16-000277 Florida Keys Media, Llc vs. Monroe County Planning Commission Status: Closed DOAH Final Order on Wednesday, June 1, 2016.

Summary: Resolution denying application to construct a 199-ft commercial tower affirmed because of adverse effect on immediate vicinity and impact on value of nearby homes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA KEYS MEDIA, LLC,

Appellant,

vs. Case No. 1 6 - 0277

MONROE COUNTY PLANNING

COMMISSION,

Appellee ,

a nd

UPPER SUGARLOA F RESIDENTS

ASSOCIATION, INC.,

Intervenor.

_____________________________ __/

FINAL ORDER

In this administrative appeal to the Division of

Administrative Hearings (DOAH) , Appellant, Florida Keys Media,

LLC (Florida Media or Appellant), seeks r eview of Resolution

No. P36 - 15 (Resolution) rendered by the M onroe County Planning

Commission (Commission) on November 20, 2015. The Resolution

denied a n application for a Major Conditional Use by Florida

Media to erect a 19 9 - foot monopole communication tower to serve

as a wireless Site Transmitter Link (STL) on a 1.01 - acre parcel

located on Upper Sugarloaf Key in the Lower Keys portion of

Monroe County (County) .

After a five - volume Record of the underlying proceeding was

filed by the Commission Clerk, the Upper Sugarloaf Residents

Association, Inc., intervened i n support of Appellee. Briefs

were filed by all parties. Oral argument was heard by

teleconference at sites in Marathon and Tallahassee on May 16,

2016.

ISSUES

Appellant raises three issues on appeal: (1) whether there

is competent substantial eviden ce to support the Resolution;

(2) whether the Commission departed from the essential

requirements of the law by incorrectly applying and interpreting

the law governing the application; and (3) whether the

Commission denied Appellant due process by conclud ing that the

application lacked sufficient detail necessary for a complete

review. The parties agree, however, that the due process

argument need not be addressed in this Final Order .

BACKGROUND

Appellant owns seven Florida Keys FM radio stations and

oper ates an AM station . The property in question is located on

Upper Sugarloaf Key, between Mile Marker 18 and 19 on the

Florida Bay side of U.S. Highway 1, at 830 Crane Boulevard ,

almost one mile north of U.S. Highway 1. App ellant purchased

the property in March 2014 for the purpose of consolidating five

FM Lower/Middle Keys radio stations into one building and

housing a microwave STL link for four towers located in Ramrod

Key, Grassy Key, Sugarloaf Key, and Cudjoe Key. The site was

purchase d before Appel lant received final approval for

construction of the tower.

There is a n elevated one - story (two stories high) office

building , with additional outside storage, on the site,

constructed around 200 3 . An existing concrete pad lies behind

the office buildin g. If the application is approved, Appellant

intends to construct on the pad a 199 - foot monopole (non - guyed)

tower, place an associated generator on an adjacent elevated

platform, and install an access/utility easement at the

location. In addition to a s hort weekly maintenance run, t he

propane generator will operate during any power failure . The

tower will carry STL systems for five FM and one AM broadcast

stations , stretching from Stock Island to Grassy Key, and a

future co llocation for a minimum of thr ee Personal

Communications Service (PCS) wireless carriers. The proposed

site is centrally located to serve all six stations, which lie

within a radius of 20 to 25 miles.

The property is zoned Suburban Commercial (SC) , which

allows light industrial uses subject to approval of a

conditional use and other limitations . A communications tower

is an allowed major conditional use within the SC district. See

§ 130 - 93 (c) ( 8 ) , M.C.C. Appellant's lot, a nd two others, on

Crane Boulevard form a small SC island in a sea of residential

zoning districts. One of the three SC lots is occupied by

affordable housing units.

Except for the lot immediately to the west of Appellant's

parcel, the area to the west is characterized by very low

density residential properties, pr imarily an acre in size with

single - family homes. There is a great deal of native natural

habitat in that area. The lot abutting to the east is occupied

by two residential buildings, each containing two residential

dwelling units. To the east of that li es a Suburban Residential

district containing two subdivisions. One of them, Indian Mound

Estates, consists of 153 homes , with its closest boundary line

only 253 feet from Appellant's property. To the north of

Appellant's lot is a third subdivision. To the southeast is the

Sugarloaf Sports and Leisure Club , a commercial establishment .

