TIMOTHY J. CORRIGAN, District Judge.
Plaintiff Wireless Towers ("Wireless")
Wireless provides service to various licensed personal wireless telecommunications providers by locating, leasing, zoning, constructing, and owning personal wireless services facilities. (Doc. 1 ¶ 6). Provider Verizon Wireless requested construction of such a facility to close a purported cellular service gap it was experiencing in northeast Jacksonville, Florida. Accordingly, Wireless proposed to erect a 160-foot Low Impact/Stealth Telecommunications Tower
The Spencer Parcel is located on the south side of Cedar Point Road and is zoned Agriculture ("AGR"). The Pumpkin Hill Creek Preserve State Park (the "Park") is located across Cedar Point road to the north of the Spencer Parcel.
Jacksonville Ordinance Code § 656.1501 et seq. (the "Tower Ordinance") sets out the applicable regulations for the location, design, and operation of cell towers within the City. A stated goal of the regulations is to "[p]rotect the natural features and aesthetic character of the City . . . with special attention to residential neighborhoods, public parks, transportation view corridors, historic districts, historic landmarks,
A telecommunications company wishing to construct a cell tower must submit an application to the City.
Section 656.1506 of the Tower Ordinance, the provision applicable to Track II Towers such as the one proposed by Wireless, reads in pertinent part:
Jacksonville Ordinance Code § 656.1506 (emphasis added).
Thus, pursuant to § 656.1506, a successful Track II application requires the satisfaction of two criteria: one objective (compliance with siting, design and performance standards), and one subjective (compatibility with existing contiguous uses and the general character and aesthetics of the surrounding neighborhood or area). In making its subjective determination regarding compatibility, the Commission
In accordance with § 656.1506, Wireless filed an application to construct the Proposed Tower on April 7, 2009. The application packet included, among other things, a series of photo simulations depicting selected views of the Proposed Tower from the areas surrounding the Spencer Parcel.
The Planning Department sent out requests to various agencies for comments on the Proposed Tower and the photo simulations. On April 27, 2009, Barbara Goodman of the National Park Service ("NPS"), which maintains the Preserve, returned a letter of concern to Bruce Lewis, Wireless Communications Coordinator for the Planning Department. Ms. Goodman stated that NPS staff had "examined the proposed site location and the[ ] photographs" and had concerns about the impact of the Proposed Tower on the viewshed of the Preserve. Specifically, Ms. Goodman stated that "the proposed tower placement will interfere with the views of park users. Those users would be boaters, kayakers, birdwatchers, fishermen, and others who would be on Clapboard Creek. Clapboard Creek is a prime location for aquatic users of the Preserve." Ms. Goodman also noted that Clapboard Creek has a public boat ramp and is a designated kayak trail of the Preserve; as support, she attached a brochure of the Preserve's kayak trail system.
Finding that the Proposed Tower met the objective tower siting, design and performance standards of § 656.1506,
The Planning Department next addressed the potential adverse impact of the Proposed Tower on the Preserve, an environmentally sensitive land within the definition of the Tower Ordinance, and found that the tower's demonstrated visibility from Clapboard Creek and Bogey Branch rendered it incompatible with the character and aesthetics of the surrounding area. The Report cited Ms. Goodman's concern that the tower would interfere with the views of Clapboard Creek users. Specifically, the Planning Department noted that "[p]hoto simulations # 13, # 14, and # 20 provided by the applicant confirm the visibility from Clapboard Creek marshlands.
The Planning Department also stressed the Preserve's designation by the Timucuan Management Plan (the "Plan") as a Special Management Area ("SMA"), and quoted the Plan's objective for such designation as the protection of "natural views within the [P]reserve that are now unimpaired by permanent manmade elements in order to allow the public to experience the pristine, natural character of these portions of the [P]reserve."
Id. at 4.
On June 25, 2009, the Commission considered Verizon's application at a public
To rebut the Planning Department's recommendation, Wireless presented the testimony of Dr. Blick, who spoke about the NEPA assessment his firm had performed on behalf of Wireless. Dr. Blick noted that the NEPA assessment called for an evaluation of both the direct and visual impact of the Proposed Tower on the Preserve, and that a photo simulation analysis of a two and a half mile radius was performed to address the visual impact. Dr. Blick reaffirmed his assessment that the Proposed Tower would have no adverse effect on the Preserve, and noted that the SHPO had concurred with this finding after reviewing both his report and the photo simulations.
Dr. Blick then went through each of the photo simulations for the Commission. When he arrived at photo 13, Dr. Blick noted that "[t]his is probably one that's causing . . . one of the greatest problems here." (Doc. 18, Ex. M at 26). He acknowledged that the tower was "partially visible," and that "about a third, approximately, of the tower protrudes above the tree line" from the Bogey Branch location. Id. Dr. Blick also conceded that approximately ten percent of the Proposed Tower was visible in photo 14 from Bogey Branch, and a similar percentage was visible in photo 20 from the Tidewater subdivision. The Commission had no questions for Dr. Blick.
