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.

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

Case No. 10-9403

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EASTON HOMEOWNERS ASSOCIATION )

AND BENJAMIN'S RUN HOMEOWNERS RECOMMENDED ORDER )

ASSOCIATION, )

Petitioners, )

)

vs. )

)

CITY OF TALLAHASSEE AND LANE )

WRIGHT ON BEHALF OF AT&T, )

)

Respondents. )

)

)

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

in Tallahassee, before J. Lawrence Johnston, Administrative Law

Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioners: Robert C. Downie, II, Esquire

2660 Egret Lane

Tallahassee, Florida 32308

For Respondent City of Tallahassee:

Hetal H. Desai, Esquire

Linda R. Hudson, Esquire

City of Tallahassee

300 South Adams Street, Box A-5

Tallahassee, Florida 32301

For Respondent Lane Wright on Behalf of AT&T:

Lauralee G. Westine, Esquire

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

800 Tarpon Woods Boulevard, Suite E-1

Palm Harbor, Florida 34685

STATEMENT OF THE ISSUE

The issue in this case is whether the Tallahassee-Leon

County Planning Commission should approve, with conditions

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

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

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

PRELIMINARY STATEMENT

Petitioners and others who no longer are parties requested

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

Tallahassee Land Development Code on the DRC’s approval of

Wright/AT&T’s type B site plan.

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

parties filed a Prehearing Stipulation on February 22, 2011.

The Prehearing Stipulation eliminated several issues (some of

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

including issues relating to the "environmental effects of radio

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

notice, and property values.

At the final hearing, the following members of public

testified: Zoe Kulakowski; John Outland; William Dunne;

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

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

Gregory Erickson. Joint Exhibits 1-24 were received in

evidence. The City called the following witnesses:

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

Management Department; Glenn Berman, the Land Use

Administrator/Planner II in the City’s Growth Management

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

Planning Department. City Exhibits 1-3 were received in

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

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

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

radio frequency (RF) design specialist for North Florida;

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

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

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

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

B site plan. Petitioners called the following witnesses:

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

the Tung Hill Homeowners Association; Vidya Mysore, president of

the Easton Homeowners Association; and Laurie Bennett, vice-

president of the Benjamin’s Run Homeowners Association.

Petitioners’ Exhibit 1 was received in evidence.

A Transcript of the final hearing was filed, and the

parties filed proposed recommended orders, which have been

carefully considered.

FINDINGS OF FACT

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

site plan for construction of a 150-foot high telecommunications

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

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

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

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

building to house electrical equipment, a gated fence

surrounding the tower and building, and an access driveway from

Pedrick Road.

2. Buck Lake Elementary School is across Pedrick Road from

Parcel 8. There are numerous residential land uses in the

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

Easton, the Enclave, and Tung Hill.

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

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

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

that there are no suitable alternative sites.

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

of need and suitability. They questioned whether the search

area was broad enough, but the evidence proved that the

applicant’s search area was appropriate. They questioned

whether there were any co-location opportunities that would be

suitable, but the evidence proved that there are none.

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

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

City approved the PUD in August 1998.

6. The approved PUD does not mention telecommunications

support structures or cell towers explicitly. Under Section

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

Development Narrative, it states that the proposed development’s

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

restricted neighborhood scale, serving the immediate

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

primarily a residential community with the intended conceptual

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

neighborhoods[; p]rovide limited commercial and employment

opportunities to the proposed development and surrounding

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

to the infrastructure capabilities currently available . . . .”

It also states: “The neighborhood commercial will generally be

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

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

a bridge between the commercial and the residential component of

parcel 7.”

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

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

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

permitted as minor or major office parks, limited to those

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

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

neighborhood commercial uses are permitted, limited to those

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

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

8. Section 3.3 of the PUD’s conceptual development

narrative provides that uses are limited to those permitted

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

as amended November 1997. It also states that permitted uses

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

applicable, or specify a definition of other permitted uses not

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

permitted in C-1, and none cover telecommunications support

structures. 1/

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

the PUD’s general development standards, under signs,

specifically prohibits them. There is no similar prohibition of

cell towers.

10. Section 4.5.5 of the PUD’s general development

standards, under non-residential building and site design,

states: “All electrical and telecommunication utilities shall

be located underground, except for antennas which may be located

on rooftops so long as the roof design screens any rooftop

equipment from view from public rights of way.”

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

Code, known as the Telecommunications Siting Ordinance, which

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

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

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

met the requirements of section 10-425.

CO NCLUSIONS OF LAW

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

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

whether the applicable criteria of chapter 5 of the City of

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

of other applicable regulations or ordinances which impose

specific requirements on site plans and development have been

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

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

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

of the Code and the Benjamin’s Run PUD.

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

communication antenna support structure may be located in any

zoning district so long as it meets the requirements of section

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

setback from residential lots, a maximum height, fencing

requirements, landscaping requirements, and a prohibition of

illumination except as required by the Federal Aviation

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

in this proceeding is a demonstration by the applicant that a

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

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

rebutted by Petitioners. Id. 2/

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

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

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

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

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

clearly contrary to the PUD.

15 . Section 3.3 of the PUD’s conceptual development

narrative states that permitted uses “will be listed by Standard

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

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

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

specifically mentioned in the PUD. Petitioners contend that

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

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

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

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

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

which includes cell towers meeting the requirements of section

10-425 of the Code.

16 . Section 4.5.5 of the PUD’s general development

standards, under non-residential building and site design,

requires all electrical and telecommunication utilities except

antennas to be located underground and limits antennas to

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

Petitioners contend that this provision prohibits cell towers.

If intended to prohibit cell towers notwithstanding section 10-

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

development narrative, this provision would have had to make

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

Petitioners' contention is rejected.

RE COMMENDATION

Ba sed upon the foregoing Findings of Fact and Conclusions

of Law, it is

REC OMMENDED that the Planning Commission approve

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

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

Tallahassee, Leon County, Florida.

S

J. L AWRENCE JOHNSTON

Adm inistrative Law Judge

Div ision of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of April, 2011.

ENDNOTES

1 / SIC 7389, miscellaneous business and service not listed

elsewhere, lists over 130 different businesses, and none are

remotely similar to a cell phone tower.

2 / Petitioners fault the City for not hiring independent

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

suitable alternative site. Even if this would be reasonable or

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

10-425, and Petitioners have cited no other legal requirement

for an independent evaluation.

COPIES FURNISHED :

Lauralee G. Westine, Esquire

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

800 Tarpon Woods Boulevard, Suite E-1

Palm Harbor, Florida 34685

Robert C. Downie, II, Esquire

Robert Downie, Attorney at Law

2660 Egret Lane

Tallahassee, Florida 32308

Hetal H. Desai, Esquire

Linda R. Hudson, Esquire

City of Tallahassee

300 South Adams Street, Box A-5

Tallahassee, Florida 32301

Russell Snyder, Planning Commission Clerk

City of Tallahassee

Tallahassee-Leon County Planning Department

300 South Adams Street, Box A-5

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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

Code, all parties have the right to submit written exceptions

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

exceptions to this Recommended Order should be filed with the

Tallahassee-Leon County Planning Commission, which will issue the

final order in this case.