Immediately to the south is a single - family residence separated

from the site by a native vegetation buffer. Overall, the

immediate vicinity of the structure can be chara cterized as low

density residential, low intensity commercial, and native areas.

Most of the population of Upper Sugarloaf Key is concentrated in

th at part of the island where Appellant's property is located.

In all, ther e are approximately 250 homes, an d an estimated

1,000 residents, located within one - half mile of the proposed

tower. A public school, Sugarloaf Middle School, is located

south of the parcel and close to U.S. Highway 1, but it is not

in the immediate vicinity of Appellant's property.

Th ere are three other radio towers on Sugarloaf Key, all

illuminated and taller than the one proposed , but they are

located within a few hundred feet of the heavily - trafficked

U.S. Highway 1 in mangrove areas away from residential areas and

not in the immed iate vicinity of the proposed new tower. Two

other towers are located on Cudjoe Key , the next island around

two miles to the east . The record shows that there are at least

19 other wireless towers in Florida Media's Key West to Marathon

service area.

On April 27, 2015, Florida Media applied to the Planning

Department for a Major Conditional Use . A major conditional use

requires that the activity comp ly with nine standards set forth

in the Code. See § 110 - 67, M.C.C. Relevant here are s tandards

2 and 4 , which require that the Commission consider whether the

use is consistent with the community character of the immediate

vicinity and whether the use will have an adverse effect on the

value of the surrounding properties. Development standards

applicable to wireless communications facilities must also be

met . See § 146 - 5, M.C.C.

The application went before the Development Review

Committee (DRC) on July 28, 2015. Review by the DRC is a

required step in the approval process before the matter is

consider ed by the Commission. Finding that all standards for a

major conditional use and wireless communications facility were

satisfied, on October 22, 2015, t he DRC recommended approval of

the application, with minor conditions. One c ondition required

that add itional trees and landscaping elements be introduced to

minimize the adverse effects of the tower. Of import here, t he

staff concluded the proposed use would not be inconsistent with

the community character of the immediate vicinity due to the

existing de velopment in the area and "the built environment on

Upper Sugarloaf Key [that] includes three existing towers and

numerous utility poles." The report also found that there was

no evidence, one way or the other, that a tower would have " an

adverse impact o n the value of surrounding p roperties. "

After receipt of the staff recommendation, t he C ommission

conducted a hearing on November 18, 2015. At the hearing,

besides considering advice by its own counsel , argument by

counsel for Appellant and Intervenor, and testimony by member s

of the staff , the Commission heard testimony in support of the

application by Florida Media's principal; a planning consultant ;

the president of the Florida Association of Broadcasters; two

members of the Monroe County Sheriff's Of fice; a n agent/

consultant who prepared the application ; and a Florida Media

news broadcaster . Testimony in opposition to the application

was presented by a former c ounty a ttorney ; a certified

residential appraiser; 1 7 members of the public, most of whom

reside in close proximity (in some cases less than 100 feet) to

the proposed tower ; and one resident from Key West. In

addition, the Commission considered a number of document s

submitted by all parties and accepted into the record . In all,

the record con sists of almost 1,000 pages.

According to James Holladay, Florida Media's principal ,

after a diligent search that consumed nine months , he concluded

that the proposed site is the only location in the Lower Keys

with appropriate zoning, an existing office b uilding built to

withstand a significant storm that could safely house a staffed

studio, and a central location for a STL facility to serve five

transmission towers located within a 25 - mile radius . While

other methods of supplying a reliable STL were stud ied,

including internet, telephone lines, and fiber , Mr. Holladay

explained that none of t he se were viable options when the site

was purchased . There are five other towers within a two - mile

area, but Mr. Holladay testified that based on responses from

the owners of three tower s , and his investigation of the other

two , they are not equipped to handle the load requirements for a

STL collation due to design limitations or being located in

wetlands that pre vent further modification . He admitted that

another t ower could handle the backup for four of the FM

stations in case they failed at the primary site, but only a new

tower can withstand a higher wind speed without coming down.

Mr. Holladay further testif ied that the tower will serve as a

reliable wireless r eplacement to the various forms of wired

telecommunications in remote sites (where the radio stations are

located) that Florida Media is currently using to communicate

from its staffed studios to the off - site radio transmitters.

