10-009403 Easton Homeowners Association And Benjamin&Apos;S Run Homeowners Association vs. City Of Tallahassee And Lane Wright On Behalf Of At&Amp;T
 Status: Closed
Recommended Order on Wednesday, April 20, 2011.


View Dockets  
Summary: AT&T application to City for approval of site plan for cell tower met all criteria.

1Case No. 10-9403

4STATE OF FLORIDA

7DIVISION OF ADMINISTRATIVE HEARINGS

11EASTON HOMEOWNERS ASSOCIATION )

15AND BENJAMIN'S RUN HOMEOWNERS RECOMMENDED ORDER )

22ASSOCIATION, )

24Petitioners, )

26)

27vs. )

29)

30CITY OF TALLAHASSEE AND LANE )

36WRIGHT ON BEHALF OF AT&T, )

42)

43Respondents. )

45)

46)

47On February 28, 2011, a final hearing was held in this case

59in Tallahassee, before J. Lawrence Johnston, Administrative Law

67Judge, Division of Administrative Hearings.

72APPEARANCES

73For Petitioners: Robert C. Downie, II, Esquire

802660 Egret Lane

83Tallahassee, Florida 32308

86For Respondent City of Tallahassee:

91Hetal H. Desai, Esquire

95Linda R. Hudson, Esquire

99City of Tallahassee

102300 South Adams Street, Box A-5

108Tallahassee, Florida 32301

111For Respondent Lane Wright on Behalf of AT&T:

119Lauralee G. Westine, Esquire

123Law Offices of Lauralee G. Westine, P.A.

130800 Tarpon Woods Boulevard, Suite E-1

136Palm Harbor, Florida 34685

140STATEMENT OF THE ISSUE

144The issue in this case is whether the Tallahassee-Leon

153County Planning Commission should approve, with conditions

160specified by the Development Review Committee (DRC), a type B

170site plan submitted by Wright/AT&T for construction of a cell

180tower at the corner of Buck Lake Road and Pedrick Road.

191PRELIMINARY STATEMENT

193Petitioners and others who no longer are parties requested

202a quasi-judicial proceeding under Section 2-138 of the City of

212Tallahassee Land Development Code on the DRC’s approval of

221Wright/AT&T’s type B site plan.

226The final hearing was held on February 28, 2011. The

236parties filed a Prehearing Stipulation on February 22, 2011.

245The Prehearing Stipulation eliminated several issues (some of

253which still are maintained by non-party members of the public),

263including issues relating to the "environmental effects of radio

272frequency emissions” (which are preempted by federal law),

280notice, and property values.

284At the final hearing, the following members of public

293testified: Zoe Kulakowski; John Outland; William Dunne;

300Laurie Svec; Dazhen Zhang; John Dew; John Viele; Cherie Pagan;

310Jose Mojitas; Delores Dunne; Laura Barrett; Thomas Ott; and

319Gregory Erickson. Joint Exhibits 1-24 were received in

327evidence. The City called the following witnesses:

334Harold Gregory Harden, a Senior Planner in the City’s Growth

344Management Department; Glenn Berman, the Land Use

351Administrator/Planner II in the City’s Growth Management

358Department; and Susan Denny, a Senior Planner in the City’s

368Planning Department. City Exhibits 1-3 were received in

376evidence. Wright/AT&T called the following witnesses:

382Clifford Lamb, P.E., development project consultant;

388Lane Wright, real estate consultant; Charles Vicchini, an AT&T

397radio frequency (RF) design specialist for North Florida;

405Steve Belovary, an AT&T RF engineering specialist for the

414Tallahassee area; David Taulbee, a real estate appraiser; and

423Byron Block, an attorney, developer, and Trustee of the Tung

433Hill Trust, which owns the property subject to Wright/AT&T type

443B site plan. Petitioners called the following witnesses:

451John Outland, who lives on Tung Hill Drive and is a member of

464the Tung Hill Homeowners Association; Vidya Mysore, president of

473the Easton Homeowners Association; and Laurie Bennett, vice-

481president of the Benjamin’s Run Homeowners Association.

488Petitioners’ Exhibit 1 was received in evidence.

495A Transcript of the final hearing was filed, and the

505parties filed proposed recommended orders, which have been

513carefully considered.

515FINDINGS OF FACT

5181. The applicant, Wright/AT&T, seeks approval of a type B

528site plan for construction of a 150-foot high telecommunications

537antenna support structure (cell tower) on 4,200 square feet of

548the commercially-zoned (C-1) Parcel 8 of the Benjamin’s Run

557planned unit development (PUD) at the southwest corner of Buck

567Lake Road and Pedrick Road, along with a 230 square-foot

577building to house electrical equipment, a gated fence

585surrounding the tower and building, and an access driveway from

595Pedrick Road.

