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Ohio Antenna Law Challenge May Be Over

05/28/2014

In a surprise move, the Ohio Sixth District Court of Appeals has dismissed an appeal from the Village of Swanton, Ohio, in an Amateur Radio antenna zoning case. The ARRL had announced plans to file a “friend of the court” or amicus curiae brief on behalf of ARRL Life Member Gary Wodtke, WW8N, who has been trying since 2009 to erect a 60 foot antenna support structure on his 0.2 acre residential lot. It now appears that he will be able to do so. The Village of Swanton, Ohio, has established a fixed antenna height of 20 feet above the residential roofline, and it turned down Wodtke’s antenna variance application for the taller structure. On appeal, Wodtke in January won a final judgment in his favor in the Fulton County Common Pleas Court. The court ruled that federal and state law preempted Swanton’s antenna ordinance.

The Appeals Court ruling on April 3 was based on the fact that the trial court decision the Village could have appealed was issued on August 20, 2013, while the judgment that the Village attempted to appeal was issued on January 21, 2014. Since the August 20 trial court decision was a final order, the Village was required to file its appeal within 30 days, and it never did so, thus losing its right to appeal. The ruling means that the August 20 trial court decision stands, and Wodtke wins the right to erect the tower for which he applied.

The award of attorney fees appears to be at the center of confusion on both sides of the case. The trial court’s decision last August 20 decision awarded attorney fees to Wodtke. Because attorney fees had not yet been determined, both sides considered the decision as not yet final. But, while Wodtke’s attorney had sought attorney fees in his original complaint, the amended complaint that the trial court ruled upon last summer included no such request.

The Court of Appeals said that, ordinarily, when attorney fees are requested in a complaint but not yet ruled upon, the order disposing of the rest of the case is not final and appealable, but the court pointed out that a claim for attorney fees was not pending once court entered its August 20 judgment. “Therefore, the order was final and appealable on August 20, 2013,” the court said.

The Court of Appeals also noted that, although both sides had filed for reconsideration of the August 20 decision, neither of those motions nor the trial court’s January 21 decision had the effect of extending the appeal deadline. In the words of the Court of Appeals, “It is well settled that a motion to reconsider does not stay the time to file a notice of appeal.”

The Court of Appeals’ April 3 decision could yet be reviewed by the Ohio Supreme Court, but only if the Village had filed a timely Memorandum in Support of Jurisdiction to convince the high court to hear the appeal.

Ohio Section State Government Liaison Nick Pittner, K8NAP, believes the Appeals Court decision in Wodtke v Village of Swanton could set legal precedent for similar antenna-related cases down the road. An attorney, Pittner was instrumental in getting Ohio’s PRB-1 law enacted. “The Ohio Municipal League seems intent on challenging [the PRB-1 law] in court, and will likely try to do so in some other case if the challenge is not available in this one,” Pittner said. “We’re keeping the research files open.” — Delara News, Delaware (Ohio) Amateur Radio Association

 



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