M r. Holladay also testifie d that he intends to combine two

studios and six radio stations and relocate them into the

existing building on the site, which he described as a

" hurricane - proof " facility . An integral part of the facility is

the tower, which will use the STL to relay th e signal from the

radio stations to the main antenna and then to the listeners so

that they can still access emergency information by radio if

t elephone and internet services go down in a storm . Each studio

will have a small antenna on the tower that tran smits its

distinct audio and dat a from the new studio on Crane Boulevard

to wherever the tower for that station is located.

Florida Media placed into the record two site specific

property appraisals for communication towers sited near

residential prope rties in two other area s of the Lower Keys, a

new tower on Stock Island a few miles east of Key West , and an

older one on Big Coppitt Key, constructed in 2003, which lies

just east of Stock Island and the Key West Naval Air Station .

These studies were pre pared by a non - testifying certified

appraiser and concluded that existing cellular phone and

wireless towers in those locations did not have any measurable

impact on the value of adjacent residential properties.

Other testimony revealed that the FAA, FCC , and County

Mosquito Control District do not require lights on the tower ;

there will be no environmental impacts ; and the tower will not

impact mosquito control operations on the island . From a safety

perspective, if it fails, the tower is designed to co llapse

within the parcel, and not on adjacent properties. Finally,

Appellant presented testimony that two radio stations are the

primary Lower Keys station s in the County Emergency Alert

System , and the STL tower will serve as a more reliable form of

wire less communication to the remote sites than the existing

wired network in the event a major storm strikes the area .

Twenty persons testified in opposition to the application

on the basis of aesthetics, property value concerns, and some

impermissible consid erations, such as health and safety issues.

A former c ounty a ttorney, who assisted in drafting the

language for the SC zoning district, testified that the facility

is inconsistent with the C ode because it is a regional facility

serving a 25 - mile area and is not designed to meet the needs of

the immediate vicinity, as required by the Code. He also

disputed the assertion by Appellant that another tower, located

on Ramrod Key to the east of Cudjoe Key , is sited in the middle

of a swamp , making access imposs ible and limiting the ability to

modify its load capacity .

A certified residential appraiser , Lucy Paige, disagreed

with Appellant's appraisals , which concluded a tower ha s no

effect on the value of adjacent residential properties.

Ms. Paige testif ied that the appraisals are not comparable to

Upper Sugarloaf Key, as th e neighborhoods selected by

Appellant's appraiser do not have the rural, residential

character of Upper Sugarloaf Key. She explained that the

selected areas are located on highway fro ntage parcels near

U.S. Highway 1, they sit in the midst of large concrete poles,

service stations, an aqueduct substation, or near a military

airfield , and they are surrounded by commercial properties. In

her opinion, a tower on Crane Boulevard would ne gatively impact

nearby residential property values. This was confirmed in

written comments by t hree other non - testifying licensed

realtors, who concluded that a home near the proposed tower w ill

have to be "deeply discounted " in order to be sold, the towe r

w ill have " an adverse effect on the value of those neighboring

properties, " and the tower "would definitely impact the

marketability of homes in the area."

The record shows that four apartment s abut Appellant's

property to the east . Also , Mira Negron' s homestead on Mad Bob

Road is immediately adjacent to the parcel ; the home of another

resident , Zappone Beneway, is 8 2 feet from the property line ;