5972. Buck Lake Elementary School is across Pedrick Road from

607Parcel 8. There are numerous residential land uses in the

617immediate vicinity, including the rest of Benjamin’s Run,

625Easton, the Enclave, and Tung Hill.

6313. Wright/AT&T demonstrated that there is a need for a

641cell tower to provide cell phone voice and data services to a

653coverage hole in the vicinity of Parcel 8 of Benjamin’s Run and

665that there are no suitable alternative sites.

6724. Petitioners did not rebut Wright/AT&T’s demonstration

679of need and suitability. They questioned whether the search

688area was broad enough, but the evidence proved that the

698applicant’s search area was appropriate. They questioned

705whether there were any co-location opportunities that would be

714suitable, but the evidence proved that there are none.

7235. The Benjamin’s Run PUD is central to determining

732whether Wright/AT&T’s type B site plan should be approved. The

742City approved the PUD in August 1998.

7496. The approved PUD does not mention telecommunications

757support structures or cell towers explicitly. Under Section

7653.1.2 of the Land Use Concept Plan in the PUD’s Conceptual

776Development Narrative, it states that the proposed development’s

784concept plan “[p]rovides outlet for goods and services at a

794restricted neighborhood scale, serving the immediate

800surroundings.” Section 3.2.1 states that “Benjamin’s Run is

808primarily a residential community with the intended conceptual

816objectives [to] [m]aintain compatibility with the existing

823neighborhoods[; p]rovide limited commercial and employment

829opportunities to the proposed development and surrounding

836neighborhood, at a restricted neighborhood scale[; and d]evelop

844to the infrastructure capabilities currently available . . . .”

854It also states: “The neighborhood commercial will generally be

863located at the intersection of Pedrick Road and Buck Lake Road,

874depicted as Parcel 8. . . . Office use is intended to serve as

888a bridge between the commercial and the residential component of

898parcel 7.”

9007. Under section 3.2.2 of the PUD’s Land Use Concept Plan,

911the residential densities are those allowable for the City’s R-2

921and R-3 Zoning Districts. Under section 3.2.3, office use is

931permitted as minor or major office parks, limited to those

941permitted in the City’s C-1 Zoning District, and limited to a

952maximum of 25,000 square feet. Under section 3.2.4, minor to

963neighborhood commercial uses are permitted, limited to those

971permitted in the City’s C-1 Zoning District, and limited to

981neighborhood commercial with a maximum of 25,000 square feet.

9918. Section 3.3 of the PUD’s conceptual development

999narrative provides that uses are limited to those permitted

1008within the R-2, R-3, and C-1 zoning districts of the City Code,

1020as amended November 1997. It also states that permitted uses

1030“will be listed by Standard Industrial Code [SIC] number, where

1040applicable, or specify a definition of other permitted uses not

1050listed by SIC numbers.” Section 7.2 of the PUD lists 64 SICs

1062permitted in C-1, and none cover telecommunications support

1070structures. 1/

10729. There also is no SIC for billboards. Section 4.6.2 of

1083the PUD’s general development standards, under signs,

1090specifically prohibits them. There is no similar prohibition of

1099cell towers.

110110. Section 4.5.5 of the PUD’s general development

1109standards, under non-residential building and site design,

1116states: “All electrical and telecommunication utilities shall

1123be located underground, except for antennas which may be located

1133on rooftops so long as the roof design screens any rooftop

1144equipment from view from public rights of way.”

115211 . Section 10-425(c)(1) of the City’s Land Development

1161Code, known as the Telecommunications Siting Ordinance, which

1169governs the siting of cell towers, was adopted in November 1996.

1180The ordinance was amended in 1999; but, from its inception, it

1191allowed cell towers in any zoning district so long as the tower

1203met the requirements of section 10-425.

1209CONCLUSIONS OF LAW

121212 . The site plan review criteria are: (1) whether the

1223applicable zoning standards and requirements have been met; (2)

1232whether the applicable criteria of chapter 5 of the City of

1243Tallahassee Code have been met; and (3) whether the requirement

1253of other applicable regulations or ordinances which impose

1261specific requirements on site plans and development have been

1270met. § 9-153, Code. In this case, it is undisputed that the

1282applicable criteria of chapter 5 of the Code have been met. The

1294other two criteria involve consideration of section 10-425(c)(1)

1302of the Code and the Benjamin’s Run PUD.

