00-000999 American Infoage, Llc vs. City Of Clearwater And Antonios Markopoulos Status: Closed DOAH Final Order on Wednesday, August 30, 2000.

Summary: Board decision to deny application for permit to build new tower was not supported by the evidence, departed from the essential requirements of law, and should be reversed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AMERICAN INFOAGE, LLC, )

)

Petitioner, )

)

vs. ) Case No. 00-0999

)

CITY OF CLEARWATER, )

)

Respondent. )

)

FINAL ORDER

Administrative Law Judge ("ALJ") Daniel Manry conducte d the

administrative hearing in this case on June 29, 2000, in

Clearwater, Florida.

APPEARANCES

For Petitioner: Darryl R. Richards, Esquire

Johnson, Blakely, Pope, Bokor,

Ruppel and Burns, P.A.

Post Office Box 1100

Tampa, Florida 33601

For Respondent: Leslie K. Dougall-Sides, Esquire

Assistant City Attorney

Post Office Drawer 4748

Clearwater, Florida 33758

STATEMENT OF THE ISSUE

The issue in this case is whether the decision of the City

of Clearwater Community Development Board (the "Board") to deny

the application of Petitioner for flexible development approval

to erect a telecommunications tower should be upheld pursuant to

the City of Clearwater Land Development Code (the "Code"). (All

section references are to the Code adopted on January 21, 1999,

unless otherwise stated).

PRELIMINARY STATEMENT

On January 25, 2000, the Board voted to deny Petitioner's

application to erect a telecommunications tower and entered a

written order on February 29, 2000. On February 8, 2000,

Petitioner timely filed a Notice of Appeal. On March 1, 2000,

Respondent referred the appeal to the Division of Administrative

Hearings ("DOAH") to conduct an administrative hearing.

At the hearing, the parties agreed to the admission of Joint

Exhibit One. Joint Exhibit One includes the audio tapes,

minutes, exhibits, and transcripts from the proceeding before the

Board.

Petitioner pres ented the testimony of two witnesses,

including one by deposition, and submitted 27 exhibits for

admission in evidence. Respondent presented the testimony of two

witnesses and submitted three exhibits for admission in evidence.

The identity of the witnes ses and exhibits, and any

attendant rulings, are set forth in the Transcript of the hearing

filed on July 14, 2000. Petitioner timely filed its Proposed

Final Order ("PFO") on July 25, 2000. Respondent timely filed

its PFO on July 24, 2000. Respondent's objection to the

admissibility of the deposition testimony of Mr. Joseph Feraca is

sustained for the reasons stated in Respondent's written

objection.

FINDINGS OF FACT

1. Petitioner is a Florida corporation engaged in the

business of building telecommunication towers for co-location of

antennae to send and receive cellular telephone signals. Proper

location of telecommunication towers is essential to efficient

and effective cellular telephone communications. There must be

an available tower to pick up the signal as a user moves from a

distant tower to the available tower. Without an available

tower, the user would lose signal.

2. It is undisputed that three telephone carriers,

identified in the record as GTE, Nextel, and PrimeCo, need an

available tower in the vicinity of Clearwater High School (the

"high school"). Another telephone carrier, identified in the

record as AT&T, shares an existing tower at the high school with

the Pinellas County School Board (the "school board").

3. No reasonable u se can be made by GTE, Nextel, or PrimeCo

of the existing tower at the high school without modification to

the tower. The existing tower is not adequate in height and

structural capacity to meet the requirements of GTE, Nextel, and

PrimeCo.

4. The scho ol board and AT&T repeatedly rejected efforts by

GTE, Nextel, and Petitioner to discuss the possibilities of

modification of the existing tower to accommodate co-location.

In 1996, AT&T advised GTE that the school board was not

interested in co-location activity. The school board repeated

that position in a separate meeting with GTE.

5. GTE and PrimeCo searched for over two years for an

alternative structure, tower, or location that would provide

reasonable use for their technical requirements. In 1997, GTE

requested a permit from Respondent to build a new tower

approximately two blocks from the existing tower at the high

school. Respondent contacted the superintendent of the school

board to encourage co-location. Respondent did not issue a

permit to GTE for a new tower.

6. Early in 1998, GTE and PrimeCo approached Petitioner to

locate a site for construction of a new tower in the vicinity of

the high school. Over the next eight months, Petitioner searched

for a suitable site for building a new tower. Petitioner found a

site surrounded by commercial property and bordered by mature

trees which are 20 to 40 feet tall. On October 13, 1998,

Petitioner optioned the portion of the property on which

Petitioner intended to build the tower, and Petitioner now owns

the property.