and the Richardson family home is directly across the street

with the front porch facing the tower . Ms. Ne gron , whose home

is only 92 feet from the tower and 60 feet from the platform ,

testified that the tower and generator will be "right in my face

towering over my front yard , " and aside from the negative impact

on aesthetics and natural beauty, she will be s ubjected to loud

noise every time the generator runs . Vera Vasek, who lives less

than a quarter - mile from the tower, will have an unobstructed

view of the tower from her home . Like other homes in the area,

Ms. Vasek's home had to be constructed at least 12 feet above

B ase F lood E levation (BFE) , or well above street level . She

added that the tree line on the island rises only to 30 feet at

the tallest point and will not shield the view of the 199 - foot

tower. This was confirmed by Elaine Davia, a nearby r esident

who testified that due to BFE requirements, "[n]obody lives on

ground level , " and this will cause the residents to be "more

impacted by that tower . " Another resident on Crane Boulevard,

Claudia Richards, testified that every time she and her husba nd

sit on the front porch, they will have an unobstructed view of

the tower . She was told by realtors that if they sell the ir

home, they will lose around $100,000.00 in its value. A number

of o ther property owners testified that if a tower is built,

they will experience adverse visual and noise impacts and a

possible reduction in property values. They uniformly expressed

the view that "a huge tower" is out of character for the

residential neighborhood. Finally, representatives of two

homeowners' associa tions were unanimous in their view that the

tower was incompatible with the residential character of that

part of the island and would impair the natural beauty of the

area.

At the conclusion of the hearing, the Commission voted 3 - 1,

with one Commissione r absent, to deny the application. This

decision was memorialized by Resolution P36 - 15 issued on

November 20, 2015. In short, the Resolution denied the

application because (a) the proposed use was incompatible with

the community character of the immediat e vicinity and did not

meet the standard in section 110 - 67(2), and (b) the tower would

have an adverse effect on the value of surrounding properties

and did not meet the standard in section 110 - 67 (4) . It also

concluded that Appellant failed to comply with section 146 -

5(1)a.6.(ii) (DD) by failing to demonstrate that there were other

limiting factors that would render existing wire less

communications facilities unsuitable. The rather lengthy

Resolution made the following findings of fact:

1. The subject pro perty is located in a

Suburban Commercial (SC) Land Use (Zoning)

District; and

2. The subject property has a Future Land

Use Map (FLUM) designation of Mixed Use /

Commercial (MC); and

3. The subject property has a tier

designation of Tier I; and

4. In 2002, a minor conditional use permit

was approved to allow the redevelopment of

the property with a 3,375 SF office

building, 2,850 SF storage area beneath the

office building, a 2,540 SF outdoor storage

area adjacent to the office building, and

four empl oyee housing units in two

residential duplex buildings. The approval

is memorialized in Development Order # 14 -

01; and

5. On July 16, 2014, the Planning &

Environmental Resources Department issued a

Letter of Understanding concerning the

development of a proposed antenna supporting

structure on the subject property; and

6. On July 28, 2015, the application was

reviewed by the Development Review

Committee. At the meeting, staff requested

that applicant revise the site and landscape

plans and provide additional supporting

information. In addition, staff requested

that certain conditions be applied to any

approval; and

7. Pursuant to § 130 - 93 of the Monroe

County Code, in the Suburban Commercial (SC)

district, new antenna - supporting structures,

purs uant to section 146 - 5(1) may be

permitted with a major conditional use

permit; and

8. Monroe County Code § 110 - 67 provides the

standards which are applicable to all

conditional uses. When considering

applications for a conditional use permit,

the Plann ing Commission shall consider the

extent to which:

1) The conditional use is consistent with

the purposes, goals, objectives, and

standards of the Monroe County Year 2010

Comprehensive Plan and Monroe County Code;

2) The conditional use is consistent w ith

the community character of the immediate

vicinity of the parcel proposed for

development;

3) The design of the proposed development

minimizes adverse effects , including visual

impacts, or the proposed use on adjacent

properties;

4) The proposed us e will have an adverse

effect on the value of surrounding

properties;

5) The adequacy of public facilities and

services, including but not limited to

roadways, park facilities, police and fire

protection, hospital and Medicare services,

disaster prepared ness program, drainage

systems, refuse disposal, water and sewers,

judged according to standards from and

specifically modified by the public

facilities capital improvements adopted in

the annual report required by this chapter;

6) The applicant for cond itional use

approval has the financial and technical

capacity to complete the development as

proposed and has made adequate legal

provision to guarantee the provision and

development of any open space and other

improvements associated with the proposed

dev elopment;

7) The development will adversely affect a

known archaeological, historical or cultural

resource;

8) Public access to public beaches and

other waterfront areas is preserved as a

part of the proposed development; and

9) The proposed use comp lies with all

additional standards imposed on it by the

particular provision of this chapter

authorizing such use and by all other

applicable requirements of this code; and

9. Monroe County Code §146 - 5 provides the

development standards applicable to wir eless

communications facilities; and

10. Development shall not be inconsistent

with the Monroe County Code; and

11. Development shall not be inconsistent

with the Monroe County Comprehensive Plan;

and

12. Development on Sugarloaf Key shall not

be inc onsistent with the Lower Keys Livable

CommuniKeys Plan; and

13. Development shall not be inconsistent

with the Principles for Guiding Development

in the Florida Keys Area of Critical State

Concern[.]

