintiff is seeking a declaration as therein described and denies that the Plaintiff is entitled to it. 16.As to Paragraph 18 of the Complaint, Defendant Pooler admits that the Plaintiff is seeking a declaration as therein described and denies that the Plaintiff is entitled to it. 17.As to Paragraph 19 of the Complaint, Defendant Pooler admits that the Plaintiff is seeking a declaration as therein described and denies that the Plaintiff is entitled to it. 18.As to Paragraph 20 of the Complaint, Defendant Pooler incorporates all the above as if fully herein rewritten. 19.As to Paragraph 21 of the Complaint, Defendant Pooler is confident the Court will find that there is a lack of legal authority to install a wireless communications tower and related facilities on the Property as an exempt property under §1173.09 of the Page 5 of 12Filed on 02/05/2014 at 01:26 PM in Wayne County, Ohio Codified Ordinances of the City of Wooster and admits that the remedies sought by the Plaintiff in response to such a finding are appropriate. 20.As to the Relief Request of the Plaintiff, Defendant Pooler denies that the Plaintiff is entitled to the relief set forth in Paragraph “a” and strongly believes that the relief set forth in Paragraph “b” should be awarded. COUNTERCLAIM Parties 21.The City of Wooster is an Ohio Municipal Corporation duly organized and existing under the laws of the State of Ohio, it has enacted a Charter and that Richard R. Benson ur. is the duly appointed, qualified and acting Law Director of the City of Wooster. 22. James Pooler is a taxpayer and resident of the City of Wooster and has been made a party defendant in this case pursuant to O.R.C. §733.581. Jurisdiction and Venue 23. This Counterclaim is brought pursuant to O.R.C §2721.01, et seq., and O.R.C §2727.01, et seq., which, along with the Constitution of the State of Ohio, vest jurisdiction properly in this Court over the matters herein alleged. Page 6 of 12Filed on 02/05/2014 at 01:26 PM in Wayne County, Ohio 24, Venue is proper in this Court under Rule 3 of the Ohio Rules of Civil Procedure as the activity which gave rise to the claim for relief occurred in Wayne County and the property which is the subject of this action is located in Wayne County. Factual Allegations 25.The City Council of the City of Wooster passed “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 wireless telecommunications facility and related facilities on City-owned property; and declaring an emergency” on November 18", 2013. See Exhibit B of the Plaintiff's Complaint. 26. As indicated in Paragraph 8 of the Plaintiffs Complaint, the City of Wooster intends, under the authority of that Ordinance, to construct a wireless telecommunications facility on the former Layton School property, located at 1859 Burbank Rd., Wooster, Ohio (hereinafter the “Property”). 27.As indicated in Paragraph 11 of the Plaintiff's Complaint, construction of wireless telecommunications facilities within the City of Wooster is regulated under Chapter 1173 of the Codified Ordinances of the City of Wooster. 28. The final section of Chapter 1173 of the Codified Ordinances of the City of Wooster dealing with wireless telecommunications facilities, §1173.09 and attached to Page 7 of 12Filed on 02/05/2014 at 01:26 PM in Wayne County, Ohio Plaintiff's Complaint as Exhibit C, does, in fact, exempt “Certain City Property” from the application of the sections preceding it. 29. Though set forth in Paragraph 11 of the Plaintiff's Complaint, is it worth restating the language of §1173.09, which states, “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.” 30. The Property does not meet the requirements for exemption as it was not “currently used for public services,” nor even owned or controlled by the City of Wooster, at the time of the enactment of §1173.09 on May 215, 2007. 31.While the Plaintiff is right, as noted in Paragraph 11 of the Complaint, that the phrase “currently used for public services” is not defined therein, and leaving aside the Plaintiff's assertions regarding the word “used”, the word “currently” is an equally, if not more, important word in interpreting §1173.09. It is undefined in §1103.2 of the the Codified Ordinances, and has the ordinary meaning of “at the present time.” See http:/Awww.merriam-webster.com/thesaurus/currently. 32.Defendant Pooler interprets the term “currently used for public services” to mean those properties used for public services at the time of the enactment of §1173.09, as to read it otherwise would either read the word “currently” out of the ordinance Page 8 of 12Filed on 02/05/2014 at 01:26 PM in Wayne County, Ohio entirely, contrary to the standard rule of statutory construction requiring that every single word be given meaning and effect, or would read it to mean something other than “at the present time.” 33. Plaintiff's asserted definition of the word “use” supports Defendant Pooler’s interpretation of §1173.09, as it is the only reading of §1173.09, given the breadth of the Plaintiff's assertion, which would serve to actually limit the exemption to “Certain”, as opposed to all, property owned and controlled by the City of Wooster. As noted above, the title, language and structure of §1173.09 all evidence that it intends some limitation on what property owned and controlled by the City of Wooster is available for the exemption contained therein. 