7. On May 17, 1999, Petitioner filed its application for

site plan approval. The application proposed the construction of

a 160-foot wireless communications tower for co-location by GTE,

Nextel, and PrimeCo (the "proposed tower"). Petitioner sent a

notice of the proposed tower to Mr. Kevin Becker at AT&T.

8. The staff for the Board conducted a technical review of

the application. The staff recommended approval of the

application subject to certain conditions. Petitioner complied

with each of those conditions.

9. The staff also recommended approval by the Development

Review Committee (the "DRC"). The DRC must review each

application before it is submitted to the Board. The staff

report to the DRC stated that the existing tower at the high

school was the only other tower in the area and was in poor

condition. The report found that the tower cannot structurally

hold more weight and cannot accept more antennae.

10. Before the Board reviewed the application, Nextel again

contacted Mr. Becker at AT&T to discuss modification of the

existing tower for co-location of Nextel's antenna. Mr. Becker

responded for AT&T with a terse e-mail that stated, "This is the

THIRD TIME I have told Nextel that . . . tower is not available

for anyone."

11. The Board conducted five hearings to review the

application by Petitioner. The hearings spanned six months. The

Board conducted the first hearing on July 20, 1999, a second

hearing on October 5, 1999, a third hearing on November 16, 1999,

a fourth hearing on December 14, 1999, and the last hearing on

January 25, 2000.

12. The Board did not follow the staff recommendation at

the first hearing. After hearing testimony and receiving other

evidence, the Board continued the first hearing, in relevant

part, to "allow the City to do whatever it may want to do in

terms of addressing that issue." The Board directed Petitioner

to contact the school board concerning the condition of the tower

and directed the City Planning Director to also contact the

school board.

13. After the July hearing, Petitioner contacted the school

board concerning the existing tower. Neither the school board

nor AT&T had any plans for modification of the existing tower at

the high school. The City Planner conducted an independent

inquiry and determined that there is not much of a desire on the

part of the school board or AT&T to "create other opportunities

at this time."

14. Petitioner and the City Planner reported their findings

to the Board at the second hearing conducted on October 5, 1999.

No one from the school board or AT&T appeared at the hearing.

15. Petitioner presented an engineering study concerning

the inadequacy of the existing tower at the high school. One

Board member asked whether a new tower could be constructed at

the high school to replace the existing tower. Petitioner and

the Board's attorney stated that the Code encourages the use of

existing towers rather than new towers. The Board continued the

hearing over objection from Petitioner so that City

representatives could contact school board representatives at a

higher level and also allow consideration of a new tower at the

high school.

16. After the October hearing, the City Manager contacted

the superintendent of schools to discuss the tower at the high

school. On November 10, 1999, the superintendent stated that he

would meet with city representatives only if AT&T representatives

were also present. The superintendent eventually met with the

City Manager without the presence of an AT&T representative. The

superintendent indicated a willingness to consider modification

of the existing tower but no agreement was reached due to the

absence of AT&T participation. Another Board member prevailed on

the superintendent four times to make a decision without success.

17. The Board conducted the third hearing on November 16,

1999. Representatives from GTE, Nextel, and PrimeCo testified at

the hearing. Modification to the existing tower at the high

school would accommodate one of the three companies but not the

other two. The proposed tower is the only tower that would

accommodate all three companies. The proposed tower is necessary

to provide effective and efficient service to the customers of

GTE, Nextel, and PrimeCo. GTE has been at a competitive

disadvantage since 1996. The Board voted to approve Petitioner's

application.

18. The Board conducted a fourth hearing on December 14,

1999. At that hearing, the Board voted to reconsider

Petitioner's application on the ground that the Board had

received timely requests for reconsideration from an interested

party. The Board determined that Petitioner had misrepresented

the position of the school board and AT&T concerning their

willingness to modify the existing tower at the high school.

19. The catalyst for the Board's reconsideration was a

letter from Mr. Becker, dated September 16, 1999, stating that

AT&T was willing to consider co-location. Mr. Becker sent a copy

of the letter to the Board the day after the Board approved

Petitioner's application. The letter stated that AT&T was very

interested in considering co-location with other carriers but

that the existing tower at the high school was inadequate for the

purpose. The letter represented that AT&T would be willing to

discuss replacement of the tower with other carriers. Petitioner

had never seen the letter prior to the Board's approval and had

no knowledge of the change in position by AT&T.