The Resolution makes two C onclusions of L aw , which st ate

the bases for denying the application :

1. After consideration of the application,

the Planning Commission based on written

evidence (Attachments A and C) and oral

testimony, determined that the new antenna -

supporting structure would be inconsistent

wi th the community character of the

immediate vicinity of the parcel proposed

for development and that the proposed use

will have an adverse effect of [sic] the

value of surrounding properties, and

therefore did no t meet standards 2 and 4 of

Monroe County Co de §110 - 67. The geographic

nature of the archipelago that is the

Florida Keys provides for the existence of

individual island communities. Each of

these islands has their own distinct

character, and it is difficult to evaluate

and quantify this character without the

assistance from those who are permanent

members of these communities. Numerous

residents of Sugarloaf Key assisted the

Planning Commission in under standing the

island's community and its character. This

information was used in making the

det ermination that the new antenna -

supporting structure would be inconsistent;

and

2. The Planning Commission based on written

evidence (Attachments B and C) and oral

testimony also found that the applicant did

not demonstrate that there are other

limiting factors that render existing

wireless communications facilities

unsuitable, as required by Monroe County

Code § 146 - 5(1)a.6.(ii). The applicant,

during the time of the application process

and public hearing, demonstrated that its

existing facilities were providing similar

radio service to the public as they would

provide in the future with the proposed new

antenna - supporting structure. The evidence

supporting this is the radio stations were

using existing broadcasting equipment and

existing towers to broa dcast at the time of

the public hearing. Furthermore, the

applicant testified that other than a new FM

transmitter for emergency backup situations

the proposed tower would not provide

expanded radio service to the public.

On December 14, 2015, Florida Ke ys timely appealed that

decision , and the matter was referred to DOAH for briefing and

oral argument .

LEGAL ANALYSIS

Pursuant to a contract , DOAH has jurisdiction to consider

this appeal under section 102 - 213 , M.C.C. The hearing officer

"may affirm, rev erse or modify the order of the planning

commission." § 102 - 218(b), M.C.C. The hearing officer's order

is subject to the following limitations:

The hearing officer's order may reject or

modify any conclusion of law or

interpretation of the county land

de velopment regulations or comprehensive

plan in the planning commission's order,

whether stated in the order or necessarily

implicit in the planning commission's

determination, but he may not reject or

modify any findings of fact unless he first

determines from a review of the complete

record, and states with particularity in his

order, that the findings of fact were not

based upon competent substantial evidence or

that the proceeding before the planning

commission on which the findings were based

did not co mply with the essential

requirements of the law.

Id. Thus, the undersigned must determine whether the findings

in the Resolution are based on competent substantial evidence,

and whether the proceeding on which the findings were based

complied with the es sential requirements of the law. Unlike the

three - tier judicial review of final administrative action by a

circuit court, procedural or due process violations may not be

considered. See, e.g. , Osborn v. Monroe Cnty. Planning Comm 'n ,

Case No. 03 - 4720 (Fla . DOAH Nov. 1, 2004)("the review criteria

are limited and do not include consideration of whether

procedural due process was afforded by the Commission").

Therefore, an argument by Appellant that it was denied due

process is not within the scope of this a ppeal. See Appellant's

Brief, pp. 40 - 42.

The issue of whether the Commission complied with the

essential requirements of the law is synonymous with whether the

Commission "applied the correct law." Haines City Cmty. Dev. v.

Heggs , 658 So. 2d 523, 530 (Fl a. 1995).