131013 . Section 10-425(c)(1) of the Code provides that a

1320communication antenna support structure may be located in any

1329zoning district so long as it meets the requirements of section

134010-425. Section 10-425 includes co-location requirements, a

1347setback from residential lots, a maximum height, fencing

1355requirements, landscaping requirements, and a prohibition of

1362illumination except as required by the Federal Aviation

1370Administration. The only requirement of section 10-425 at issue

1379in this proceeding is a demonstration by the applicant that a

1390suitable alternative site does not exist. See § 10-425(t)(5),

1399Code. Wright/AT&T made such a demonstration, which was not

1408rebutted by Petitioners. Id. 2/

141314 . By virtue of the previously-enacted section 10-425, a

1423cell tower is allowed in any zoning district, including in the

1434Benjamin’s Run PUD, if it meets the requirements of section 10-

1445425. Petitioners argue that, notwithstanding section 10-425, a

1453cell tower would not be allowed in Benjamin’s Run if it is

1465clearly contrary to the PUD.

147015 . Section 3.3 of the PUD’s conceptual development

1479narrative states that permitted uses “will be listed by Standard

1489Industrial Code [SIC] number, where applicable, or specify a

1498definition of other permitted uses not listed by SIC numbers.”

1508No SIC for cell towers is listed, and cell towers are not

1520specifically mentioned in the PUD. Petitioners contend that

1528this omission means that cell towers are not allowed in the PUD.

1540But the PUD does not explicitly prohibit cell towers, as it does

1552billboards, which also have no SIC. In addition, section 3.3

1562limits uses to those permitted within the R-2, R-3, and C-1

1573zoning districts of the City Code, as amended November 1997,

1583which includes cell towers meeting the requirements of section

159210-425 of the Code.

159616 . Section 4.5.5 of the PUD’s general development

1605standards, under non-residential building and site design,

1612requires all electrical and telecommunication utilities except

1619antennas to be located underground and limits antennas to

1628rooftops if screened from view from public rights-of-way.

1636Petitioners contend that this provision prohibits cell towers.

1644If intended to prohibit cell towers notwithstanding section 10-

1653425 of the Code and section 3.3 of the PUD’s conceptual

1664development narrative, this provision would have had to make

1673such a prohibition explicit and clear. Since it did not,

1683Petitioners' contention is rejected.

1687RE COMMENDATION

1689Based upon the foregoing Findings of Fact and Conclusions

1698of Law, it is

1702RECOMMENDED that the Planning Commission approve

1708Wright/AT&T’s type B site plan, with the DRC’s conditions.

1717DON E AND ENTERED this 20th day of April, 2011, in

1728Tallahassee, Leon County, Florida.

1732S

1733J. LAWRENCE JOHNSTON

1736Administrative Law Judge

1739Division of Administrative Hearings

1743The DeSoto Building

17461230 Apalachee Parkway

1749Tallahassee, Florida 32399-3060

1752(850) 488-9675

1754Fax Filing (850) 921-6847

1758www.doah.state.fl.us

1759Filed with the Clerk of the

1765Division of Administrative Hearings

1769this 20th day of April, 2011.

1775ENDNOTES

17761 / SIC 7389, miscellaneous business and service not listed

1786elsewhere, lists over 130 different businesses, and none are

1795remotely similar to a cell phone tower.

18022 / Petitioners fault the City for not hiring independent

1812consulting experts to evaluate Wright/AT&T’s demonstration of no

1820suitable alternative site. Even if this would be reasonable or

1830prudent and not cost-prohibitive, it is not required by section

184010-425, and Petitioners have cited no other legal requirement

1849for an independent evaluation.

1853COPIES FURNISHED :

1856Lauralee G. Westine, Esquire

1860Law Offices of Lauralee G. Westine, P.A.