20. The Board conducted a final hearing of Petitioner's

application on January 25, 2000. The Board considered the letter

from Mr. Becker and a letter from legal counsel for AT&T. Both

letters stated that the existing tower does not have the

structural capacity to add additional wireless antennae. A staff

member for the Board again concluded that the term "existing"

meant a tower in existence at that time. Respondent's expert

confirmed that the existing tower, without reconstruction, was

not a reasonable alternative to the tower proposed by Petitioner.

Mr. Becker testified that AT&T was not proposing to modify the

existing tower to accommodate the proposed antennae needed by

GTE, Nextel, and PrimeCo and that the existing tower was beyond

reinforcement to accommodate additional loading.

21. The Board denied Petitioner's application. The Board

found that the existing tower "can be modified to accommodate

carriers and thus reasonable use may be made of the existing

tower."

22. The evidence does not support a finding that the

existing tower can be modified to accommodate GTE, Nextel, and

PrimeCo. To do so, the existing tower would need to be replaced

rather than modified. Reasonable use of the existing tower

cannot be accomplished by modification.

23. Replacement of the existing tower with a new tower

would not provide reasonable use of the "existing" tower. As a

threshold matter, an interference study would be necessary before

a determination could be made that the replacement tower would

accommodate all of the carriers. PrimeCo cannot commit to the

replacement tower until the interference study is completed. In

addition, there are other problems.

24. AT&T proposes to place seven carriers on the

replacement tower. That configuration would not provide adequate

coverage to each carrier. A second tower would be required in

the "short term."

25. AT&T's proposed location of each antenna on the

replacement tower would reduce the amount of coverage that is

available to each carrier on the tower proposed by Petitioner.

Petitioner's proposal locates GTE at 155 feet to accommodate

GTE's technical needs. AT&T would locate GTE no higher than 120

feet thereby substantially reducing the area served by GTE. If

GTE is located at 120 feet, GTE would need to construct another

tower a mile away in order to obtain the coverage achieved at 155

feet in Petitioner's proposal.

26. The replacement tower proposed by AT&T imposes

additional limitations on AT&T's competitors. It requires GTE to

reduce the size of its antenna to four feet from the eight-foot

antenna in Petitioner's application. AT&T imposes a similar

reduction on Nextel and requires Nextel to agree to a

"compromising antenna" to co-locate on the replacement tower.

27. The continuances ordered by the Board delayed

construction of the tower proposed by Petitioner. If Petitioner

had received approval of the application in July 1999, Petitioner

could have had its proposed tower in service by January 2000.

The delay has placed GTE, Nextel, and PrimeCo at a competitive

disadvantage.

28. As of the date of the administrative hearing, A T&T had

not begun construction of the replacement tower. The school

board has the right to approve any co-location agreements for the

replacement tower proposed by AT&T. AT&T has not submitted any

co-location agreements for school board approval.

29. B oard policy considers the timeliness of a replacement

tower as one factor in determining whether the replacement tower

is "feasible" or a "reasonable alternative" within the meaning of

Section 3-2.001D.1. A replacement tower that would require more

than one year to construct is neither feasible nor a reasonable

alternative.

30. Neither the Board nor its staff enunciates any

intelligible standards for adopting a one-year time limit or for

applying a one-year time limit, including any standard for

identifying the starting point of the one-year limit. For

example, Petitioner first applied for approval on May 17, 1999.

The Board began the one-year period for determining feasibility

of the AT&T replacement tower on September 10, 1999. Respondent

failed to explicate why it started the one-year period on

September 10, 1999, rather than the date of application.

31. The limitations imposed by AT&T for co-location on the

replacement tower and the continuances imposed by the Board,

individually and severally, comprise a "legitimate limiting

factor" within the meaning of Section 3-2001D.1.g. The

limitations and continuances have the effect of placing GTE,

Nextel, and PrimeCo at a competitive disadvantage and also have

the effect of discriminating against the three companies in

violation of Section 3-2001A.