When used as an appellate standard o f review, competent

evidence has been construed to be "legally sufficient evidence"

or evidence that is "sufficiently relevant and material that a

reasonable mind would accept it as adequate to support the

co nclusion reached." DeGroot v. Sheffield , 95 So. 2d 912, 916

(Fla. 1957). Substantial evidence is evidence that provides a

factual basis from which a fact at issue may reasonably be

inferred. Id. Lay opinion testimony can establish competent

substantial evidence , so long as it is fact based . Miami - Dade

Cnty. v. Walberg , 739 So. 2d 115, 117 (Fla. 3d DCA 1999). Lay

individuals have been found to be just as competent as expert

witnesses to proffer views on aesthetics. Bd. of Cnty. Comm 'rs

o f Pinellas Cnt y. v. City of Clearwater , 440 So. 2d 497, 499

(Fla. 2d DCA 1983) ( "The local, lay individuals with first - hand

knowledge of the vicinity who were heard in opposition at the

two public hearings were as qualified as 'expert witnesses' to

offer views on the eth ereal, factual matter of whether the

City's proposed dock would materially impair the natural beauty

and recreational advantages of the area.") . On the other hand,

"mere generalized statements of opposition are to be

disregarded, but fact - based testimony is not." Walberg , 739 So.

2d at 117. So long as there is competent substantial evidence

supporting the findings, both implicit and explicit, made by the

Commission in reaching its decision, they will be sustained.

See, e.g. , Fla. Power & Light Co. v. Ci ty of Dania ,

761 So. 2d 1089, 1093 (Fla. 2000) ; Collier Med. Ctr., Inc. v.

Dep't of Health & Rehab. Servs. , 462 So. 2d 83, 85 (Fla. 1st DCA

1985). In determining whether the Commission's decision is

supported by competent substantial evidence, t he hearing officer

cannot second - guess the wisdom of the decision, reweigh

conflicting testimony presented to the Commission, or substitute

his judgment for that of the Commission as to the credibility of

witnesses. Haines City , 658 So. 2d at 530. And t h e issue is

not whether the Commission's decision is the best decision or

the right decision or even a wise decision. " These are

technical and policy - based determinations properly within the

purview of the [Commission]. " Town of Manalapan v. Gyongyosi ,

82 8 So. 2d 1029, 1032 (Fla. 4th DCA 2002). In sum, the

undersigned's function here is to determine whether the

Commission had before it any competent substantial evidence

supporting the findings in the Resolution , not whether there is

competent substantial evidence to support a contrary position .

Fla. Power & Light Co. , 761 So. 2d at 1093 ; Educ. Dev. Ctr.,

Inc. v. City of West Palm Bch. Zoning Bd. of App. , 541 So. 2d

106, 108 (Fla. 1989). T hese concepts are particularly relevant

here because there are conf licts in the evidence and the

Commission resolved the conflicts contrary to Florida Media's

position.

A. Point I - Competent Substantial Evidence

Appellant contends th re e findings in the Resolution are not

supported by competent substantial evidence : the Commission's

determination that (a) the proposed tower is incompatible with

the community character of the immediate area ; (b) the tower

will adversely affect the value of the surrounding properties ;

and (c) Appellant did not demonstrate that there are ot her

limiting factors that render existing wireless communication

facilities unsuitable .

i. Compatibility with Surrounding Area

The Code expressly recognizes that compatibility is to be

taken into account in determining whether to grant a major

conditional use. See 110 - 67(2), M.C.C. Florida law permits an

incompatibility finding to be based on aesthetics. See Bd. of

Cnty. Comm 'rs of Pinellas Cnty. , 440 So. 2d at 499 ( court upheld

denial of dock application on sole ground a proposed use would

materially i mpair the natural beauty and recreational advantages

of area) .

Recognizing that each island in the Keys has its own

distinct character, the Commission relied upon the testimony of

numerous residents to assist it in understanding Upper Sugarloaf

Key's com munity and character. A number of residents who reside

in the immediate area of the project expressed their opposition

to the proposed facility on the basis of aesthetics. The

residents had first - hand knowledge of the vicinity and were as

qualified as ex pert witnesses to offer views on aesthetic

incompatibility of the proposed monopole with the surrounding

residential area. Id. Their testimony noted that the character

of the neighborhood was predominately residential and natural.

