Cities in the Central Ohio Mayors and Managers Association have joined dozens of others in filing a lawsuit against Senate Bill 331.
Several central Ohio municipalities are moving forward with legal action aiming to overturn Ohio Senate Bill 331, which was scheduled to take effect March 21.
Leaders of the Central Ohio Mayors and Managers Association held a press conference March 20 in Bexley to announce pending legal action against the bill they called a “blatant violation of the home-rule rights guaranteed municipalities in Ohio’s Constitution.”
The Ice Miller law firm in Columbus filed the complaint March 20 on behalf of 50 cities, including Akron and cities from COMMA and the Greater Dayton Mayors and Managers Association.
COMMA members are Bexley, Canal Winchester, Columbus, Delaware, Dublin, Gahanna, Grandview Heights, Grove City, Hilliard, New Albany, Pickerington, Powell, Reynoldsburg, Upper Arlington, Westerville, Whitehall and Worthington.
Senate Bill 331 was introduced in May 2016 and originally received support from Chillicothe-based Petland because it would overrule city-level laws attempting to specify where pet stores could purchase puppies. The bill, sponsored by Sen. Bob Peterson (R-Sabina), was written largely in response to an ordinance Grove City had adopted in March 2016 requiring retailers to acquire the pets they sell from animal shelters, rescues and humane societies.
But by the time the bill was signed into law in December by Gov. John Kasich, it had become an omnibus bill that included an amendment added during the Senate’s lame-duck session that gave utility companies full rein to install “small-cell wireless” nodes to such structures as street signs and traffic lights within cities’ public rights of way. When such structures are not present, the bill allows companies to install a tower, similar to a telephone pole, for infrastructure.
The small-cell wireless amendment, which was backed by AT&T, quickly drew responses from several central Ohio city leaders, including several that pledged support for legal action against the bill in recent months.
COMMA members have described SB 331 as “legislation COMMA believes violates the Ohio Constitution and threatens the principle of home rule.”
Ben Kessler, the Bexley mayor who serves as the group’s chairman, said at the press conference that city leaders are concerned by a perceived lack of recourse they would have as a result of the bill’s provisions, which applied only to cities and counties.
“This bill allows telecoms to be able to place a 50-foot tower in the front lawns of the residential areas of our cities,” Kessler said. “Cities need to be able to assist our citizens when the placement of small-cell facilities causes problems and disruptions.”
Kessler cited 50-foot utility poles and 28-cubic-foot boxes “the size of a refrigerator” that could be placed within the cities’ rights of way.
He said he and leaders from other cities involved are not exaggerating their concerns.
“This sounds like a scare tactic, but it’s fairly literal,” he said.
However, Matt Resch, an AT&T regional spokesman, previously told ThisWeek the bill’s language was not sinister as some have implied. Resch said the bill “streamlines” the process of installing the technology, and AT&T is committed to working with communities, rather than installing things with no regard for their opinions.
Messages left seeking comments from Peterson and Resch were not returned for this story. A Verizon official said the company had no comment.
Ice Miller filed the case against SB 331 in the Franklin County Court of Common Pleas. Any appeal of the court’s ruling would go before Ohio’s 10th District Court of Appeals, which covers Franklin County.
The legal challenge by central Ohio and Dayton cities and Akron is not the only action being taken around the state.
Ice Miller partner Greg Dunn, one of the members of COMMA’s legal team, said he is aware of “a number of lawsuits” being filed.
In Summit County, a group already had asked for a temporary restraining order that essentially would stop the bill from taking effect, Dunn said. That order would represent a “pause” in the process, he said.
At a Summit County Court of Common Pleas hearing March 20, Magistrate Kandi S. O’Connor ordered the plaintiffs and the state’s representatives to file briefs before a verbal hearing at 9 a.m. Thursday, March 30, according to the court’s website.
“We’re going to watch the TRO in Summit (County),” Dunn said. “The state will have 30 days to respond, so from our point of view, our case will kind of enter a dead period where there won’t be any activity for 30 days. After that’s over, we’ll probably start filing motions, mostly on home rule and on two-subjects-one-bill. I expect those motions to be filed within the next 30 to 90 days.”
State Rep. Mike Duffey (R-Worthington), who voted against SB 331, previously called the bill a violation of both home rule and the Ohio Constitution’s rule that bills should be limited to one subject.
Because of the multiple lawsuits, Dunn said, he’s concerned about the possibility of different courts handing down opposing rulings. In that situation, the case might have to go before the Ohio Supreme Court.
Dunn said he had hoped to coordinate efforts around the state, but “couldn’t come up with a solution.”
Kessler said a successful legal challenge would “clear this section of the bill and the state would have to go back to the drawing board.”
COMMA also pledged its support to small-cell technology in general, but not in the way the bill was written.
“We remain committed to the rapid deployment of that technology,” Dublin City Manager Dana McDaniel said. “But there is a unique balance that has to be struck.”
Kessler said he hopes a successful lawsuit will send a message to lawmakers about creating “Christmas-tree bills” in lame-duck sessions that include a variety of topics with little or no public comment. He said the group would like to be “a proactive member” in any discussions about revised language.
“It was rapid-fire,” he said. “It evolved over a week or two. It was very, very fast and there were no public hearings. It was sort of a poster child for what happens with a lame-duck, ‘Christmas-tree’ sort of bill.”