Mary Solik, Wireless' attorney, then argued that the NPS's objection to the Proposed Tower was an attempt to regulate lands that did not fall under its protection, something that was inconsistent with the City's Comprehensive Plan. However, Ms. Solik conceded that the NPS was a "neighbor" of the Spencer Parcel, and agreed with Commissioner Hardesty's contention that "a neighbor can certainly voice their opinion as to the impact on their particular property, just like any neighbor in any other zoning situation." Id. at 31. Ms. Solik next commented on the Planning Department's concern that the Proposed Tower was visible from Tidewater. She noted that the subdivision, which was approved by the City in 2003, called for 30 lots located directly on Clapboard Creek, and stated "it's hard for me to understand why that's not objectionable and why that doesn't impair the experience of the kayakers and fishermen on Clapboard Creek and just a little bit of the tower visible from nearly 2,000 feet away [does]." Id. at 37. Ms. Solik also argued that the tower would serve the public benefit of providing cell service to users of the Preserve, and concluded "[s]o, yes, you can see the tower from Clapboard Creek, you can see a small portion of it, but there is a public benefit to having it out there as well." Id. at 39.
Ms. Solik then introduced Wireless client representative Mike Burkhead, who spoke about the need for a 160 foot tower. He noted that the height was customer-driven, and that Verizon, the anchor tenant for the Proposed Tower, had actually requested a larger tower before being informed that Wireless was limited to 160 feet by the Tower Ordinance. Chairman Register asked Mr. Burkhead a series of questions regarding the relationship between the coverage footprint and the height of the Proposed Tower. Mr. Burkhead testified that the lower the height—dependent upon topography and the number of providers on the tower—the smaller the coverage circle would be. When asked about the effective range of the tower at 130 feet, Mr. Burkhead replied: "I can't say for sure. I'm not an RF engineer that can give you a professional opinion, but
Commissioner Hardesty then made a motion to deny the application "based on the Staff Report and the competent substantial evidence contained therein." Id. at 48-49. The motion was seconded, after which the Commissioners discussed the significance, if any, that Tidewater's impact on Clapboard Creek should have on their consideration of Wireless' application. Commissioner Edwards stated that he had "a hard time denying one [the Proposed Tower] with that other one [Tidewater] sitting there." Id. at 50. Commissioner Hardesty disagreed, arguing that such an approach would require the Commission to follow bad planning decisions with further bad planning decisions, and that the better course of action was to consider Wireless' application on its own merits without regard to Tidewater's impact.
Commissioner Hines asked whether a camouflage tower had been considered. Ms. Solik replied that during its application review, the Planning Department had requested that Wireless utilize a unipole
Chairman Register then asked the Planning Department staff whether the use of a unipole would change their recommendation. Sean Kelly, Chief, Current Planning Department, stated that
Id. at 54. The Commissioners offered no further comment, and voted four to two for denial. The same day, the Commission issued an order denying Verizon's application (the "Order"), which incorporated the findings and recommendations of the Report.
Wireless then filed suit under the Act, alleging that the Commission's decision
Congress enacted the Act to "promote competition and higher quality in American telecommunications services and `to encourage the rapid deployment of new telecommunications technologies.'" Michael Linet, Inc. v. Village of Wellington, Fla., 408 F.3d 757, 761 (11th Cir.2005) (quoting City of Rancho Palos Verdes, Cal. v. Abrams, 544 U.S. 113, 115, 125 S.Ct. 1453, 161 L.Ed.2d 316 (2005)). "With respect to the construction of telecommunications facilities, Congress recognized zoning decisions by state and local governments had created an inconsistent array of requirements, which inhibited both the deployment of personal communications services and the rebuilding of a digital technology-based cellular telecommunications network." Preferred Sites, 296 F.3d at 1214. Despite this, "Congress also acknowledged `there are legitimate State and local concerns involved in regulating the siting of such facilities,'" Id. (quoting H.R.Rep. No. 104-204, at 94-95 (1995), reprinted in 1996 U.S.C.C.A.N. 10, 61), and drafted the Act so as to "`preserve[] the authority of State and local governments over zoning and land use matters except in . . . limited circumstances.'" Id. (quoting H.R.Rep. No. 104-458, at 207-08 (1996), reprinted in 1996 U.S.C.C.A.N. 124, 222).
The Act was therefore designed to "strike a balance between `two competing aims—to facilitate nationally the growth of wireless telephone service and to maintain substantial local control over siting of towers.'" Omnipoint Commc'ns, Inc. v. City of White Plains, 430 F.3d 529, 531 (2d Cir.2005) (quoting Town of Amherst, N.H. v. Omnipoint Commc'ns, 173 F.3d 9, 13 (1st Cir.1999)). Thus, while local authorities retain the authority to regulate the placement and construction of towers, "[a]ny decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing
As it is undisputed that Wireless' application complied with the objective standards of § 656.1506, this Court's inquiry is limited to whether there was substantial evidence to support the Commission's conclusion that the Proposed Tower is not compatible with existing contiguous uses and zoning and with the general character and aesthetics of the surrounding neighborhood or area. The relevant "record" within the meaning of § 332(c)(7)(B)(iii) is the "written record of all the evidence before the governing body at the time the decision was made." Vertex Development, LLC v. Marion County, Fla., 2008 WL 2994259 at *13 (M.D.Fla. Aug. 1, 2008) (citations omitted). The City contends that the Report, the photo simulations of the Proposed Tower, and Ms. Goodman's letter expressing concern about its impact on the viewshed of the Preserve constitute substantial evidence supporting the Commission's decision. Wireless disagrees, arguing that "mere visibility, with no other evidence, does not equate to `material adverse visual impact' sufficient to support a denial." (Doc. 19 at 14).