CONCLUSIONS OF LAW

32. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter. Section 4-

505. The parties were duly noticed for the hearing.

33. The burden of p roof is on Petitioner. Section 4-505,

in relevant part, provides:

C. The burden shall be upon the appellant to

show that the decision of the community

development board cannot be sustained by the

evidence before the board and before the

hearing officer, or that the decision of the

board departs from the essential requirements

of law. (emphasis supplied)

34. Section 4-505C authorizes reversal of the decision of

the Board if Petitioner shows either that the decision cannot be

sustained by the evidence or that the decision departs from the

essential requirements of law. Section 4-505 does not prescribe

the evidentiary standard by which Petitioner must satisfy its

burden of proof.

35. Petitioner satisfied both disjunctive requirements of

the burden of proof prescribed in Section 4-505. Petitioner

showed by clear and convincing evidence that the decision of the

Board cannot be sustained by the evidence and that the decision

departs from the essential requirements of law.

36. Section 3-2001, in relevant part, provides:

D. Telecommunications towers .

1. . . . Joint use of existing

telecommunications towers . . . is required

as an alternative to new tower construction

whenever feasible . Therefore, anyone

considering new tower construction, must

first explore other options. Prior to the

issuance of any building permit for a new

tower, a determination must be made that no

existing tower or other structure is

available as a reasonable alternative . An

applicant requesting a permit for a new tower

shall submit evidence to the city that

supports a conclusion that no reasonable use

can be made of any existing tower or

structure. The evidence shall clearly

establish one or more of the following

conditions: (emphasis supplied)

a. No existing tower or structure is located

within the geographic area required to meet

the applicant's coverage requirements.

b. Existing towers or structures are not of

sufficient height to meet the applicant's

engineering requirements.

c. Existing towers or structures do not have

sufficient structural strength to support the

applicant's proposed antenna and related

equipment.

d. The applicant's proposed antenna would

cause electromagnetic interference with or

would be interfered with by other antennas if

place on any existing tower or structure.

e. The fees, costs or contractual provisions

required by the owner in order to share an

existing tower or structure for a time period

of 25 years, [sic] exceed the cost of

developing a new tower.

f. It is not financially feasible to modify

or replace an existing tower to accommodate

the proposed antenna.

g. The applicant demonstrates that there are

other legitimate limiting factors that render

existing towers and structures unsuitable.

37. The evidence clearly established the pre sence of one or

more of the conditions that must be present for the approval of

an application to construct a new tower. It is uncontroverted

that the existing tower at the high school is not of sufficient

height or structural strength, within the meaning of Section 3-

2001D.1.b and c., to accommodate co-location of an additional

antenna. Petitioner showed by clear and convincing evidence that

the replacement tower proposed by AT&T would not provide

sufficient height location for the GTE, Nextel, and PrimeCo

antennae within the meaning of Section 3-2001D.1.b.

38. The evidence clearly established that there are other

legitimate limiting factors that render the replacement tower

proposed by AT&T unsuitable within the meaning of Section 3-

2001D.1.g. The seven antennae proposed by AT&T would not provide

adequate coverage to each carrier and would necessitate at least

one additional tower. The absence of an interference study

prevents PrimeCo from committing to a replacement tower and may

require PrimeCo to build another tower. AT&T's location of GTE

no higher than 120 feet on the replacement tower and reduction of

antenna size from eight to four feet would substantially reduce

the area served by GTE and would require GTE to build a second

tower within one mile of the replacement tower. Similar

reductions to the antenna of Nextel would enhance Nextel's need

for an additional tower.

39. Petitioner showed by clear and convincing evidence that

the decision of the Board departed from the essential

requirements of law within the meaning of Section 4-505C.

Section 3-2001, in relevant part, provides:

A. Purpose and goals . The purpose of this

division is to establish general standards

for the siting of telecommunications towers

and antennas. The goals are to encourage the

use of existing structures as an alternative

to new tower construction, to encourage the

joint use of new towers, to encourage the

design and construction of towers and

antennas which minimize the adverse visual

impacts, and to enhance the ability of

providers of telecommunications services to

furnish such services with the city quickly,

effectively and efficiently. It is not the

intent of the city to discriminate among

providers of functionally equivalent

services, or to prohibit or have the effect

of prohibiting the provision of personal

wireless services.

40. The evidence clearly established that the replacement

tower proposed by AT&T would not enhance the ability of GTE,

Nextel, and PrimeCo to furnish services within the city quickly,

effectively, and efficiently within the meaning of Section 3-

2.001A. Conversely, the evidence clearly established that the

tower proposed by Petitioner would enhance the ability of those

providers to furnish such services.