34. Defendant Pooler counterclaims for the public benefit of the enforcement of Chapter 1173, the public nature and value of which the City of Wooster itself set forth in Chapter 1173.01.1 Declar: n 35. The Defendant incorporates all the above as if fully herein rewritten. 1 “Specifically, these regulations are intended to achieve the following purposes: a) To protect property values; b) To regulate a commercial use so as to provide for orderly and safe development within the city; c) To provide for and protect the health, safety and general welfare of the residents of the city; d) To minimize any adverse effects on residential properties, parks, open spaces, and in the non-intensive commercial zoning districts; e) To promote collocation of wireless communications facilities in order to decrease the number of towers in the City; f) To maintain the aesthetic appearance of the City; and, g) To maintain, where possible, the integrity of the Zoning Code.” Chapter 1173.01, Codified Ordinances of the City of Wooster. Page 9 of 12Filed on 02/05/2014 at 01:26 PM in Wayne County, Ohio 36.As the Plaintiff states in Paragraph 16 of the Complaint, a real and justiciable controversy exists between the parties regarding whether the Property meets the requirements of §1173.09 of the Codified Ordinances of the City of Wooster for exemption from the requirements of the other portions of Chapter 1173. 37.The Defendant seeks an Order of this Court, pursuant to O.R.C §2721.01, et seq., declaring that the Property does not meet the requirements for exemption set forth in §1173.09 of the Codified Ordinances of the City of Wooster for the reasons set forth above. 38.As part of the above Order, the Defendant seeks this Court, pursuant to O.R.C §2727.01, et seq., to issue an injunction enjoining the City of Wooster from constructing a wireless telecommunications tower and related facilities on the Property under the exemption of §1173.09 of the Codified Ordinances of the City of Wooster. WHEREFORE the Defendant, on his Counterclaim, prays for relief as follows: A. That this Court issue an Order declaring that the Property does not meet the requirements for exemption set forth in §1173.09 of the Codified Ordinances of the City of Wooster and enjoining the City of Wooster from constructing a wireless telecommunications tower and related facilities on the Property under Page 10 of 12Filed on 02/05/2014 at 01:26 PM in Wayne County, Ohio the exemption of §1173.09 of the Codified Ordinances of the City of Wooster. B. That this Court award the Defendant his costs in this action. C. And that this Court take any other such action as it deems equitable and just. Respectfully Submitted, Jason M. Storck (0077071) Storck Law Office Ltd. PO. Box 1023 Wooster, OH 44691 (830) 263-0006 - Phone (830) 263-0009 - Fax jasonstorck@storcklawoffice.com Attorney for Defendant rtificate of i | hereby certify that a true and accurate copy of the above, along with all exhibits or attachments thereto, was served upon the following this 5!" day of February, by regular U.S. Mail, at the below noted addresses: Richard R. Benson Jr. Stephen L. Byron Director of Law Walter & Haverfield, LLP City of Wooster 1301 East 9" St., Suite 3500 538 North Market St. Cleveland, Ohio 44144 Wooster, Ohio 44691 Jason Mt. Storck (0077071) 1 Page 11 of 12Filed on 02/05/2014 at 01:26 PM in Wayne County, Ohio ity of Wooster Mail - Hospital Memo https://mail.google.com/mail/u/0/?ui=2& ik=a389685 130&view=pt&sc... Bob Breneman Hospital Memo 2 messages Joel Montgomery Fri, Oct 11, 2013 at 4:59 PM To: Dick Benson , Bob Breneman Dick and Bob, After reading the memo from Bill Sheron to the Hospital Board members, | would like to clarify a couple of statements. There is a statement in the second bullet point indicating that the Hospital “only offered money for the land after we were told by the City that they wanted/needed to move this tower." A similiar stement is made in the last paragraph. The portions of those statements indicating that the City wanted/needed to move the tower is not correct. The tower itself is old, but it is still functioning and serving its purpose. It will require between $375,000 and $380,000 in repair and painting work in the near future if not replaced, but it does need to be 3 replaced, wer | am not aware of any City employee or representative ever communicating otherwise. Joel Montgomery, PE Director of Administration City of Wooster 330-263-5244 Joel Montgomery Fri, Oct 11, 2013 at 5:09 PM To: Dick Benson , Bob Breneman | meant to say does not need to be replaced. Joel [Quoted text hidden] Defendant’s Exhibit 1 Page 12 of 12