The y pointed out that the tower w ill be significantly taller

than existing utility poles in the immediate area, all homes in

the area are above BFE, and the tree canopy is no more than

30 feet at its tallest point and w ill not shield the tower's

view from the elevated homes . Also , a large, backup generator

for the studio/tower w ill be placed on a platform as close as

60 feet to existing homes and , besides the effect o n aesthetics,

nearby homes w ill endure loud noise each time it is running . In

addition to these concerns , t he witnesses expressed concerns

that the tower would adversely affect the value of their

property , in one case by $100,000.00 . These observations were

relevant, material, and fact - based and were not "generalized

statements of opposition." Having this testimony before it, the

Commission reviewed the residential character of the

neighborhood, the size of the structure and its proximity to

single - family residences, and made a determination that the use

was not compatible with surrounding uses. Th is testi mony

provide d evidence sufficiently relevant and material that a

reasonable mind would accept it as adequate to support the

conclusion that the proposed tower would be incompatible with

the surrounding residential area. DeGroot , 95 So. 2d at 916.

In sum, the Commission's finding that the applicant did not

satisfy the standard in section 110 - 67(2) is supported by

competent substantial evidence and will not be disturbed.

ii. Impact on Value of Surrounding Properties

The Commission may also deny a major con ditional use on the

ground the proposed use will adversely impact the value of

surrounding properties. See § 110 - 67(4), M.C.C. While

Appellant presented a written appraisal report stating that cell

phone and communication towers d id not measurably affect the

value of adjacent residential properties in two other areas in

the Lower Keys , the Commission had testimony by a certified

residential appraiser, and reports by three local realtors,

which concluded that the facility would adversely affect

surrounding property values. It also had testimony that

Appellant's appraisal was in areas that were not comparable to

the rural residential character of Upper Sugarloaf Key. The

fact that these professionals did not submit their own

countervailing charts or statis tical studies did not diminish

the sufficiency of their testimony/reports. The Commission's

finding that the applicant failed to satisfy the standard in

section 110 - 67(4) is supported by competent substantial evidence

and will not be disturbed.

iii. Appe llant's Failure to Demonstrate t hat There Were

Other Limiting Factors t hat Render Existing Wireless

Communications Facilities Unsuitable

The Commission also conc luded that Appellant did not

demonstrate that there are other limiting factors that render

exis ting wireless communications facilities unsuitable, as

require d by section 146(1)a.6.(ii) (DD) . It based this

conclusion on evidence that at the time of the hearing,

Appellant's radio stations were capable of operating using

existing equipment and towers , and the new tower would not

provide expand ed radio service to the public.

Section 146 - 5(1) a. 6. requires an applicant to demonstrate

that no existing wireless communications facility can

accommodate the proposed tower through either collocation or a

combi ned antenna. This standard can be met in one of four ways.

See § 146 - 5.(1)a.6. (ii) (AA) - (DD), M.C.C. To demonstrate

compliance, Appellant relied on subparagraph (CC), which

requires an applicant to show that existing wireless

communications facilities do not have sufficient structural

strength to support the applicant's proposed facility and

equipment. Appellant presented written and testimonial evidence

relating to the insufficient structural strength of the

immediate five towers (three on Upper Sugarlo af Key and two on

Cudjoe Key) to support colocation on those towers. Further,

Appellant presented evidence that the primary need for the tower

was to serve as a wireless link, and not to provide expanded

radio service or backup for the existing wire servi ce. This

evidence was not refuted. Perhaps out of confusion , which is

apparent in the ir deliberations, the Commission erroneously

assumed that Appellant was relying on subparagraph (DD) , and not

(CC), to comply with the standard. Because there is unrefu ted

competent substantial evidence to support a finding of

compliance with the standard in section 146 - 5.(1)a.6. , the

Resolution's finding that Appellant failed to meet the standard

must be rejected.

B. Point II - Departure from the Essential Requirement s of

the Law

An argument that the Commission incorrectly interpreted

section 365.172(13)(b) 1., Florida Statutes, was withdrawn at

oral argument. Appellant still maintains , however, that the

Commission departed from the essential requirements of the law

by incorrectly interpreting section 146 - 5 in three respects .

Except for Appellant's contention that the Commission

incorrectly interpreted the term "immediate vicinity," as used

in section s 110 - 67 (2) and 1 46 - 5(1)a.14. , the County and

Intervenor do not serio usly dispute Appellant's assertions .