41. For reasons stated in paragr aph 38, the evidence

clearly established that the replacement tower proposed by AT&T

would encourage the construction of additional towers by GTE,

Nextel, and PrimeCo in violation of the goals prescribed in

Section 3-2001A. Conversely, the evidence clearly established

that the tower proposed by Petitioner would encourage the use of

the proposed tower by reducing the need of GTE, Nextel, and

PrimeCo for additional towers.

42. The evidence clearly established that the continuances

ordered by the Board did not enhance the ability of GTE, Nextel,

and PrimeCo to furnish services within the city quickly,

effectively, and efficiently. The continuances delayed

construction of the tower proposed by Petitioner. If Petitioner

had received approval of the application in July 1999, Petitioner

could have had its proposed tower in service by January 2000.

The continuances ordered by the Board and the significant

limitations imposed by AT&T for the replacement tower had the

effect of placing GTE, Nextel, and PrimeCo at a competitive

disadvantage and also had the effect of discriminating among

providers within the meaning of Section 3-2001A. The competitive

disadvantage is underscored by the failure of the Board to

explicate any intelligible standard for application of the one-

year time limit for availability of the replacement tower.

43. The Code does not define the term "existing." The Code

provides in Section 8-101N that words not defined in the Code

"shall have the meaning indicated by common dictionary

definition." The replacement tower is not an existing tower

because it does not have "actual or real being" and is not

"present . . . in a certain place." The American Heritage

Dictionary, Second College Edition , 475 (Houghton Mufflin Company

1982). The Board is bound by the express terms of its own

ordinance. Carroll v. City of Miami Beach , 198 So. 2d 643, 645

(Fla. 3d DCA 1967), rev. denied , 545 So. 2d 1366 (1989).

44. The Board's determination that a replacement tower is

an "existing" tower departs from the essential requirements of

law. When the Board defined an "existing" tower to mean a

replacement tower, the Board construed the term "existing" in a

manner other than its common ordinary meaning; inserted

additional terms not found in the express terms of the ordinance;

and thereby departed from the essential requirements of law.

Mandalstam v. City Commission of the City of South Miami , 539 So.

2d 1139, 1140 (Fla. 3d DCA 1988). Zoning laws are in derogation

of the common law and must be strictly construed in favor of a

property owner such as Petitioner. Id.

45. The decision of the Board departed from the essential

requirements of law by engaging in ex parte communications in

violation of Section 4-206D.3. Section 4-206D.3. provides:

. . . Except as provided in this subsection,

no member of the . . . board . . . shall

engage in any ex parte communications with

any person in regard to the substance of a

quasi-judicial matter which is to be

considered by the board. . . . (emphasis

supplied)

a. Members of the . . . board may conduct

personal investigations and site visits

regard [sic] to a quasi-judicial pending

[sic] before them provided that the existence

of such investigation is disclosed at a

public hearing and made a part of the record

before final action on the matter.

46. The Board went far beyond the personal investigation

and site visit authorized in Section 4-206D.3.a. Board members

engaged in ex parte communications with the superintendent of

schools without allowing Petitioner to be present to cross-

examine the evidence obtained by the Board. Such ex parte

communications violated Section 4-206D.3., as well as fundamental

notions of the due process right to cross-examine evidence that

the trier of fact will consider in determining the substantial

interests of Petitioner.

FINAL ORDER

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that the decision of the Board is reversed, and the

application of Petitioner is approved.

DONE AND ORDERED this 30th day of August, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of August, 2000.

COPIES FURNISHED:

Darryl R. Richards, Esquire

Johnson, Blakely, Pope, Bokor,

Ruppel and Burns, P.A.

Post Office Box 1100

Tampa, Florida 33601

Leslie K. Dougall-Sides, Esquire

Assistant City Attorney

Post Office Drawer 4748

Clearwater, Florida 33758

Cynthia Goudeau, City Clerk

City of Clearwater

Post Office Box 4748

Clearwater, Florida 34618

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled

to judicial review pursuant to Section 120.68, Florida Statutes.

Review proceedings are governed by the Florida Rules of Appellate

Procedure. Such proceedings are commenced by filing one copy of

a Notice of Appeal with the Agency Clerk of the Division of

Administrative Hearings and a second copy, accompanied by filing

fees prescribed by law, with the District Court of Appeal, First

District, or with the District Court of Appeal in the Appellate

District where the party resides. The Notice of Appeal must be

filed within 30 days of rendition of the order to be reviewed.