Fed. Dist. Court in FL Overturns Zoning Board’s Denial of Telecommunications Tower

This post was authored by Lisa Prainito, Jacob D. Fuchseberg Touro Law Center

Vertex Development, LLC (the “Proposed Tower”) sought to build a 120-foot camouflaged Telecommunications tower on land owned by Christ the King Lutheran Church, whose zoning is R-2 under the Pinellas County Land Development Code (the “LDC”). The proposed tower abuts single-family residential properties in the area, who opposed the construction.

The Pinellas County Board of Adjustment and Appeals (the “Board”) conducted a public hearing where it heard Vertex’s application. The Pinellas County Zoning Staff reviewed Vertex’s application and recommended approval, on the condition that the Board would make the final decision following a public hearing. At the hearing, citizens testified in opposition to the aesthetic impact of the tower, the potential negative impact on home values, the number of existing antennas near the proposed site, the plans to remove trees, and safety concerns related to the tower falling.

The Board ultimately denied Vertex’s application based on evidence of an inadequate separation of the proposed tower and tower compound from the adjacent residential properties by screening devices, buffer area or other appropriate means; and the negative aesthetic impact on the surrounding properties.

Vertex argued three reasons in which the denial of its application for the Proposed Tower was improper.

(1) The aesthetic impact of the Proposed Tower. The residents’ concerns about the aesthetic impact of the Proposed Tower were merely opinion testimony. The residents did not present any objective evidence to which the Proposed Tower would be visible, or the impact it would have on the residential neighborhood. Rather, the residents believed that the Proposed Tower would be an “eyesore.” Generalized complaints are not considered substantial evidence on which the Board can properly deny Vertex’s application.

(2) Adequate separation. Under the R-2 zoning, camouflaged telecommunication towers are to be enclosed by security fencing a minimum of six feet in height. The Proposed Tower compound includes an 8-foot-tall PVC security fence around the 240-foot perimeter, as well as a five-foot-wide landscaped buffer. While Vertex makes no representation that the Proposed Tower will not be visible, the Proposed Tower fully complies with the requirements in LDC. Thus, the Proposed Tower’s proximity to the adjacent residential properties cannot support the Board’s denial.

(3) Incompatibility with residential neighborhood and property values. Under the R-2 zoning, camouflaged telecommunication towers are a permitted use at a maximum height of 75 feet. Thus, Pinellas County has determined that telecommunications towers may coexist with a residential neighborhood. The residents’ concerns focused on the incompatibility of the Proposed Tower with the neighborhood in general, rather than the increased height. A citizen stated that the area “is not an appropriate location for a commercial communication tower.” These concerns focus on the incompatibility of a tower with the neighborhood in general, rather than the incompatibility of the Proposed Tower’s increased height. The Court found it insufficient as substantial evidence.

In conclusion, there was no substantial evidence in support of the Board’s decision and Vertex was entitled to summary judgment.

Vertex Development v. Pinellas County, FL 2023 WL 2756962 (MD FL 4/3/2023)