They contend that even if the Commission incorrectly interpreted

section 146 - 5 (1)a.6. in two respects, the Commission's findings

that Appellant failed to satisfy the standards in section 110 -

67(2) and (4) are not affec ted , and sufficient grounds still

exist to deny the application . The undersigned agrees with this

analysis.

i . The Community Character of the Immediate Vicinity

The term "immediate vicinity" is not defined in the Code or

Plan. In con struing the term for purposes of determining

whether the tower would have an adverse effect on adjacent

properties and the community character, the Commission used a

radius of less than a mile , and more than likely one - half mile,

around the site. Appellant contends the Commi ssion departed

from the essential requirements of the law by failing to use the

three - mile radius required under section 1 46 - 5 (1)a.14. (ii) .

That section imposes the following standard that must be

satisfied by applicants for a wireless communications faci lity :

14. Adverse effects on adjacent properties

and compatibility with community character:

i) New antenna supporting structure shall

be configured and located in a manner that

is consistent with the community character

of the immediate vicinity, and s hall

minimize adverse effects including visual

impacts on adjacent properties pursuant to

section 110 - 67(2) and (3).

(ii) The following attributes shall be

considered from vantage points within three

miles of the base of the proposed antenna -

supporting s tructure:

(AA) Height;

(BB) Mass and scale;

(CC) Materials and color;

(DD) Illumination.

Appellant contends the requirements in subparagraphs (i)

and (ii) must be read together , as it would be unfair to require

an applicant to justify the attributes of the tower, including

its height, mass and scale, materials and color, and

illumination , from "vantage points within three miles of the

[tower], " but then allow the Commission to use a much smaller

radius to determine the tower 's impact on adjacent prope rties

and community character. In short, it argues that the

geographic boundar y of the tower's immediate vicinity is three

miles.

The County and Intervenor respond that subparagraphs (i)

and (ii) are two distinct provisions. They assert that if the

Count y had intended to fix the boundary of a community or

immediate vicinity as a circle with a fixed, three - mile radius,

it would have done so in the applicable Definitions sections of

the Plan and Code, and not by strained implication. Or, it

would have adde d a new section (EE) to draw the immediate

vicinity or community character from subparagraph (i).

If Appellant's analysis of the Code is correct , the

"immediate vicinity" would encompass not only all of Upper

Sugarloaf Key north of U.S. Highway 1, but vi rtually the entire

key south of the highway, m ost of Cudjoe Key to the east , and

any land areas that lie within three miles to the west across

the bay . This interpretation would produce an absurd result and

require the Commission to consider the impacts o n areas far

beyond the area or region that surround the site and that could

potentially impact the c ommunity character of the area's

secluded subdivisions . While the rationale for drafting the

Code in th is manner is not of record, t he undersigned is

persu aded that the Commission's interpretation of the Code is a

reasonable one and should be affirmed.

Finally, Appellant's Motion to Strike Attachment C , added

to the record after the Resolution was issued , is granted.

Appellant's Motion to Str i ke two porti ons of Intervenor's Answer

Brief is denied as being moot.

DECISION

Based on the foregoing , the Commission's findings that the

application fails to meet standards 2 and 4 in section 110 - 67

and its interpretation of "immediate vicinity" are affirmed.

The r emaining grounds for denying the application are reversed.

The denial of the application is approved.

DONE AND ORDERED this 1st day of Ju ne , 20 1 6 , in

Tallahassee, Leon County, Florida.

S

D . R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of Ju ne , 201 6 .

COPIES FURNIS HED:

Gail Creech, Clerk

Monroe County Planning Commission

2798 Overseas Highway , Suite 410

Marathon , Florida 33050 - 2227

Lauralee G. Westine, Esquire

Laura lee G. Westine, P.A.

Suite E - 1

800 Tarpon Woods Boulevard

Palm Harbor, Florida 34685 - 2000

(eServed )

Steven T. Williams , Esquire

Assistant County Attorney

1111 12th Street, Suite 408

Key West, Florida 3304 0 - 3005

(eServed)

Van D. Fischer, Esquire

VDF Law, LLC

Post Office Box 420526

Summerland Key, Florida 33042 - 0526

(eServed)

NOTICE OF R IGHTS

Pur suant to article VI, section 102 - 218 (c), M.C.C., this Final

Order is "the final administrative action of the county." It is

subject to judicial review by common law petition for writ of

certiorari to the circuit court in the appropriate judicial

circuit.