The Eleventh Circuit has determined that "[a]esthetic concerns may be a valid basis for denial of a permit if substantial evidence of the visual impact of the tower is before the [governing body]." Preferred Sites, 296 F.3d at 1219 (emphasis in original). This Court recently analyzed the relevant Eleventh Circuit case law regarding the sufficiency of evidence required to support denial of a cell tower application based on subjective aesthetic reasons. See Verizon Wireless Personal Commc'ns, L.P. v. City of Jacksonville, Fla., 670 F.Supp.2d 1330, 1338-41 (M.D.Fla.2009). After its review of the controlling cases, this Court concluded in Verizon that "aesthetic concerns can be a valid basis for denial of a permit by a local governing body, so long as a judgment based on those concerns is supported by objective facts or evidence.
This case and Verizon involve very similar facts. In Verizon, the Commission adopted the Planning Department's finding that the proposed tower was incompatible with the surrounding area—specifically, the Park and Preserve—based on concerns that the tower would adversely impact the viewsheds of these environmentally sensitive lands. Id. at 1335-36. The question before the Court, as in this case,
Under the Act's substantial evidence standard, review of a local government's decision to deny a cell tower application is colored by the requirements of the local zoning ordinance. Wireless Towers, LLC v. St. Johns County, Fla., 690 F.Supp.2d 1282, 1294-95 (M.D.Fla.2010) (citing T-Mobile South, LLC v. Coweta County, Ga., 2009 WL 596012 at *7 (N.D.Ga.2009)). Thus, "[w]hen evaluating the evidence [supporting the denial], local and state zoning laws govern the weight to be given the evidence" and the Act does not "affect or encroach upon the substantive standards to be applied under established principals of state and local law." Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 494 (2d Cir.1999). Under this framework, this Court has the difficult task of scrutinizing the Commission's subjective determination of incompatibility (based upon the factors set forth in § 656.1506 of the Tower Ordinance)
The City has done in this case what it failed to do in Verizon. The Planning Department and the Commission reviewed the photo simulations provided by Wireless and determined—as argued by the "concerned neighbor," NPS—that the Proposed Tower would have an adverse visual impact on the surrounding area. The
Wireless contends that mere visibility of the tower from the Preserve is insufficient to uphold the Commission's aesthetic denial and that some element of "materiality" is required. See Southeast Towers, 625 F.Supp.2d at 1304 (finding that the local government's denial "was not based merely upon general objections to the aesthetic appeal of a telecommunications tower; rather, photographs and specific supporting testimony demonstrated that the proposed tower would have a specific and material impact") (emphasis added). However, the Tower Ordinance makes clear that protecting the viewshed of environmentally sensitive lands such as the Preserve is an objective of the City when considering cell tower applications.
The Commission found that the Proposed Tower's visual impact upon Clapboard Creek and Bogey Branch was significant enough to warrant denial of Wireless' application, a decision supported by photographic evidence. Faced with objective evidence of the visual impact (which evidence was absent in Verizon), this Court cannot displace the Commission's "fair estimate of conflicting evidence" and cannot "freely re-weigh the evidence." American Tower, 295 F.3d at 1209 n. 8. Rather, the
Wireless notes that placement of the Proposed Tower on the Spencer Parcel meets the Tower Ordinance's setback requirements from environmentally sensitive lands and that the Tower Ordinance does not require that towers be "invisible" from those lands. It contends that the Commission's ability to deny an otherwise valid application on subjective aesthetic grounds subjects applicants to uncertainty and confusion, especially where the City fails to inform applicants of more stringent, unwritten requirements for areas it has decided to protect from any visual impact, such as the Preserve.
This Court is not unsympathetic to the difficulty an applicant has in meeting the aesthetic standard of § 656.1506, especially where opinions as to "adverse impact" and "compatibility" can differ. However, subjective though the standard may be, it is similar to other subjective determinations that local zoning and land use bodies routinely make. In any event, pursuant to the Tower Ordinance, the Commission properly considered the Proposed Tower's "potential adverse impact" on the Preserve and made a subjective determination, supported by objective evidence, that the Proposed Tower was aesthetically incompatible with the surrounding area. In this circumstance, the Federal Telecommunications Act was not violated by that decision.
Accordingly, it is hereby
1. Defendant City of Jacksonville's Motion for Summary Judgment (Doc. 20) is
2. Plaintiff Wireless Towers, LLC's Motion for Summary Judgment (Doc. 19) is
3. The Clerk shall enter judgment for the City of Jacksonville and against Wireless Towers, LLC, and close the file.
