Plaintiff Vertex proposed to build a 150 foot cellular telecommunications tower that would accommodate five wireless telecommunication providers on the River Club Golf Course. A Planned Development Plan for River Club Golf Course was approved by the County Board on December 17, 1987. Plaintiff Vertex filed its application to amend the Planned Development Plan of River Club Golf Course on May 21, 2009, to include the telecommunications tower as a permitted use.
The County Board denied the application with a vote of 6-1. The Plaintiff then sought an injunction ordering Manatee County to approve its application on the basis that the County Board’s decision was not “supported by substantial evidence contained in the written record” as required by the Telecommunications Act of 1996 (“TCA”), 47 U.S.C. § 332(c)(7)(B)(iii).
The Court stated that the party seek to overturn the decision reached by a local government bears the burden of proving that the decision was not based on substantial evidence. While the substantial evidence standard is not as stringent as the preponderance of evidence standard, it requires a court to take a harder look as compared to an arbitrary and capricious standard — the court should not, however, supplant a local zoning entity’s reasonable determinations.
The Plaintiff argued that the County Board was limited to consideration of the conditional use criteria listed in the zoning code. The Court did not agree. The Court held that once the criteria were met, approving the application was permitted, but not required. Compatibility of a proposed development within an existing planned development with adjacent properties is an appropriate consideration — there was no “one size fits all” solution.
The Court indicated that the Eleventh Circuit has determined that aesthetics may consistute a valid basis of denial of a wireless permit if substantial evidence of the visual impact of the tower was before the board (citing Preferred Sites, LLC v. Troup County, 296 F.3d 1210 (11th Cir. 2002)). The Court held that the photo simulations (“when viewing these photographs, it readily apparent that the 150’ flagpole tower far exceeds the height of the next closest structure”), the residents’ testimony, the property value evidence and the testimony concerning alternative sites constituted substantial evidence within the record to deny the application.
For a copy of this decision, contact Anthony Dorland at dorlanda@moss-barnett.com.