1867800 Tarpon Woods Boulevard, Suite E-1

1873Palm Harbor, Florida 34685

1877Robert C. Downie, II, Esquire

1882Robert Downie, Attorney at Law

18872660 Egret Lane

1890Tallahassee, Florida 32308

1893Hetal H. Desai, Esquire

1897Linda R. Hudson, Esquire

1901City of Tallahassee

1904300 South Adams Street, Box A-5

1910Tallahassee, Florida 32301

1913Russell Snyder, Planning Commission Clerk

1918City of Tallahassee

1921Tallahassee-Leon County Planning Department

1925300 South Adams Street, Box A-5

1931Tallahassee, Florida 32301

1934NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

1940Under section 2-138(k) of the City of Tallahassee Land Development

1950Code, all parties have the right to submit written exceptions

1960within 10 days from the date of this Recommended Order. Any

1971exceptions to this Recommended Order should be filed with the

1981Tallahassee-Leon County Planning Commission, which will issue the

1989final order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 05/10/2011
Proceedings: City of Tallahassee's Response to and Motion to Strike Petitioners' Exceptions filed.
PDF:
Date: 04/20/2011
Proceedings: Recommended Order
PDF:
Date: 04/20/2011
Proceedings: Recommended Order (hearing held February 28, 2011). CASE CLOSED.
PDF:
Date: 04/20/2011
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 04/08/2011
Proceedings: Proposed Recommended Order by Respondents, City of Tallahassee and AT&T filed.
PDF:
Date: 04/08/2011
Proceedings: Petitioner`s Proposed Recommended Order filed.
PDF:
Date: 03/28/2011
Proceedings: Order Granting Extension of Time.
Date: 03/25/2011
Proceedings: Transcript of Proceedings, Volume I and 2 (not available for viewing) filed.
PDF:
Date: 03/25/2011
Proceedings: Notice of Filing Transcript.
PDF:
Date: 03/23/2011
Proceedings: Petitioners' and Respondent's Joint Motion for Extension of Time filed.
PDF:
Date: 03/04/2011
Proceedings: Letter to Judge Johnston from H. Desai regarding original documents submitted by the public filed.
Date: 02/28/2011
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 02/24/2011
Proceedings: Voluntary Withdrawal of Petition for Administrative Hearing filed.
PDF:
Date: 02/22/2011
Proceedings: Prehearing Stipulation filed.
PDF:
Date: 02/17/2011
Proceedings: Order on Motions in Limine.
PDF:
Date: 02/16/2011
Proceedings: Petitioner's Exhibit B to Response to Motion in Limine filed.
PDF:
Date: 02/16/2011
Proceedings: Petitioner's Response to Motion in Limine filed.
PDF:
Date: 02/14/2011
Proceedings: Respondents City of Tallahassee and Lane Wright on Behalf of AT&T's Motions in Limine filed.
PDF:
Date: 02/08/2011
Proceedings: Order Denying Continuance.
PDF:
Date: 02/07/2011
Proceedings: Petitioner's Request for Admissions to Respondent, Lane Wright on Behalf of AT&Tfiled.
PDF:
Date: 02/07/2011
Proceedings: Petitioner's Request for Admissions to Respondent, City of Tallahassee filed.
Date: 02/04/2011
Proceedings: CASE STATUS: Motion Hearing Held.
PDF:
Date: 01/27/2011
Proceedings: Notice of Appearance (filed by R. Downie).
PDF:
Date: 01/27/2011
Proceedings: Respondent City of Tallahassee's Objection to Petitioners' Second Motion for Continuance and Notice of Unavailability filed.
PDF:
Date: 01/27/2011
Proceedings: Respondent Lane Wright's, on behalf of AT&T, Objection to Second Motion for Continuance and Notice of Unavailability filed.
PDF:
Date: 01/20/2011
Proceedings: Motion for Continuance filed.
PDF:
Date: 01/04/2011
Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for February 28, 2011; 9:00 a.m.; Tallahassee, FL).
PDF:
Date: 01/03/2011
Proceedings: Motion for Continuance filed.
PDF:
Date: 12/21/2010
Proceedings: Respondents' Witness List filed.
PDF:
Date: 12/16/2010
Proceedings: Order Dropping the Enclave Homeowners Association and Amending Caption.
PDF:
Date: 12/16/2010
Proceedings: Voluntary Withdrawal of Petition for Administrative Hearing filed.
PDF:
Date: 11/15/2010
Proceedings: Notice of Compliance filed.
PDF:
Date: 11/02/2010
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 11/02/2010
Proceedings: Notice of Hearing (hearing set for January 31, 2011; 9:00 a.m.; Tallahassee, FL).
PDF:
Date: 11/01/2010
Proceedings: Hearing Procedures filed.
PDF:
Date: 10/12/2010
Proceedings: Notice of Appearance (filed by L. Westine).
PDF:
Date: 10/08/2010
Proceedings: Stipulated Motion for Extension of 60-Day Deadline for Quasi-Judicial Hearing filed.
PDF:
Date: 10/04/2010
Proceedings: Notice sent out that this case is now before the Division of Administrative Hearings.
PDF:
Date: 09/30/2010
Proceedings: Second Determination of Standing filed.
PDF:
Date: 09/30/2010
Proceedings: Petition for Quasi-Judicial Proceeding filed.
PDF:
Date: 09/30/2010
Proceedings: Agency referral filed.

Case Information

Judge:
J. LAWRENCE JOHNSTON
Date Filed:
09/30/2010
Date Assignment:
10/04/2010
Last Docket Entry:
05/10/2011
Location:
Tallahassee, Florida
District:
Northern
Agency:
Contract Hearings
 

Counsels

Related DOAH Cases(s) (1):