Berlin Township went to federal court regarding a telecommunications tower.
Gary Budzak | The Gazette/file
A cell phone tower being constructed in Berlin Township was allowed to be completed following a federal court ruling issued Aug. 18.
The case involved plaintiff TowerCo LLC and defendants Berlin Township and the Berlin Township Board of Trustees. Oral arguments were heard on March 14. Chief U.S. District Judge Algenon L. Marbley, of the Southern District of Ohio’s Eastern Division, wrote the 31-page opinion and order. Marbley granted the preliminary injunction against the defendants, “preventing the completion and deployment of the cell tower.”
“The telecommunications tower is being built on behalf of Verizon and is nearly complete, with only work on the utility extension and antenna left prior to deployment,” stated the first paragraph of the opinion.
The background of the case was that in 2019, Verizon Wireless “identified a gap in its wireless coverage of Delaware County.” The company and PBM Wireless found a site on land owned by the Olentangy Local School District on the northern edge of the site of the new Berlin Middle School. It is zoned as “farm residential.” The district and Verizon signed a lease agreement on Oct. 12, 2021.
TowerCo builds cell towers that Verizon leases, including this 195-foot Berlin Station tower. The company sent letters to nearby property owners, and later that month, the Berlin Township trustees heard concerns about the tower. The township said that TowerCo had to apply for a conditional use permit. However, TowerCo cited state law that “it was not required to comply with local zoning regulations,” asserting immunity from the process. Instead, it received a building permit from Delaware County and proceeded with construction in January 2022.
The tower was fully assembled at a cost of more than $375,000, needing “only the installation of electric and fiber wiring, completion of an asphalt driveway, and the addition of Verizon equipment and antennas” to be operational, the opinion said. However, the township filed suit against TowerCo, and the Delaware County Court of Common Pleas issued a temporary restraining order to prevent completion.
The court weighed four factors in the granting of a preliminary injunction: likelihood of success on the merits, irreparable injury, balance of the equities, and public interest.
Among the court’s conclusions, it was noted that the “defendants concede that the injunction will benefit customers and residents,” and that “TowerCo has established it will suffer irreparable injuries in the absence of a preliminary injunction.”
Assistant Editor Gary Budzak covers the eastern half of Delaware County and surrounding areas. He may be reached at [email protected].
