Posted by: Patricia Salkin | July 5, 2012

Fed. Dist. Court in FL Holds PUD Governing Documents Do Not Permit Cell Towers

New Cingular Wireless sought to construct a cellular telephone tower in the Benjamin’s Run Planned Unit Development (PUD) in the City of Tallahassee, Florida.  City officials had sought the guidance of a state administrative law judge on the issue of whether a cellular telephone tower was authorized under the PUD’s governing document.  After holding an evidentiary hearing, the state administrative law judge determined that the tower was allowed under the city’s cell tower ordinance, city zoning, and under the PUD governing document.  The City Planning Commission then rejected the administrative law judge’s recommended decision and denied the company’s application to erect the tower after reinterpreting the PUD’s governing document to mean that cell towers were prohibited in Benjamin’s Run. AT&T appealed. 

The Northern District of Florida was charged with determining whether the PUD governing document allowed or prohibited cellular telephone towers, given that the City’s cell tower ordinance and zoning regulations were held definitively to allow such towers.  

In the PUD governing document, Benjamin’s Run is defined as “primarily a residential community.”  Portions of the development were set aside purely for residential use, while others were designated for commercial or office use.  Commercial or office uses were limited to those identified by the Standard Industrial Code (SIC) list, contained within the zoning laws, or else specifically defined as a permitted use not listed in the SIC.  The SIC list includes 64 very specific uses, but does not list cell towers.  For that reason, the District Court held that cell towers were not permitted under the express language of the PUD governing document. 

AT&T argued for a broader interpretation of one of the listed SIC uses, “misc. bus & serv/not elsewhere listed,” which the company argued was meant to serve as a catchall for residential and commercial services PUD dwellers would have wanted installed but which were not specifically delineated in the PUD governing document.  However, the District Court declined to interpret this language so broadly, arguing that a broad interpretation of the “misc” category as a catchall would depart from the purpose of a list that otherwise strictly limits the types of businesses, installations, and appurtenances permitted in the area.  For example, the PUD governing document mandated that all utility services must be located underground, except for antennas which could be concealed from public view on rooftops.  The Court pointed out that it would not make much sense to impose such strict limitations on utilities and antennas, but to freely allow installation of cellular telephone towers, which are potentially more obtrusive. 

For all of those reasons, the court held that the PUD governing document did not permit installation of cellular telephone towers at Benjamin’s Run. 

New Cingular Wireless PSC v. City of Tallahassee, 2012 WL 1398651 (N.D. Fla. 4/3/12)

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